Moral Argument in Legal Disputes: Why So Many Are Mistaken

David Plunkett and Tim Sundell, Antipositivist Arguments from Legal Thought and Talk: the Metalinguistic Response, in Pragmatism, Law, and Language, 56 (edited by Graham Hubbs and Douglas Lind, 2014).

In “hard” appellate cases, legal disputants sometimes offer moral considerations. Legal experts seem to back up claims about what the law is on a particular point with moral argumentation (whether or not explicitly posited legal material, such as a statute or a written constitutional provision, mentions moral considerations, one might add). One antipositivist argument credits the disputants with choosing epistemic arguments that reflect metaphysical truths, and concludes that the law depends at least in part on moral facts.

A familiar legal positivist response is that appearances are deceiving. The disputants are supporting a claim about what the law should be by moral argumentation, because the law at this point is indeterminate. Yet that’s not what many disputants would say, as their use the language of discovery suggests. To borrow an idea from Leiter, the positivist either concludes that the disputants are disingenuous (perhaps because the conventions of legal argumentation require them to appear to argue only about antecedent law) or that legal practitioners, legal scholars, and legal officials misunderstand what they are doing when they rely on moral argumentation. But how can so many experts be so mistaken? That’s what Plunkett and Sundell explain, and they do so plausibly, without denigrating the knowledge, honesty, or intelligence of the expert practitioners.

The authors do not challenge the appropriateness of moral language in a legal dispute. They challenge the assumption that the moral language is used to make a claim about a moral fact, and the assumption that the dispute is about what the law (antecedently) is. Both assumptions are incorrect, say Plunkett and Sundell; and thus, one cannot conclude that moral facts establish the law from the mere fact that moral language is used in legal disputes in hard cases.

Instead, moral language is used to make a proposal about what a moral term should mean in the context, where its meaning in this context and for these (legal) purposes is underdetermined. That is, a moral word or phrase is used metalinguistically. The proposal is communicated, not by the literal content of the language used, but by the pragmatic content. (For more on what the authors call “metalinguistic negotiations,” see the December 10, 2014 Jot by Connie Rosati.) The authors offer no examples of legal cases fitting this description, though they give examples of legal issues turning on determining what a (nonmoral) term means. Perhaps “fundamental fairness” (involved in Gideon v. Wainwright) would do.

Why do the disputants think otherwise? First, disputants in a metalinguistic negotiation generally do not recognize when they are communicating pragmatically, since they don’t usually have intuitions subtle enough to distinguish between literal and pragmatic ways of communicating. When the legal question seems to hinge on the way an expression (“use as a weapon,” “fundamental fairness”) is applied to the facts of a case, the disputants will think they are arguing over some first-level matter—e.g., whether the defendant’s action with the weapon was a use, whether fundamental fairness is violated by the absence of counsel for a defendant in a criminal action.

Disputants are instead arguing in the second case about whether the absence of counsel should be held to violate fundamental fairness (and so, due process, and so, the U.S. Constitution). Ordinarily, the reasons pertinent to that dispute are pertinent to the issue of what the expression “fundamental fairness” should mean in this context. This is the second reason. At this point, the difference between the projects becomes uninteresting to the participants. They are correctly aware that they are arguing about a constitutional right to counsel, but the difference between applying a determinate “fundamental fairness” and precisifying an indeterminate “fundamental fairness” doesn’t matter to them.

If a legal question turns on the application of some expression and that expression is indeterminate at a point, the legal positivist can claim the law is indeterminate. So the disputants’ debate isn’t, then, about what the law antecedently is, but what the law should be (on that point).

