On Narrative, Legal Discourse, and Yaser Esam Hamdi

Linda H. Edwards, Where Do the Prophets Stand? Hamdi, Myth, and the Master’s Tools, 13 Conn. Pub. Int. L. J. 43 (2013).

Linda Edwards’ article is a thoughtful examination of the hidden and unexplored role of narrative in legal decisions. The article raises fundamental questions about the nature and boundaries of legal discourse and demonstrates that narrative theory and cognitive study can bridge the distance between what one may call ‘traditionalist legal analysis’ and its ‘oppositionist’ critique. The article is a delight. It joins an arresting image to an elegant argument, and it is beautifully written.

Edwards’ arresting image evokes an ancient, walled city. Life proceeds vibrantly inside the walls, where people deliberate and decide questions within a common cultural frame. Outside the walls, prophets shout toward the people, but their voices are lost in the vast plains. Occupants of the city occasionally lob verbal assaults—“Be quiet; stop whining; leave us alone”—but the city largely ignores the prophets. For Edwards, this metaphor captures the relationship between judges and traditionalist legal scholars and critical theorists.

Edwards’ elegant argument posits that narrative frame accounts for the distance between the city and its prophets. The lynchpin of Edwards’ logical argument is that cultural myths and master stories—“preconstructions,” to use Peter Goodrich’s term—underlie the traditional tools of legal analysis. If these myths and master stories are part of law when used by traditionalists, then, for Edwards, they surely are part of law when used in critique.

To illustrate this point, Edwards turns to the “myth of redemptive violence,” tracing its history to the Enuma Elish, an ancient Babylonian creation story. The young god Marduk vanquishes an existential threat to the community in exchange for the community’s unquestioning obedience to him. According to the myth, only Marduk’s redemptive violence can secure the people. Cumbersome social and legal systems can handle mundane problems but fail to protect against existential crises. Only violence, directed against a scapegoat, can redeem the community and define its insiders and outsiders.

Enter Yaser Esam Hamdi, a U.S. citizen captured on the battlefield in Afghanistan in 2001. President Bush declared him an “enemy combatant,” and he was held first in Afghanistan, then at Guantanamo, and finally within the United States, without charges, without access to a lawyer, and without process. Hamdi’s father filed a habeas petition on his behalf that in part challenged his designation as an “enemy combatant” based on the circumstances of his capture. The government defended with a cursory affidavit based on hearsay.

The Fourth Circuit begins its judgment denying the Habeas petition by describing the events of September 11, cavalierly declares the enemy combatant issue to be “undisputed,” then orders the habeas petition dismissed. For Edwards, this opinion illustrates the myth of redemptive violence: for the Fourth Circuit majority, habeas will not protect us, only violence wrought on the outsider Hamdi will—forgetting almost entirely the inconvenient fact of Hamdi’s citizenship.

Eight justices of the Supreme Court reject this conclusion—albeit on three different grounds and with important doctrinal differences among them. According to Edwards, whatever their doctrinal commitments, these eight justices are operating on a different cultural myth—this time, a story about the founding of our Nation, and the habeas corpus protections from government overreach that are enshrined in our Constitution.

It is one thing to observe narrative at work; however, it is a quite larger challenge to define space for narrative in legal discourse. Edwards recognizes that outsider narratives are not meant to be set in bald opposition to the traditional tools of legal analysis. Conversely, cognitive science teaches that confronting a decision maker with traditional merits arguments merely triggers the decision maker to generate competing merits arguments that protect his or her own preconstructions.

Edwards argues instead for a values-involved mode of argument that attempts to reframe the dominant narrative into one that opens the decision-maker’s mind to new ways of seeing a legal problem and ultimately, new solutions. Edwards revisits Richard Delgado’s point made nearly twenty-five years ago: the law is a war between stories. Consequently, Edwards advocates a wide definition of law that admits and attempts to make explicit the hidden myths and master narratives that underlie traditional legal argument.

An important contribution of Edwards’ article is its insight into how cognitive science and neurobiology impel people toward narrative schemata. Narrative is part of our human DNA and therefore provides a cognitive foundation for rational legal argument. While Edwards recognizes that narrative does not explain all legal outcomes, the scientific evidence adds a compelling reason to examine our preconstructions closely. Edwards’ long experience as a scholar of rhetoric well qualifies her to undertake such a study.

More reflection on this topic is surely necessary. While Hamdi offers a nice example of courts motivated by opposing master narratives, and so is quite useful for understanding how narrative influences legal outcome, these opinions do not adequately capture the traditionalist-critical dynamic. The Justices of the Supreme Court and the Judges of the Fourth Circuit differ in the Hamdi case, but none is an oppositionist in the sense of a critical theorist. The uphill climb is significantly steeper for discrete insular minority groups that face a long history of exclusion from the structures of power and who often suffer far from the spotlight.

At the end of the day, Edwards’ piece not only provides fresh thought about the effect of narrative on legal outcomes, but it also prompts me to reflect on my own teaching in legal research and writing classes. The piece vivdly demonstrates the power of narrative frame. Factual framing of a case should not be limited to the Statement of the Case in a brief, or even to that amorphous concept, “theory of the case.” Instead, it should underscore and reinforce the doctrinal arguments contained in a brief, and this is a lesson that beginning law students would do well to learn. For them, coherence in persuasive legal documents must take on deeper meaning. At a very pragmatic level, Edwards’ insights have the power to prompt advocates to broaden the scope of tools available in the quest for justice.

 
 

Liberty, Equality, and the Rule of Law

T.R.S. Allan, Freedom, Equality, Legality in James R. Silkenat, James E. Hickey Jr., Peter D. Barenboim, The Legal Doctrines of the Rule of Law and the Legal State (Springer, 2014), chapter 11.

There is an innovative, very influential, and deeply pernicious tradition in English law and jurisprudence equating liberty with license and the rule of law with legal despotism. The beauty of this short chapter by T.R.S. Allan lies in its full implicit refutation of this shared misconception, as found in Thomas Hobbes, John Austin, and H.L.A. Hart, and its shorter explicit repudiation of their gentle contemporary apologist, Joseph Raz. Allan embraces traditional conceptions of the rule of law, demonstrates their central position in British jurisprudence, and makes sense of the doctrines of A.V. Dicey, often misstated as mere legal formalism.

“The rule of law and not of men” in its original, best, and most coherent sense is the antithesis of arbitrary power. This is both a political ideal and a constitutional doctrine: law and government are only legitimate when they serve justice and the common good of their subjects. To legislate, adjudicate, or execute the laws to any other end is contrary to the proper purposes of law, and therefore corrupt. ”Liberty” consists in subjection to just laws, made for the common good — not (as some would have it) the simple license to do what one wants.

Prof. Allan makes it clear that there can be no liberty without the rule of law, when the rule of law includes all the procedural and substantive safeguards necessary to contain the private will and self-interest of those in power. This means more specifically that the much-touted doctrine of “parliamentary sovereignty”, or any other form of legislative power, must give way to judicial supervision, when legislation violates rule of law principles, fundamental rights, or reason, in light of the public good.

Constitutionalism and the rule of law are closely related concepts, in that the first exists to achieve the other. Both serve “liberty,” “equality,” and “legality” by preventing public or private oppression. Allan rightly identifies “liberty” as citizenship under the rule of law, “legality” as governance under the rule of law, and legal “equality” as a comprehensive respect for human dignity, secured by the rule of law. The rule of law cannot be reduced to formal equality before the law, but also requires a substantive equality of concern and respect for all persons in framing and administering the laws that will govern them. There is no rule of law when the legal system serves one faction or segment of society at the expense of the others.

This brings up the most important distinction between Raz and Allan. For neo-Hobbesians “the rule of law” is purely procedural — techniques of legal formalism that make the law more certain, for good or ill, according to the intent of the legislator. For Allan the rule of law is essentially substantive — the project of replacing private interests with the public good in framing and administering justice. This latter understanding is more useful, not only because it accords better with the history and current usage of the phrase, but also because it captures the actual value and purpose of law, which is not certainty, but justice.