This account nicely explains why sometimes when the disputants are using moral language in a hard case, they erroneously think they are arguing about moral facts and what the law is. Unfortunately, the authors fail to address all the kinds of cases the antipositivist offers. The account nicely fits cases that the disputants agree turn on the application of a term (from statute, constitutional provision or something canonical in the common law) that is a moral term or whose application ordinarily requires moral reasoning (“unreasonable risk of harm”). But what shall the positivist say when this isn’t true and there is moral argumentation in a judge’s opinion—e.g., in Riggs v. Palmer? When only one of the disputants turns to moral language, the dispute doesn’t seem to be about determining an indeterminate moral expression. Perhaps the authors would call this, as they did in their article mentioned above, a “bedrock legal dispute,” and contend that the metalinguistic dispute is over the phrase “the law.” I’m not persuaded by that move, since there aren’t always explicit claims about “the law” in these conflicting judicial opinions.

To be fair, Plunkett and Sundell disavow the claim that all disputes in hard cases involve metalinguistic negotiations. Nonetheless, one can take from the authors’ general approach the idea of negotiation pragmatically expressed and say that in hard cases in which only some disputants use moral language there are (frequently?) negotiations pragmatically expressed about the identity, extent, and importance of concepts to fit settled law, where the answer has been hitherto indeterminate. This claim could be generalized to other hard cases not invoking moral language. The merits of an expanded approach are well worth investigating by those working on the nature of law and legal disagreement.

Cite as: Barbara Levenbook, Moral Argument in Legal Disputes: Why So Many Are Mistaken, JOTWELL (July 21, 2015) (reviewing David Plunkett and Tim Sundell, Antipositivist Arguments from Legal Thought and Talk: the Metalinguistic Response, in Pragmatism, Law, and Language, 56 (edited by Graham Hubbs and Douglas Lind, 2014)), http://juris.jotwell.com/moral-argument-in-legal-disputes-why-so-many-are-mistaken/.
 
 

Roll Over, De Tocqueville

Martin Gilens and Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Perspectives on Politics 564 (2014).

“Money is the mother’s milk of politics,” said California pol Jesse Unruh, way back in the 1960s. Benjamin Franklin, in the 1790s, could not have said it more memorably; but wouldn’t it shock us if it had been Franklin, and not Unruh (or Karl Marx) who first said it? The certainty of death and taxes is a hard lesson, but it doesn’t prepare us for the bitter thought that politics is helpless before the power of money.

Students of American democracy have divided on the point. Martin Gilens and Benjamin I. Page assign the principal theories of American politics to four schools: Majoritarian Electoral Democracy, Economic-elite Domination, Majoritarian Pluralism, and Biased Pluralism. Majoritarian Electoral Democracy holds that policy outcomes are determined largely by the views of average citizens. Economic-elite Domination holds that policy outcomes are largely determined by the views of the wealthiest citizens. The two other types of theory focus not on individual voters, but on interest groups. Majoritarian pluralism is the view that policy outcomes are mainly responsive to pressures from mass-based interest groups. Biased pluralism maintains that pressure from business-orientated interest groups is what mainly determines state policy.

Each of these types makes a prediction, and thus is empirically testable, so Gilens and Page posed the natural question: how do they compare as predictive theories of policy outcomes? This is a question that is much easier to formulate than it is to answer. No attempt had ever been made to answer it within a unified statistical framework. So, Gilens and Page and their assistants assembled “a unique data set that includes measures of the key variables for 1,779 policy issues” (P. 564), and performed a series of multivariate analyses. “Who governs? Who really rules?”—the authors report finding that

economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass- based interest groups have little or no independent influence. The results provide substantial support for theories of Economic-Elite Domination and for theories of Biased Pluralism, but not for theories of Majoritarian Electoral Democracy or Majoritarian Pluralism. (P. 564.)

The authors are careful to point out that elite opinion and mass opinion often coincide, and that it could look as if the average citizen is getting her way anyway. But their analysis, they say, shows that to think so would be to mistake “democracy by coincidence” (P. 573) for the real deal. In fact, “the issues about which economic elites and ordinary citizens disagree reflect important matters, including many aspects of trade restrictions, tax policy, corporate regulation, abortion, and school prayer, so that the resulting political losses by ordinary citizens are not trivial.” (P. 573.) We might comfort ourselves by the thought that, as to abortion and school prayer, it might be better if the elites made the call. But that is small comfort if Gilens and Page have indeed discovered that

reality is best captured by mixed theories in which both individual economic elites and organized interest groups (including corporations, largely owned and controlled by wealthy elites) play a substantial part in affecting public policy, but the general public has little or no independent influence. (P. 572.)