As Allan explains, when the rule of law is treated as a mainly formal ideal, its connection with liberty consists in restraining discretion. But discretion is an inevitable and at times unavoidable aspect of administering the law. The purpose of the rule of law is not to abolish discretion but to guide it towards its proper end, which is justice. The lesson is not that there should be no administrative or executive discretion, but that discretion should not be arbitrary. The rule of law prevents oppression by constraining arbitrary power.

Liberty, equality, and the rule of law are all powerful and resonant terms, which makes it tempting to misuse or redirect them, as Thomas Hobbes did in the interest of stronger government and stability. But the words’ positive connotations first arose from and properly only belong to their original and more natural meanings, which is why Allan’s argument is so refreshing. He has reclaimed the rule of law for the English legal tradition, and restored old conceptions of democracy and parliamentary sovereignty, to make them once again compatible with the rule of law, constitutionalism, the common good, and justice.

 
 

Animals, Rights, and Legal “Bifurcation” In Kant

Christine Korsgaard, Kantian Ethics, Animals, and the Law, 33 O.J.L.S. 629 (2013).

The moral arc of the universe is long. But how long is it? If we measure from the civilizations of ancient Greece and Rome, it is long enough to bring into the fully human fold  whole categories that had once been denied equal moral status: notably slaves, women, and people of color, who had sometimes been regarded as hardly more significant, morally and legally, than (non-human) animals. It may be an exaggeration to say that Roman law adhered to a rigid, exhaustive and mutually exclusive bifurcation between rights-holding persons and non-rights-holding things, but the eminent Kant scholar Christine Korsgaard does not deny that Kant was “consciously following” precisely that view (P. 630, emphasis original). In this superb paper, she takes up the task of showing that Kant’s thought contains elements that undermine what she calls “the legal bifurcation” (P. 629) of the world into persons, on one hand, and things, on the other. That task is instrumental to her aim of showing that Kant might consistently have adopted a more respectful view of the moral status of animals, and that the framework of Kant’s thought indicates an attractive way of understanding what that third status—of neither person nor mere thing—might be.

Working within Kant’s general account of rationality, agency, and personhood, Korsgaard proposes that we recognize a third category of morally significant being: that of creatures who are not mere things, and yet are not persons either.  The tantalizing suggestion is that at least some animals populate this third category, and that they are not apt objects of ownership, at least not in the usual sense.  This of course is contrary to Kant’s statement in Anthropology from a Pragmatic Point of View:

The fact that man can have the idea ‘I’ raises him infinitely above all the other beings living on earth. By this he is a person; and by virtue of the unity of his consciousness, through all the changes he may undergo, he is one and the same person–that is, a being altogether different in rank and dignity from things, such as irrational animals, which we can dispose of as we please.

Kant’s official view is not so crabbed as to deny—as Descartes did—that animals can feel; but it is not so generous as to hold—as Bentham did—that feeling, rather than thinking, is all that morally matters.  Korsgaard wants to show how Kant could get over onto the right side of history (without surrendering to Benthamite sentimentalism).

Even so, taking animal feeling into account is Korsgaard’s key move.  Reason does not—and cannot—give us direct access to a noumenal world of absolute value.  As rational agents, the goods we choose to pursue are ones that are in a sense relative to us, and to our animal nature as feeling creatures.  But our rationality requires that we claim absolute value for our ends, in the sense that what we deliberately value gives everyone a reason to promote what we, by our choosing, necessarily claim to be valuable.  Our rationality thus is an expression not only of our membership in the Kingdom of Ends, it is also an affirmation of our “animal spirits,” as it were.

This understanding of the involvement of feeling and reason in our makeup furnishes grounds for respecting feeling beings who, nonetheless, lack a “transcendental unity of apperception,”and who, therefore, are not capable of personhood in the proper sense of the word.  For Korsgaard, the capacity for feeling is evidently tied to the possibility of there being a “good for” a feeling being; and the good-for “buck” passes into reasons for action on the part of members of the Kingdom of Ends.

Korsgaard acknowledges that much more needs saying to develop a complete account of the moral status of animals.  She also acknowledges that her reading does nothing to elevate the moral status of non-feeling objects.  The link between having feelings and having a “good” is not explained, and an Aristotelian teleological account of having a good is not available to Kant.  (Kant’s metaphysical scruples govern here too, as she points out.)  But can’t plants and lower invertebrates be said to have a good, despite lacking feeling?  Plausibly, their good makes no (or much lesser) claims.  Feeling, then, seems to have an implicit role beyond that of merely specifying an aspect of a creature’s good.  If that thought is combined with the burgeoning evidence that at least some animals do possess some rudimentary conception of self, it may begin to appear that what ought to go is not only bifurcation, but trifurcation and—in fact—the very idea that “bridge claims” (P. 635) connecting categories of entity with an internally homogeneous moral status are what we really need.  Compare the moral status of children.  These undoubted members of our species are allotted greater or lesser rights and duties based upon relatively fine-grained (though arbitrary) presumptions about degrees of moral fitness—and in application even these yield to finer-grained, multi-dimensional judgments about the individual.  Why not regard the whole matter of moral status as one not of category but of degree?

Korsgaard elsewhere argues for a surprisingly stronger “pro-animal” position.  In the chapter, “Interacting with Animals: a Kantian Account,” in the Oxford Handbook of Animal Ethics, she concludes:

We may interact with the other animals in ways to which we think it is plausible to think they would consent if they could—that is, in ways that are mutually beneficial and fair, and allow them to live something reasonably like their own sort of life. If we provide them with proper living conditions, I believe, their use…perhaps even as providers of wool, dairy products, or eggs, might possibly be made consistent with that standard. But it is not plausible to suppose a nonhuman animal would consent to being killed before the term of her natural life is over in order to be eaten or because someone else wants the use of her pelt, and it is not plausible to think she would consent to be tortured for scientific information. (P. 110)

A surprising thing about this is that it follows in the train of an argument that non-human animals are incapable of claiming standing as ends in themselves, and are incapable of genuinely consenting to laws of interaction, for they are incapable of choosing whether or not to interact with us. It is unclear how much of this incapacity is assignable to the vulnerable situation of non-human animals, and how much to the rudimentary nature of their intellects. Other entities that are incapable of consenting presumably are not entitled to the benefit of this sort of counterfactual contractualism even if they are creatures that can be said to have a “natural” good.  Plants, for example, can’t easily be imagined to consent to being burnt or cut to pieces for human purposes, although they might imaginably consent to giving up their fruit.

Why are some creatures who are incapable of consent, but are of such nature that their lives can go better or worse, entitled to the benefit of the counterfactual test, and others not?  The answer has to be that plants and other unfeeling things (some of them animals) lack what is minimally required for moral status: the capacity to feel.  When we humans make the claims that establish us as members of the Kingdom of Ends we do so not only on behalf of our rationality but our sensibility, and in doing so—on Korsgaard’s account—we legislate that there is reason to respect the feeling-bound good of all feeling creatures.  Korsgaard does not explain why, in staking claims for ourselves, we do not simultaneously stake a claim for ourselves simply as natural organisms.  Again, sensibility—as contrasted  both to bare organism and to bare unfeeling sentience—seems to do a lot more work in Korsgaard’s account than Kant ever expected or wanted of it.  We have to hope that Korsgaard will further pursue, on her own behalf, the questions she has taken up here, on Kant’s—though it is unclear whether the result will be a view that can truly be called Kantian.

 
 

Natural Law and Its History

John Finnis, Natural Law Theory: Its Past and Its Present, 57 Am. J. Juris. 81 (2012).

The image of natural law to the modern mind is one in which certain actions, states-of-affairs, and “values,” are represented as being right or wrong, reasonable or unreasonable, depending upon whether they can claim to be in accord with or contrary to nature. Though apparently hard to shift, this image, as John Finnis and others have pointed out on numerous occasions, is misconceived: the orientation of thinking running rather from what is reasonable and right to what is (therefore) in accord with nature.

The matter is dealt with in some detail in the second chapter of Natural Law and Natural Rights, and the rest of that book constitutes an example precisely of arguments of practical reasonableness (a reworking of Aquinas’s prudentia) as the ground of a theory of “natural law” (i.e. a fully critical basis for evaluation of human acts and institutions, and the subject-matter of the social sciences). It is taken up again, in much greater detail, in Finnis’s book on Aquinas, in the context of Aquinas’s own account (itself quite clear on this point) of human choosing and deliberating. The present essay situates the discussion within a much broader historical context, ranging from the treatment of “nature” in Platonic and Sophist philosophy through to the positivism of Hart and Austin. Just as the idea of “natural law” must be logically separated from the beliefs and opinions of those who assert its existence (only the latter having a temporality and history), so the skeptical, nihilist or agnostic assertion that there is no moral law, but only the satisfactions of “animal” nature (subrational emotions, desires to which reason is the ingenious servant), represents a single permanent idea which plays out in numerous different forms in different times and places. How could it be otherwise? For the skepticism is directed precisely at reason’s governance, its ability to identify and work its way towards those human goods that stand at the center of natural law thinking. In one long argument, the essay unpicks, steadily and relentlessly, the confusions that underpin the strand of skeptical thinking that unites the Sophists’ outlook to Hart’s own commitment to legal positivism.

Many discussions of positivism have been hampered by uncertainty as to whether the subject of discussion, the “relationship between law and morality”, is conceived as a relationship between two sets of norms held (conventionally) by members of a community, or as a relationship between just such a set of conventional (legal) standards and some truths about right and wrong in human choosing and acting (P. 90-91). But the features of Hart’s own discussion of law make clear that the real issue is none other than the question whether there is indeed knowledge of human good and evil (P. 99). Hart believed that one could elaborate a theory of law without taking a stand on that issue. But Hart’s very case for conceiving law as a union of primary with secondary rules, descriptive as it may be of the actual workings of (certain, mature types of) legal order, is nonetheless formed from a series of evaluative efforts to comprehend what is wrong with, and thus what is required in order to remedy, the defects of immature, “non-standard” legal orders or of societies that lack law (P. 98-99). Thus his explanation of the functional operation of secondary rules (as opposed to their malfunction) reaches back into a consideration of the character and causes of such defects. Despite Hart’s suggestion that their nature is fully comprehended by the ways in which they manifest inefficiency, the reality is that they embody defects of justice, matters which are suspended only to come crashing back in Chapter IX of The Concept of Law.

There are two respects in which the essay might have gone further. First, it could have indicated a means (if there is one) of tackling those virulent forms of skepticism that are anti-rational. One of the strongest lessons of the essay (and of Finnis’s work generally, building on Aquinas’s own insights) is that the skeptic is led to truth not by leading him into contradiction, but by exposing the commitments which underlie all practical thinking and deliberation. Those who, for instance, commit themselves to a maxim of “live and let live” must be prepared to defend that principle against the very moral tyrants they do not wish to become; and in doing so immediately set normative limits to human action. The point is not that such a principle, applied without restriction, annihilates itself (though that is true), but that its underlying assumptions involve a commitment to autonomy as a “human good” to be pursued and secured: a good the nature of which is only fully understood when placed within those normative structures which limit human action, and which can then be elaborated in terms of other, distinct goods: sociability, knowledge and the like.

The success of this argument (i.e. not its logical consistency but its success in actually moving minds toward acceptance of truth) is dependent upon the skeptic’s realization that morality is not held “as positive” but “as true” (P. 86). But this is often not the case: some modern “liberals” claim to assert moral principles precisely as cultural artifacts, refusing even in the case of deep commitments (such as injunctions against hate crimes, rape, murder) to acknowledge them as more than merely conventional commitments: they are indeed held self-consciously “as positive”. Aristotle famously acknowledged that arguments alone cannot move men toward truth: the mind must first be cultivated so as to be open to rational persuasion. How then should the philosopher go about cultivating that integration between rational and subrational factors (to use Finnis’s terms) in the human personality required in order to persuade recalcitrant listeners?

Secondly, natural law’s own identity and commitments could be further clarified by considering these theses in relation to those (major) representatives who lie outside the Thomist tradition to a greater or lesser degree: such as Grotius or Locke for example. There is indeed some debate as to the extent to which Grotius departs from Aristotelian and Thomist premises, but his own position is grounded in an idea of self-ownership (or self-right, precisely as a ground of further duties) that Aquinas specifically rejects. Do all moral understandings reach back into ideas of human goods as the ground of their intelligibility (or truth), so that eudaimonism is an inescapable basis for ethical reflection?

The essay is not really directed toward answering either of these questions. But as a self-standing inquiry and as an eloquent survey of Finnis’s considerable body of thought, it should command careful and sober attention.

 
 

Liberalism Revisited

James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).

We live in a liberal age, philosophically speaking.  One may argue about what variant of liberalism is most persuasive but, on the whole, most theories of law or politics do not seriously question a slate of liberal doctrines, most especially the primacy of individual autonomy, the commitment to “negative liberty” and thus the limitation of state coercion by the harm principle.  Perhaps it is an inevitable sign of the dominance of liberalism that a number of scholars have started to more acutely feel its shortcomings more acutely.  Thus liberalism is accused by some of being too thick, requiring commitment to a comprehensive world-view that makes individual liberty primary and excluding those who do not take controversial issues of law and politics to be decided by individual rights.  Gaining more momentum perhaps, are those who find liberalism too thin, arguing that the hegemony of individual rights leads our legal system to pay insufficient attention to the encouragement and enforcement of the duties of citizenship, civic virtue and morally valuable forms of life of both citizens and communities that cannot flourish without collective political support.

In the face of this increasingly strenuous criticism from both sides steps in Fleming and McClain’s Ordered Liberty: Rights, Responsibilities, and Virtues.  Fleming and McClain take up a rather ambitious task.  They seek to reform and/or illustrate, in turns, that liberalism of a certain type, their “Constitutional Liberalism,” can meet the challenges leveled at liberalism.  The text places itself firmly in that intersection of law, feminism, constitutional theory and political theory.  For those interested in purely philosophical discussion of liberalism, the book may seem to only weave in and out of important conversations.  That said, it does engage with important and popular contemporary philosophical and theoretical positions in the liberalism literature on liberalism, from Michael Sandel on one side to Cass Sunstein on another.

Though much is attempted, the authors ultimately have two goals.  The first is a theoretical one.  The authors wish to show that a perfectly plausible form of liberalism can answer its main criticisms.  Thus their liberalism neither requires an imperialist view of individual rights that shuts down political debate by imposing a uni-faceted rights-based comprehensive worldview.  The authors argue that even those who believe in the spirit of Dworkin’s famous phrase, “rights as trumps,” do not take this to mean that rights can be exercised without responsibility.  Indeed, the authors point out that within Dworkin’s conception, the very point of having rights is the role of autonomy in living a life for which one can authentically ascribe (self) responsibility.

Secondly, liberalism need not be in grave tension with other moral goods, eschewing all talk of thoughtful responsibility, civic virtues and ethical development and enshrining personal rights as concerned with the mere legal immunity to engage in any behavior, no matter how ethically poor; that is, liberty as license.  One sees that rights need not insulate one from responsibility but are a precondition to certain types of responsibility.  Secondly, knowing that someone has the legal right to act in a certain way does not insulate others from criticizing, praising, supporting or cajoling one to or against the exercise of that right.  Indeed, as Rawls points out, there are some virtues that the state must necessarily support precisely because they are necessary to the project of functioning citizenship.  The authors also do a service by reminding that what is often romanticized as our august past of shared civic engagement was often bought at the tremendous cost of homogeneity, enforced by sexist and racist conventions.  None should too easily rely upon a time when coherence was subsidized because minorities knew their place and women were trapped in bad marriages.