Their findings are even more troubling insofar as they merely depict the “first face” of politics, that is, outcomes of overt policy contests. They can only hint at the configuration of the “second face” of political power, i.e., governmental agenda setting; and the “third face,” the shaping of public opinion and preference (P. 576.)

So what? Gilens and Page admit that “Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if still contested) franchise.” (P. 577.) These political and civil liberties are formally equal, at least in large part. But Gilens and Page confirm that what philosopher John Rawls called the “fair value of the political liberties”—a roughly equal chance had by rich and poor alike to affect political outcomes—is demonstrably absent in the United States. As Anatole France wrote, both the rich and the poor are equally forbidden (or permitted, as the case may be) to sleep under bridges. But justice requires more than this. As to the specifically political liberties, merely formal equality is not enough—or so Rawls believed.

Insisting on the fair value of political liberty has consequences. The type of regime Rawls called “welfare state capitalism” guarantees formally equal political liberty but is insouciant about its fair value, and for this reason alone (though there are others) he concluded that a regime of this type cannot realize justice. Some political philosophers have recently contested Rawls’s assumption that the wealthy invariably tend to dominate politics. It cannot, they say, be assumed as a matter of common sense, or as a settled finding of social science, that the wealthy—severally or in combination—have this advantage. That they do is unlikely, given collective action problems; and whether they do or do not is anyway a complicated empirical question, which means that Rawls was wrong to condemn welfare-state capitalism as inherently unjust. If there is a problem, they argue, it is not one that the legislative branch of a welfare-state capitalist regime cannot sort out. Such a regime might, for example, enact laws to insulate politics from money, if the worry about money in politics (beyond quid-pro-quo bribery) is not merely valetudinarian. Valetudinarian or not, the US Supreme Court insists that ensuring the fair value of political liberty is not even a permissible Congressional goal, much less a “constitutional essential.”

Gilens and Page’s paper has been described as “the Piketty of politics”—referring to Thomas Piketty’s Capital in the Twenty-First Century. This is apt, in that it focusses the discussion of inequality on its specifically political effects. Whether Gilens and Page, or the Piketty boom, will have a specifically political effect in the United States is a separate question. But the influence that Gilens and Page can be expected to have is inversely related to the correctness of their findings; and Rawls himself, I am sorry to note, has yet to be cited in any opinion of the Court, dissent, or concurrence. As Rawls wrote:

Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained . . . for when parties and elections are financed . . . by private contributions, the political forum is so constrained by the wishes of the dominant interests that the basic measures needed to establish just constitutional rule are seldom properly presented. (A Theory of Justice 198-99)

“Are seldom”—after the line of cases from Buckley v Valeo to McCutcheon—has turned into “shall never.”

Cite as: W.A. Edmundson, Roll Over, De Tocqueville, JOTWELL (June 19, 2015) (reviewing Martin Gilens and Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Perspectives on Politics 564 (2014)), http://juris.jotwell.com/roll-over-de-tocqueville/.
 
 

Law, Neuroscience and Neuroethics

Jens Clausen and Neil Levy (eds.), Handbook of Neuroethics (2015).

The relationship between the mind and the brain is a topic of immense philosophical, scientific, and popular interest.1 The diverse but interacting powers, abilities, and capacities that we associate with the mind and mental life both link humans with other animals and constitute what make us uniquely human. These powers, abilities, and capacities include perception, sensation, knowledge, memory, belief, imagination, emotion, mood, appetite, intention, and action. The brain, in interaction with other aspects of the nervous system and the rest of the human body, makes these possible.