Having proposed that liberalism can make room for both the responsible use of rights and the promotion of genuine civic virtue, the authors then turn to reveal their second, and perhaps core, ambition.  The authors march through a minefield of controversial legal areas—from delicate areas of family law and the balancing of parental rights against the state’s interest in children and education, to the balancing of rights against discrimination against the “rights of association,” issues of same sex marriage and abortion— applying their model of Constitutional Liberalism.  Their goal is to show both that their moderated form of liberalism, with a mild dash of perfectionism, is not only attractive but best describes the actual legal landscape.  The authors argue that current constitutional law reflects the same features they noticed in the philosophical structure.  Constitutional law, they propose, takes rights seriously without making them absolute.  Further, while the law respects a certain sphere of rights for every individual, it does not insulate one entirely from legal and political pressures that encourage civic virtues, promote valuable ways of living or the responsible use of legal rights.

To that end, the authors carefully excavate a string of important constitutional law decisions to illustrate what some will find rather surprising: the simple tripartite caricature of strict scrutiny, which is accused of allowing individuals carte blanche if acting within protected legal classes, obscures a much more subtle balancing of rights and social interests.  To take one highly visible example, the authors survey the abortion rights cases to reveal how rarely the Supreme Court has actually invoked, either formally or informally, the strict scrutiny, intermediate scrutiny and rational basis test that is the core of first year Constitutional law.  Instead, even in the very cases in which rights absolutism is decried, the court shows sensitivity to both the rights of individuals, the responsible use of those rights and the state’s incentives to protect and cultivate civic responsibilities.

A book with such broad ambitions will inevitability leave some important areas insufficiently addressed.  Because this text is in fact more constitutional theory than pure political philosophy, there is plenty to question.  Most importantly one might hunger for an underlying philosophical coherence to undergird the entire project.  The worry is that while many facets of their constitutional liberalism may be attractive, it is not clear what justifies it as a whole.  Ultimately, one might accuse the authors of simply choosing a pastiche of attractive positions, a little bit of rights talk, a bit of civic virtue and a mild perfectionism to form a theory that gives one everything they want.  This suspicion especially nags because there seems little their theory cannot accomplish.  Nor do the authors ever give us a sense of what drawbacks their theory may entail (an all too familiar absence in academic work).

That said, there is nothing unique in stretching to build a most attractive (even overly attractive) theory and one can always wish authors wrote the book you wanted them to write.  Yet in bringing together many strands critical in the questioning of liberal orthodoxies, engaging in spirit with a broad range of theorists and philosophers and applying their theory in an illuminating way to current constitutional questions, Fleming and McClain introduce the interested reader to an important conversation and jog us out of old, unthinking habits.

 
 

Faking It

Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151 (2013).
Stacy Hawkins, Selling Diversity Short, 40 Rutgers L. Rec. 68 (2012).

I’ve been the first Latina hired in a number of institutions, and on most occasions, those institutions have proudly and visibly trumpeted my hiring, in institutional media and outside as well. I’m well aware that my identity (if not my name) plus my hiring has accorded value to the institution. I’m also aware that in at least one institution, my hiring was an instance of what race scholar Nancy Leong calls “thin diversity,” but what I call fake diversity: signaling a commitment to racial diversity that didn’t really exist. Was I harmed (or was the public harmed) by this fake signal? Perhaps. But I like to think that I earned compensation, in the form of a job, and that the public benefited, because I might have helped to transform the institution in a real way despite the fake signal at the outset. All in all, I think a fair trade.

I was very excited to read Nancy Leong’s article, Racial Capitalism, and then to read Stacy Hawkins’ reply to Leong, Selling Diversity Short. These two scholars are welcome additions to the conversation about affirmative action, fresh voices in what can sometimes be a conversation that has become a bit tired and played out. Thanks to the wonders of electronic publishing, I might actually have read the critique before reading the actual article. Hawkins’ critique came out online in 2012 and Leong’s article in 2013. But in whatever order I read them, the back and forth among these scholars was terrific.

Leong’s article, which is quite hefty, sets out what is in fact a fairly simple argument: racial capitalism, in which whites trade on a connection to nonwhites to falsely signal a commitment to racial diversity, is harmful. Leong argues that nonwhites’ identity gains value as part of this false signal of a commitment to diversity, deployed by whites to create a reputation for racial tolerance. Leong identifies three harms to nonwhites from such exploitation: first, using nonwhites as a signal reinforces the commodification of racial identity and degrades that identity by reducing it to commodity status.  Second, using nonwhites as a signal fosters racial resentment, because nonwhites will feel used and exploited. Third, false signals hinder the opportunity for more meaningful reform.

Leong is at her best when she traces the use of racial identity historically, and when she theorizes this use of identity in the creation of a fake signal as a form of Marxian capital. Less persuasive are her arguments that racial capitalism makes race a form of social capital, for reasons I will explore in just a bit. But her theoretical approach to the subject is smart and sophisticated. Doubtless someone pushed her to come up with a “remedy” to racial capitalism, and I think she could easily have skipped that section altogether without losing too much (despite her best efforts, the vague prescriptions feel a bit forced). But this is a minor quibble.

Stacy Hawkins takes Leong to task for overvaluing diversity’s negative attributes and for undervaluing its positive attributes. More specifically, Hawkins argues that Leong focuses overmuch on the fake form (in Leong’s words, thin version) of diversity rather than on the thick version, a critique I found well placed. Leong never says, for example, how many institutions are faking it, and how many not, though it is certainly plausible to suggest that many are faking it.

Second, and relatedly, Hawkins accuses Leong of exaggerating the costs associated with the harms of the fake signal, and then of minimizing the benefits that come along with the real (thick) version of diversity, a critique that I also find partly persuasive. For example, Leong does not consider the possibility that even those people of color who are pressured to conform to white institutional norms might nevertheless resist and push for a real commitment to racial liberation.

Whoever might have gotten the best of this exchange, and it is hard to say, I am thrilled to see this point-counterpoint play out so well and so smartly (and so electronically quickly). I heartily recommend reading both in the same sitting.

My primary intervention in this exchange (other than to self-absorbedly insert my own experience into the mix as a would-be victim) is to suggest that both scholars would have benefited from focusing more firmly on fakeness—on the falsity of the signal that the white person or institution wants to send.

Leong starts out with this focus explicitly, but loses that focus as she goes along. So for example, when she speaks about the economic value of a white connection to a person of color (a term so much more affirming than Leong’s term of nonwhite) as a signal, she fails to probe with more particularity the difference between the value of a true signal and a fake one. Both have value, to be sure, but the value of each kind of signal comes from different sources; the true signal can properly be characterized as social capital, but the fake one less so.

The value of the true signal might be properly characterized as social capital, because the true signal trades on the meaning of the authentic connection between the institution and people of color in the institution’s networks. The fake signal isn’t really social capital. The fake signal might just as well be satisfied by pictures not of Diallo Shabazz, but of a model who could be paid for both posing and for temporarily enrolling for appearance’s sake at the University of Wisconsin. The value of the real connection to a student of color to the university as opposed to a fake student model comes not from the resources transferred through the connection or the real information provided by the signal (as befits social capital), but from making it less likely that the fakeness of the signal could be discovered. Leong might have benefited here from a vast literature in law and economics on the subject of signaling.

Leong also loses sight of the distinction between fake and real signals when she discusses the harms associated with commodified racial identity. Indeed, I was never sure whether she might find the same harms she identifies to exist if the signal were a true one. Wouldn’t using people of color as a true signal still reinforce the commodification of racial identity and trigger resentment? She doesn’t really take up the question.  And even when hired by an institution that really was committed to diversity and reform, I have always been aware of being “used” to send the signal of that commitment, not that I have minded at the end of the day.

But Hawkins also seems (perhaps for the reasons I just identified) not to fully appreciate that Leong has tried to limit her claims to fake signals, and not real ones.  Hawkins thinks that Leong’s target is diversity both thick and thin (in my terms, signals both true and fake). Hawkins’ major complaint is that Leong emphasizes the disadvantages of the fake/thin while underrepresenting the advantages of the true/thick. But Leong explicitly puts the value of real signals or thick diversity per se to one side, though as I’ve said, her critique might well be read to apply to real signals as well as fake.

Still, this exchange was wonderful to read and I very much enjoyed doing so. The two pieces have much to recommend them: a productive disagreement, and a set of positions by both scholars well theorized and grounded in historical perspective, among other things. I’d love to see these two hash it out on the stage on a panel somewhere, with the folks to whom they cite to fill out the panel as commentators!

 
 

The Challenge of Boilerplate

Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press, 2013).

Although Margaret Jane Radin is perhaps best known for her work in property theory, she has recently been focusing her formidable intellect on questions of contract. Boilerplate reflects her first book length treatment of these topics, and there is much to like about this book. Here I will focus on one contribution that the book makes to normative jurisprudence, which is to clarify the centrality, pervasiveness (and perhaps even inescapability) of a specific problem for modern contract theory. The problem involves what I like to call a generalized lack of theory-to-world fit: if Radin’s arguments are valid, then a very broad range of modern contract theories are addressing the wrong subject matter, given the way that contracts increasingly work in the modern world.

That some market practices pose special problems for some theories of contract is, of course, no big secret. Rarely, however, is it acknowledged just what a general threat some prevalent practices pose to modern contract theory as a whole. For that defect, Boilerplate provides a timely and incisive cure.

Radin begins her central line of argument by asking the reader to distinguish between two hypothetical worlds, which she calls “World A”, or the “World of Agreement”, and “World B”, or the “World of Boilerplate”. In World A, all of the agreements are by stipulation between persons of roughly equal knowledge, capacity and bargaining power. All of the terms are ones that could have been modified in negotiation—both in the sense that every party is willing to change any particular term for sufficient consideration and in the sense that all of the contracts are reached in a context with meaningful alternative arrangements. When parties enter into contracts, they do so only after conscious deliberation over the entire set of included terms and with full understanding of their content. All of the contractual terms in World A are therefore the joint products of private parties’ subjective wills. They are also all “freely chosen”, in a particularly robust sense of the word.

It follows that all of the contractual terms in World A have an important property, which is highly relevant to political theory. Because they have been freely chosen, their enforcement should—all other things being equal—promote individual liberty. (The standard proviso naturally applies here: the parties must also exercise this liberty in a manner that is consistent with the equal liberty of all others, and so not, for example, in ways that would violate ordinary criminal laws.) For committed libertarians, or anyone else who takes the value of liberty to be particularly foundational, strong prima facie reasons thus exist for the deferential enforcement of all terms that result from unregulated private negotiations in World A.

One need not be a libertarian to value liberty, however, and so one need not be a libertarian to accept this last conclusion. Liberty actually plays a central if less foundational role in a broad range of liberal political theories. For utilitarians like Mill in On Liberty, liberty is, for example, endorsed because well socialized individuals with lived experience tend to acquire some privileged epistemic access to the routes to their own happiness, and also to encourage the kinds of “experiments in living” that help produce this valuable kind of knowledge. John Rawls is most famous as a critic of utilitarianism and for his work on distributive justice. Still, his first principle of justice—which is lexically ordered above his principle of distributive justice in a well-ordered liberal state—is that “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty of others”.  In the degree to which they value liberty, Rawls and Mill are thus not all that far apart. Some theorists, like Charles Fried, have also interpreted the Kantian commitment to autonomy to require robust deference to freedom of contract, viewed primarily as a negative freedom from governmental constraint in the private marketplace. Fried thereby misreads Kant on autonomy in my view, but there is no doubt that Kantian political theory grants liberty under the right construal (as true autonomy, or positive freedom) a central place in restricting legitimate state action. Liberty interests can thus be grounded in a broad range of otherwise differing approaches to liberal political theory, and it will be highly relevant on any that World A terms are the products of free choice.

As Radin rightly emphasizes, some such link to political theory is critical for normative contract theory because the legal enforcement of contracts involves the coercive power of the state. A specifically political form of justification for it is therefore needed. World A is one in which an intuitive and broadly endorsed set of liberty interests converge to make a compelling prima facie case for the legitimacy of enforcing most (if not all) contractual terms that arise from private negotiations in unregulated markets. Hence, one might plausibly think that the right link to political theory exists.

When thinking about the “typical” contract and “ordinary” market activity, World A has played an enormous role in the philosophical imagination. Its free and voluntary exchanges are often thought to provide the paradigm case of private market activity, against which most real world transactions are deemed rough approximations. Legal rules that protect initial property entitlements, and enable private parties to engage in unregulated market exchange, are thus often thought to promote individual liberty by default—and, indeed, to generate one of the most important domains of private freedom. Radin is thus surely right to suggest that “[l]iberal ideal thought holds . . . that the state is justified by the necessity of establishing and maintaining a background infrastructure by means of which private actors can realize and exercise their freedom through private ordering.” (P. 44.)

So what about World B, or the hypothetical “World of Boilerplate”? At least in the context of consumer transactions, World B is very different from World A. World B is dominated by phenomena like form contracts, contracts of adhesion, shrinkwrap, clickwrap, rolling contracts, and, of course, boilerplate. In this world, private negotiations tend to produce not only the central terms of agreements, which are explicitly negotiated and freely chosen by the relevant parties, but also lengthy fine print that is rarely if ever read by consumers. Even if consumers were to read the fine print, they would rarely understand it, and none would be able to negotiate for modifications with any particular company. Boilerplate also tends to be repeated through entire industries in World B. Hence, consumers lack meaningful alternatives for similar products with different fine print from other companies.

Let me add one further stipulation, and suggest that—like us—the people in World B depend heavily and ineliminably on markets for their basic functioning and livelihood. If so, then the purported option to “opt out” of market activity altogether is not a very real one. To suggest otherwise would invite the same type of criticism that Hume famously leveled against Locke’s arguments from tacit consent. In his discussions of this concept, Locke essentially sought to interpret the ordinary 17th century villager’s decision to remain in his or her state of birth as a free act, which expressed tacit consent to its standing political regime. In doing so, Locke thereby made much too much out of something over which most ordinary people had no real choice. Here are some basic facts that made this purported choice unreal in the 17th century: linguistic barriers, transportation costs, the need for land and work at the destination, and the typical dependence of 17th century villagers on local social networks for their basic livelihood and survival. The people in World B are not 17th century villagers, but they have become highly dependent on markets for their basic functioning and livelihood. Hence, these people have no real choice but to engage the marketplace.

Whether the real world is more like World A or B is, of course, an empirical question. With respect to the vast majority of modern contracts between corporations and consumers, the empirical facts are, however, fairly clear. As Radin persuasively argues, modern consumers are deeply entrenched in a World of Boilerplate. Hence, a great number of terms that result from private negotiations in the real world are not, in fact, the product of free choice in anything like the same robust sense of World A. This fact provides the central backdrop for Radin’s larger line of argument.

The next step for Radin is to establish that this fact poses a general threat to modern contract theory.  Radin does this by walking through all of the major normative theories of contract, and pointing out that each hinges its central justification for contract enforcement on the purportedly free and voluntary nature of the underlying transactions.  For autonomy theorists (like Kant), contract enforcement is justified by respect for autonomous choice; for promise-based theorists (like Charles Fried), it is conditioned on the existence of a voluntary promise; for reliance-based theorists (like Patrick Atiyah), only voluntary promises that are relied upon should give rise to contractual liability; for neo-Aristotelian theorists (like James Gordley), the capacity for free choice is viewed as having a particular natural function (viz., it aims at human flourishing), but some exercise of this capacity is still needed to form a contract; and for people who would root contractual enforcement in the logic of property transfer (like Peter Benson), a transfer must still be voluntary to be legally recognized. As Radin observes, voluntary choice even plays a key role in the central economic justification for contract enforcement because economists view voluntary choice to reveal preference. Voluntary agreements therefore produce information about the routes to mutual preference satisfaction, and their enforcement should tend to promote efficiency. To this, an important Hayekian insight is often added: this information about the routes to human preference satisfaction, which is produced so easily and naturally by free negotiation, is often very difficult (or even impossible) to produce through centralized state planning.