Obviously, the relationship between the mind and the brain is enormously complicated. It is one thing to say that the mind (or some particular aspect of mental life, for example, pain) “depends on” (contract supervenience—the idea of no change in mental state without underlying change in physical (i.e., brain) state) the brain and another to say that the mind (or a particular aspect of it) just is the brain, or can be “reduced” to the brain (in the sense that it can be explained or explained away). Whether it can or cannot will depend on a number of empirical and conceptual issues.

The empirical issues concern the evidential base and the adequacy of the scientific explanations for the phenomena that we associate with the mind and the sensory, affective, cognitive, and cogitative categories that comprise our mental lives. The empirical issues on the relationship of mind and brain have been aided by an explosion of work in cognitive neuroscience over the past couple of decades, itself aided by an explosion of technology providing detailed information about brain structure and process (most importantly, types of brain imaging).

A good example of the importance of the conceptual/empirical distinction is found in the context of fMRI lie detection. The problem is one of under- and over-inclusion. fMRI studies may be under-inclusive if they are measuring “intent to deceive” rather than lying because some lies do not involve any intent to deceive. More importantly, however, the studies may be over-inclusive in that they count as “lies” acts by subjects that are not in fact acts of lying. If so, then this undermines attempts to draw inferences from neural data about the test subjects to whether actual witnesses are engaged in acts of actual lying.

Here is the problem. Not every utterance that a speaker believes to be false is a lie. For example, when a speaker is telling a joke or reciting a line in a play a false assertion is not a lie. As Don Fallis notes in an insightful article, the difference that makes “I am the Prince of Denmark,” a lie when told at a dinner party but not a lie when told on stage at a play are the norms of conversation in effect.2 Fallis explores the conceptual contours of lying through numerous examples and presents the following schematic definition:

You lie to X if and only if:

  • You state that p to X.
  • You believe that you make this statement in a context where the following norm of conversation is in effect:
       Do not make statements that you believe to be false.
  • You believe that p is false.3

This definition “capture[s] the normative component of assertion that is necessary for lying.”4

The fMRI studies do not fit. The subjects in the studies are instructed to assert false statements on certain occasions, sometimes with an intent to deceive an audience; however, their false statements are not acts of lying. Even when subjects commit or plan mock “crimes,” they are not in a situation where the following norm is in effect: do not make statements that you believe to be false.  Indeed, they are instructed to do precisely that. Thus, the acts being measured, even when they involve deception, appear to be closer to actions of someone playing a game, joking, or role-playing. If this is so, then the relationship between the neural activity of these subjects and acts of lying is not clear. In the legal context, this norm—do not make statements that you believe to be false—is in place, as the perjury and false-statements crimes make clear. The practical significance to this conceptual issue is obvious: to draw conclusions about whether someone is actually lying based on the fact that his neural activity resembles subjects who are not lying (but mistakenly thought to be) could be a disaster. To draw conclusions about whether someone is actually lying in a legal context, the underlying studies must examine actual lying or at least provide compelling reasons why the results from non-lies should inform judgments about lying.

All of the issues mentioned above come together in the interface between neuroscience and law, which has become a burgeoning field. The level of interest in questions such as the use of fMRI technology in courts, the possibility of lie detection, the role of the brain in memory, cognitive enhancement, and free will are all issues that legal scholars have taken a deep and abiding interest in.  Owing to these interests, the collection under review will be of immense value to scholars working in this emerging and exciting subfield.

This three-volume set should be consulted by anyone working in law and neuroscience. An entire section of the book (in V. 3) is devoted to “Neurolaw.”  But many other parts of this treatise will be of interest to lawyers working in the field. Neuroenhancement—using drugs and technologies to enhance human cognitive skills—is a very hot topic at the moment. The same can be said of free will, ethics of brain imaging, and neuromarketing, just to name a few of the topics treated in this collection.  Articles are by many well-known authors in the field.  The editors and the publisher have put together an indispensable collection that will be of interest to all scholars working on the law and neuroscience interface.