What this means, however, is that all of the prevailing normative contract theories offer central patterns of justification that apply best to World A, but not—or at least not directly—to an increasing number of terms that are produced by unregulated markets in the real world. There is—in other words—a quite generalized lack of fit between the justificatory centerpieces of these theories and the world. When this lack of fit goes unnoticed, these theories often profit illicitly from a perceived normative halo, which arises from the continued presumption of a connection between private contract and liberty.

Because of these facts, Radin suggests that enforcing boilerplate in the real world should be presumed to involve some “normative degradation”. Notice that this diagnosis does not depend on any particular normative theory of contract, and instead follows from premises that are shared by all dominant theories. Hence, the presumption should be in one sense quite robust. At the same time, however, not every theory takes liberty (or freedom of choice) to be equally foundational, and so the presumption will also be defeasible on some grounds and theories. Consider, for example, the quite plausible view that democratically passed legislation has the authority to trump personal liberty in some circumstances. If so, then legislation might in principle cure some of this normative degradation. The problem for boilerplate produced by unregulated markets is, however, that it tends to reflect neither the joint product of private parties’ robust free choice nor the democratic will. Radin therefore argues that its enforcement can involve not only “normative” but “democratic” degradation.

Contract theorists who seek to justify the enforcement of boilerplate have two main options at this stage. Either they must try to shoehorn boilerplate into the category of the freely chosen, or they must develop justifications for its enforcement that are not conditioned on assumptions of free choice.

The first tack is by far the most common, and Radin discusses a number of different variations of the theme. All start with the same basic observation: even if real world boilerplate is not freely chosen, it often has other properties that may seem related. Ordinary consumers might, for example, still be “on notice” of the risks of boilerplate; or their voluntary choice to enter agreements with known terms might be construed as expressing their “blanket assent” to a range of unknown terms (or perhaps only to those unknown terms that are not “unreasonable”); or it may be that the average consumer “would have chosen” some boilerplate terms even though they did not in fact choose them; and so on. Contract theorists who try to extend their basic theories to boilerplate often point to facts like these, but typically with an air of afterthought. They act as if the arguments reflect only minor appendages to their main theory, which is still of the “central case” of purely voluntary exchange.

Radin’s response to all of these moves is simple enough. She points out that none of these properties is literally equivalent to being freely chosen. Hence, none of these moves can justify the enforcement of boilerplate without a fairly major revision of the central pattern of justification offered for enforcement in the standard case.

Theorists who try to take this first tack are thus surreptitiously taking the second: they are making implicit appeal to a pattern of justification that is no longer premised on assumptions of voluntariness or free choice. With one major exception described below, Radin argues that none have, however, offered the kind of explicit alternative theory needed to do the relevant work. Perhaps this is because boilerplate is still viewed as peripheral, but Radin argues that—given the realities of the modern marketplace—contract theorists can no longer treat the enforceability of boilerplate as an afterthought. The second tack must be explicitly broached if the challenge of boilerplate is to be truly met.

The one major exception to this insufficient attention arises in the law and economics literature, where this second tack is often consciously broached. Here one finds not only genuine focus on the problem of boilerplate but also quite a few attempts to justify its enforceability based solely on considerations of efficiency and without any accompanying assumptions of free choice. One particularly common suggestion is that boilerplate makes contracting less costly, and thereby creates benefits for both corporations and consumers. This suggestion depends on the empirical assumption that saved costs are systematically passed on to consumers in the form of lower prices.

Another (really just slightly more formal) version of this suggestion is often framed in terms of the Coase theory, transaction cost theory and the well-known distinction between property and liability rules. Property rules protect entitlements that can only be divested from parties with their explicit consent, whereas liability rules protect entitlements that can be divested absent consent so long as adequate compensation is paid. Because of these facts, property rules—but not liability rules—tend to force private negotiation before entitlements are transferred. From here, one need only invoke the Coase theorem to generate the standard economic recommendation that private entitlements be protected by property rules by default. Under the Coase theorem, free markets should automatically tend to produce an efficient allocation of resources so long as transaction costs are zero, and efficiency considerations should therefore favor the use of property rules by default to force private market negotiation. The natural corollary to this is, however, that in circumstances where transaction costs are sufficiently high, efficiency considerations will sometimes favor the use of liability rules instead. One of Radin’s key observations in Boilerplate is that courts effectively treat entitlements as protected by mere liability rules when they enforce boilerplate, because boilerplate tends to divest parties of entitlements without their true consent. This treatment might be economically justified—but only on the empirical assumption that it saves sufficient transaction costs, which are systematically passed on to consumers.

Radin’s detailed arguments against these and number of related economic arguments really need to be read to be fully appreciated. One important response nevertheless hinges on the distinction between economic arguments for the use of liability rules in exceptional cases of market failure and their more pervasive use when boilerplate is generally enforced. Where, as in the latter case, liability rules have become more the rule than the exception, their use significantly undermines the more central economic justification for contract enforcement—which still depends on voluntary choice to reveal preference. The commonly presumed connection between contract enforcement and liberty has also been largely severed. Hence, one can no longer place heavy emphasis on the Coase theorem, or on any Hayekian insights about the indispensability of voluntary agreements to produce information about the routes to private welfare. Divested of this standard garb, the economic argument for enforcing boilerplate would thus seem to reduce to a fairly straightforward empirical claim: the use and enforcement of boilerplate—which is typically generated by self-interested corporations and is neither freely chosen by consumers nor expressive of the democratic will—nevertheless tends to promote the welfare of all parties involved as a general matter.

Let us take a closer look at this empirical claim. Economists who make empirical claims generally fall into one of two basic camps. Either they try to predict the consequences of legal rules based on economic modeling, or they turn to econometric methods to investigate empirical phenomena more directly. As Radin notes, however, very little direct empirical support has ever been produced for the claim that enforcing boilerplate promotes the welfare of all parties involved as a general matter. More often than not, the claim is simply assumed to be economically plausible because private markets are thought efficient by default; or it is suggested (based on economic modeling) that a well-informed subset of consumers will naturally push prices toward efficiency. The problem with the former assumption is that it draws most of its perceived plausibility from the standard economic model of contracting (in which free choice and perfect market competition render all privately negotiated terms subject to the laws of supply and demand), which has been shown inapplicable to the case of boilerplate. Radin argues that the latter suggestion is also problematic because it depends on unrealistic views about consumer rationality and the limitations of corporations to engage in price discrimination and market segmentation. Radin’s point here is not that the empirical facts speak clearly and uniformly against the enforcement of boilerplate in all cases; but rather that the empirical facts need to be investigated much more responsibly because a blanket empirical assumption of efficiency almost certainly gets things wrong in many cases.

If there is one weakness in this last argument, it is that Radin never goes on to try to answer these important empirical questions more definitively. To see this as a weakness is, however, to misconstrue the deeper import of the argument. Radin’s argument functions more like an opening salvo, or call to empirical investigation, which proceeds by casting doubt on the generality of a critical empirical assumption that has played a powerful but outsized role in the academic literature. To exhibit the openness and complexity of a critical question, which many have presumed answered, is purpose enough for her argument.

So where does this all leave us? Radin herself goes on to discuss a number of potential solutions to these problems in, but here I have been focusing on the implications of her book for normative contract theory. Let me thus end by suggesting a general moral for the field.

When theorizing about contract law, one of the most common approaches has been to start with the simple types of voluntary exchanges that pervade the hypothetical World of Agreement, and then try to build a theory around them that accounts for the basic contours of contract law doctrine. This task has proven difficult enough in practice that many despair of its ever being met. (But see my work on contractualism about contract law, which purports to meet this challenge.) Still, the basic hope is that once a satisfying theory has been produced for these easy cases, it can later be extended with minor modifications to the more complex cases of the real world. To begin in this way is, however, to credit a particular picture of how modern markets operate at their core—viz., as paradigmatic realms of personal liberty and free choice. This picture is elegant and intuitive, and is meant to produce understanding. But it is ultimately a snapshot of World A, and the real world has changed. The picture thus ends up producing as much distortion as illumination.

One of the things I like so much about Boilerplate is that it clarifies just how deep and pervasive this problem is for modern contract theory as a whole. By casting doubt on one of the most common starting points in modern contract theory, Radin in effect forces us to reflect on the basic object of the inquiry. She thereby challenges us to produce either better theories or a better world, and to do so based on the facts rather than fanciful pictures of the market.

 
 

Mistake of Fact, Moral Justification, and Justificatory Defenses in Law

Re’em Segev, Justification Under Uncertainty, 31 Law and Philosophy 523 (September 2012), available at SSRN.

In this article, Segev defends a sophisticated analysis of the pro-tanto justification of actions taken under uncertainty (more precisely, with “partial information”) in both morality and law. Applied to law, Segev’s analysis challenges some mainstream views.

Here’s the puzzle and Segev’s starting point: Thanks to mistake of fact, an action may appear “subjectively justified” but not “objectively justified,” and vice versa. A moral agent has a false but epistemically justified belief about a relevant non-normative fact; and if that belief had been correct, the action would have been (objectively) justified under a correct norm. Some would say that the act is subjectively justified, nonetheless. An action is objectively justified—the agent correctly acted according to a correct norm—but the action is not subjectively justified, given the agent’s epistemically justified (but false) belief about a relevant non-normative fact. In either case, was the agent’s act really justified? The answer provided by an objective conception of justification under uncertainty appears to conflict with that produced by a subjective conception. Segev denies the conflict. He holds that the question is ambiguous; its answer depends on which “aspect” of the relevant normative standard the question concerns.

Segev examines morality first, and then uses his results as a template for law. He contends that the arguments for an objective conception of moral justification under uncertainty and for a subjective conception are initially equally compelling. On the one hand, surely individuals may be mistaken about what they ought to do. Moreover, using a moral agent’s beliefs to answer the justification question is circular, for the object of his or her belief would then be a belief. Thus, the question about what the agent should do (or what is right) seeks something independent of the agent’s belief, and we arrive at the objective conception of justification. The actual facts count, not the moral agent’s justified belief (presumably, even if correct). So, for example, a nurse ought to encourage a patient to take the contents of a cup if the cup actually contains the patient’s medicine, but not if the cup actually contains poison.

On the other hand, “What should I do when I am uncertain about the cup’s contents?” is a moral question. Segev notes that it isn’t a question about the nurse’s responsibility. There is no guidance for the nurse in the objective conception’s conditional answer, given above. But morality supplies guidance. Guidance is provided if what a moral agent should do depends in some way on his or her (epistemically) justified beliefs. So it seems that moral justification (and thus, the right action) in situations of partial information depends on the agent’s beliefs—which is the subjective conception. Justification may at times depend straightforwardly upon those beliefs; Segev claims that “I did what I justifiably thought was acting in accordance with this (correct) moral standard,” states a justification. But not always, he rightly adds; and not, one would think, in his under-described nurse example. Sometimes, given the probabilities, the agent with partial information should inquire further into the facts. Sometimes the agent ought to act contrary to what seems to her to be best, on a probabilistic maximin principle. (Note that probabilities are also tied to the agent’s epistemic states.)

Segev convincingly contends that the best explanation of the power of these opposing arguments, and the one that casts them in the best moral light, is that they address different but related aspects of moral obligation (or of moral standards), an ideal aspect and a pragmatic aspect. The ideal aspect provides “the moral truth,” the governing moral norm. Unsurprisingly, Segev holds that the objective conception of justification is appropriate to the ideal aspect (of morality). What constitutes doing one’s moral duty in a given situation is action in the light of the actual facts in accordance with the correct norm.

The pragmatic aspect determines the correct action under uncertainty. It provides an evaluation of the actions of one who acted under uncertainty (that is, acted with partial information), and also provides guidance to one who must act under uncertainty (but who does not question the relevant norm). This aspect is invoked when the nurse (who knows the correct norm) asks for guidance about what he should do, given his uncertainty about the contents of the cup. Segev argues that only the subjective conception of justification is proper to the pragmatic aspect, and that this conception is best understood as playing this role.

Segev then goes on to argue on essentially the same grounds and against some leading legal scholars that the appropriate conception of justification for the ideal aspect of law (that is, what is legal according to the valid legal standards) is the objective one, and the appropriate conception for the pragmatic aspect (that is, what is legally permitted or required of an agent acting under uncertainty about a relevant non-legal fact) is the subjective one. His argument for the latter claim relies, unfortunately, unconvincingly on the contention that the law should “advance” morality. His conclusion might be better defended on fair notice or efficacy grounds. His account has interesting applications, as he points out, to justificatory defenses, such as self-defense in the criminal law. The pragmatic moral justification of an action under uncertainty, he argues persuasively, should count against criminal liability. Less persuasively, he contends that combining objective and subjective elements in legal justifications of the use of defensive force is a mistake. This argument is incomplete. Segev is correct that fair notice is thereby sacrificed, but stronger (policy) considerations may support some combination of objective and subjective elements for judging uses of force under uncertainty.

What I like best is Segev’s idea that there is a separate and complete subjective kind of moral justification, no matter what the correct theory of right is. This idea is defended well and at considerable depth. But all of Segev’s theses and the arguments for them are worth grappling with.

 
 

The Nature of Law: Essential vs. Important

Frederick Schauer, On the Nature of the Nature of LawArchiv für Rechts- und Sozialphilosophie (ARSP), Vol. 98, pp. 457-467 (2012), available at SSRN.

At the heart of analytical legal philosophy are theories about the nature of law. In recent decades, there has been a growing convergence around the conclusion that theories about the nature of law (like those of H.L.A. Hart and Joseph Raz) are conceptual analyses, determining the “essential” or “necessary” characteristics of the concept of law. (The debates about the proper way to understand theories about the nature of law are summarized in Brian Bix, Joseph Raz and Conceptual AnalysisAPA Newsletter on Philosophy of Law, Vol. 6(2), Spring 2007, available at SSRN.) Against this background, Frederick Schauer, in a number of important recent articles, including On the Nature of the Nature of Law, has argued that legal theorists should focus more on “the typical truths” of law, even if this is different from the list of its “essential characteristics.”

To explain: the “essential” or “necessary” characteristics of law are those characteristics that make it “law,” the characteristics without which it would not be “law.” These characteristics will be present (by definition) in all legal systems, present, past, future, or hypothetical. Claims of which characteristics are “essential” or “necessary” are claims about our concepts, not (or at least not primarily) falsifiable claims about the world independent of those concepts. (The role of “necessity” in philosophy generally and in legal philosophy in particular is a large topic that would take us too far afield. I discuss the topic in Raz on Necessity, 22 Law and Philosophy 537 (2003), also available at SSRN.)

A helpful example Schauer uses in this article (and elsewhere) is that while flying is often associated with birds, there are entities that are birds but cannot fly. “Birds [can] fly” is a general truth that is, at the same time, not universally true of the category “bird.” Regarding law or legal systems, one could say that all or almost all legal systems (past or current) have courts, employ specialized practitioners (lawyers), and use coercion. Yet, these may not be necessary truths about law, in the sense that one could perhaps imagine institutional systems that did not have these characteristics but were nonetheless appropriately labeled as “legal systems.” (There has been an active debate among theorists over whether coercion is a necessary characteristic of law, but most modern theorists seem to have concluded that it is not.)

Schauer argues that there are properties that may be essential to law but may not be important to understanding the nature of law—the phrase being “understanding the nature of law” here being used in a general sense of understanding something’s nature, rather than in a technical philosophical sense; under a technical philosophical sense, understanding the nature of something might simply equate to understanding its necessary characteristics. Similarly, there may be characteristics (like courts and coercion) important to understanding the nature of law that are not essential to the concept of “law,” but just general truths about legal systems. “Even if we wish to understand not just the law of this or that legal system, but law generally, features that exist in all or almost all actual legal systems can tell us much about law’s goals, methods, and limitations.” (P. 461.) Schauer’s approach would allow us to side-step the controversies of “essentialism” while still grounding claims about how best to understand the differences between (for example) law and morality (e.g., one tends to involve coercion and the use of courts to resolve disputes while the other does not).

Towards the end of the article, Schauer suggests that law might be best understood as a “family resemblance” concept or a “cluster concept,” an idea that has been raised before (e.g., by Rolf Sartorius, cited by Schauer at P. 465, n. 39). Under this proposed approach, “both the word ‘law’ and our concept of law consist of a series of intertwined properties, no one of which is necessary for the correct understanding and application of the concept or the word, and no one set of which is sufficient for their correct application and understanding.” (P. 465, footnotes omitted.) Schauer thus at least suggests doubts about the value of conceptual analysis for discussing the nature of law. At the least, Schauer reasonably concludes, if there are characteristics that unite all the quite disparate experiences that we identify as “law,” they will be “at such a level of abstraction as to be of little value in understanding the nature of law.” (P. 466.)

 
 

The Real Legal Realism

Karl N. Llewellyn, The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press, 2011).

Llewellyn began this book in 1938 in response to mischaracterizations of his views about legal rules. After working on it for two years, he set it aside unfinished. Mouldering for decades among the rest of Llewellyn’s papers at the University of Chicago, it has finally been published, with a masterful introduction and set of notes by Fred Schauer.  Although the book offers many valuable insights about what this prominent legal realist thought about legal rules, my emphasis here will be on how it might help put to rest two persistent misreadings of the realists.

The first is that the realists believed in global legal indeterminacy—that they thought legal rules can never (or only rarely) give judges sufficient guidance to come to a particular decision. This misreading is evident in H.L.A. Hart’s critique of “rule skepticism” in Chapter VII of The Concept of Law. The Theory of Rules is a useful corrective, for Llewellyn repeatedly insists that legal rules can, and often do, meaningfully instruct judges about how cases should be decided (e.g., Pp. 40-41, 46-47). What is more, he identifies the likely source of the mistaken view that the law is globally indeterminate—the tendency of legal scholars to concentrate on cases that make it to appellate review. (P. 47.) Here Llewellyn’s book supports Brian Leiter’s reading of the realists, for Leiter has argued tirelessly that the realists were not global legal indeterminists (e.g., Pp. 19-20 of Naturalizing Jurisprudence).

That this misreading got started at all might seem puzzling, given that a number of realists explicitly rejected global legal indeterminacy in their published writings in the 1930s (e.g., P. 238 of Felix Cohen’s Ethical Systems and Legal Ideals). But at least one realist, Jerome Frank, certainly sounded like he believed that legal indeterminacy was global. For example, in Law and the Modern Mind he described judicial discretion as “unavoidable” (P. 399) and occurring “in almost all cases.” (P. 398.) The truth is that even Frank probably was not talking about global legal indeterminacy. Read charitably, he had other things in mind. One was judicial supremacy—the fact that a judge’s judgment is binding on officials even if the judge misapplied a determinate legal rule. (More on that later.) Another was a judge’s or jury’s power to make any case conform to a legal rule by coming to an accommodating conclusion about the facts. The third and most interesting was philosophical anarchism: a legal rule, no matter how determinate, does not on its own give a judge a moral reason to adjudicate in conformity with the rule. I believe that philosophical anarchism stands at the heart of the much-misunderstood Freudian theme in Law and the Modern Mind. According to Frank, judges who assume that a legal rule somehow compels them to issue a particular decision are seeking in the law a father figure who will release them from the adult responsibilities of moral agency.

The second persistent misreading is that the realists held what can be called a decision theory of law, according to which the law consists only of the concrete decisions of courts. Here again an example of the misreading is Chapter VII of Hart’s The Concept of Law. As Hart sees it, the realists wrongly adopted a decision theory because of judicial supremacy. From the fact that an erroneous judgment must be enforced by officials unless overturned on appeal, the realists concluded that a judge cannot make a legal error. Hart argued that this is a mistake. After all, the fact that an umpire’s call is binding even if it is in error does not mean that the rules of baseball are whatever the umpire says they are. (Hart’s example was cricket, not baseball.)

I think it’s clear that some realists sometimes advocated a decision theory of law. The theory is particularly prominent in Law and the Modern Mind. It’s worth mentioning, however, that Hart’s umpire argument is not quite as strong as it first appears, for it ignores the true extent of judicial supremacy (in the United States at least). It is not just true that a concrete judgment (for example, that Jones is liable to Smith for $100,000) must be enforced by officials even if the judge who issued the judgment misapplied the law. In addition, the judge’s interpretation of the law is often binding upon other officials beyond the case in which the interpretation was made. Umpires do not issue binding interpretations of the rules of baseball.

The merits of the decision theory aside, The Theory of Rules provides important evidence that the theory was not an essential element of legal realism, for in Llewellyn’s book the theory cannot be found. What one does find is a prediction theory of law (see especially Chapter II). Under the decision theory, the law concerning a certain set of facts is whatever concrete judgment will be issued by the court that adjudicates those facts. Under the prediction theory, by contrast, the law consists of patterns of judicial (and other official) behavior. When one makes a claim about the law one is saying that the requisite patterns are in place. And that amounts to a prediction of official behavior. Two other realists who offered the prediction theory are Felix Cohen and Walter Wheeler Cook.

Distinguishing between the decision and prediction theories is essential to understanding the realists, for passages that sound like the decision theory can usually be more charitably read as expressing the prediction theory. Consider, for example, Llewellyn’s endorsement of John Chipman Gray’s claim that courts, not legislatures, make law. (P. 45.) Although this might appear to be an example of the decision theory (and I think is an example in Gray’s case), all Llewellyn means is that a statute becomes law and has the legal content that it does only through patterns of official behavior: “In the process of becoming a rule, prevailing and authoritative, any would-be rule is read into, and read through the prisms of, the institutional structure of the going lawways and of the existing lawmen….” (P. 44.) This is the prediction theory, not the decision theory.

Indeed, as Schauer notes (P. 59 n.12), the prediction theory, properly understood, looks similar to Hart’s own theory of law. For Hart, when a judge says that the U.S. Constitution is law, she presupposes the existence of a practice among officials, which Hart calls a “rule of recognition.” This presupposition amounts to a prediction of what officials will say and do.

To be sure, there are some differences between the prediction theory of law and Hart’s. One is that Hart thinks a rule of recognition requires more than regularity of official behavior. Certain attitudes—which Hart calls the “internal point of view”—are necessary too. Another is that, for Llewellyn, an item is a “rule of law” if it is a regular determinant of judicial (and other official) decision-making, even if it fails to satisfy the explicit criteria of legality employed by officials. (See Schauer’s introduction at P. 21.) Hart, by contrast, privileges the “paper rules” (in The Theory of Rules Llewellyn calls them rules in their “propositional form”) that are identified by these explicit criteria.

Another possible difference concerns the role that predictions or other factual statements concerning officials can (or should) play in legal justification. For example, in Transcendental Nonsense and the Functional Approach, the image of proper adjudication Felix Cohen offers is one in which a judge first identifies the law in terms of predicted patterns of official conduct and then decides, on the basis of moral considerations, what she ought to do in response. (Pp. 838-42.) Cohen thinks a purely predictive approach to the law can be adopted without explanatory or justificatory loss. For Hart, by contrast, social facts are presupposed rather than described when an official makes a so-called “internal” statement of law. Indeed, in The Concept of Law Hart claims that someone who speaks of a rule of recognition as a set of social facts has ceased to talk about legal validity at all. (Pp. 102-09.)

Interestingly, here Llewellyn appears closer to Hart than to Cohen, for he suggests that a purely predictive approach cannot be consistently maintained by someone engaging in legal justification. (P. 56.) and he offers some tantalizing suggestions why this is so.  In the end, legal justification must refer to propositional rules of law, not predictions of official behavior. (P. 59.) Perhaps the most exciting aspect of The Theory of Rules is that it shows that the realists, despite advocating a prediction theory of law, disagreed among themselves about the role that predictions can or should play in legal justification.