  1. The full range of issues in the interface between law and neuroscience are covered in M. Pardo and D. Patterson, Minds, Brains and Law (2013). []
  2. Don Fallis, What is Lying?, 106 J. Phil. 29, 33-37 (2009). []
  3. Id. at 34.  Astute readers will notice that Fallis’s definition does not include that the statement actually be false. []
  4. Id. at 35. []
Cite as: Dennis Patterson, Law, Neuroscience and Neuroethics, JOTWELL (May 19, 2015) (reviewing Jens Clausen and Neil Levy (eds.), Handbook of Neuroethics (2015)), http://juris.jotwell.com/law-neuroscience-and-neuroethics/.
 
 

Bricolage Jurisprudence

Roger Cotterrell, Why Jurisprudence Is Not Legal Philosophy, 5 Jurisprudence 41 (2014), available at SSRN.

Most people who use the terms at all treat “jurisprudence” and “legal philosophy” as interchangeable terms. In “Why Jurisprudence is Not Legal Philosophy,” Roger Cotterrell argues for a distinct meaning for the two terms, and for a greater emphasis on jurisprudence, in comparison to what he perceives as undue current attention to and an unduly high valuation of legal philosophy.

For Cotterrell, legal philosophy is the application to law, usually at a high level of abstraction, of ideas from philosophy, sociology, economics, or other disciplines in the humanities or social sciences. His particular concern is that much of what goes on under “legal philosophy” today—in particular, under what he calls “contemporary legal positivism”—inclines towards questions about what is true “essentially” or “necessarily” of all legal systems (or legal systems “in all possible worlds,” he might have added). These kinds of inquiries might be the sort of thing that is of interest to professional philosophers, Cotterrell maintains, but they are of little interest—and little use—to practicing lawyers.

In contract to “legal philosophy,” Cotterrell describes jurisprudence as “an important body of thought about law that aims at exploring, aiding and developing the prudentia of jurists.” (P. 42.) What is “prudentia”? Cotterrell points to a cluster of meanings around “acquaintance, knowledge, sagacity, prudence, discretion, and foresight.” (P. 42) Jurisprudence, thus understood, is meant to be of practical use to the practice of law, rather than a timeless search for law’s “essence” or “nature.” And where is one to gain the relevant insights? Cotterrell reports favorably on the idea of “bricolage jurisprudence” (PP. 43, 53), “collect[ing] magpie-like, insights from anywhere they can be found.” (P. 53.) While Cotterrell does not note this, such broad borrowing from a variety of approaches and disciplines has been true now for some decades in how law is taught and legal textbooks written, at least in the United States.

Cotterrell argues for a kind of theorizing that is “bottom up” rather than “top down,” focused on the particular practices and institutions of a single legal system, rather than trying to determine what is true universally. For example, Cotterrell would prefer that we not focus on the general question of whether there is a moral obligation to obey the law, but rather on more specific questions regarding what we would need to do in this society and to this legal system to attract a sense of obligation. There are questions specific to our legal system, our legal profession, our practices, today, here that are best confronted at this local level, to consider what we can do to make matters better. The focus on the particular echoes movements in other disciplines: e.g. experimental and behavioral approaches in economics, moral particularism in moral philosophy, and contextualism in philosophy of language.

Cotterrell singles out Karl Llewellyn and Lon Fuller as theorists whose work was grounded in the legal practices of their community, focused in particular “on law as a practice and, indeed, a craft.” (P. 54.) Cotterrell would likely note the irony that these are theorists whose reputation among “legal philosophers” is shaky—as many traditional legal philosophers would be too quick to mark off points for lack of rigor in their theories, while giving no extra credit for those theorists’ practical prescriptions for practitioners and law-makers.

While Cotterrell is (in my view—though admittedly I am biased here) too dismissive and contemptuous of much of the theorizing that is goes on under (what he labels) “legal philosophy,” he gives a strong argument for giving more attention to the more local and practical concerns of what he calls “jurisprudence.” And as indicated above, there may yet be some common ground between Cotterrell’s localized “jurisprudence” and comparably contextualized approaches in some other disciplines (from which “legal philosophy” often borrows).

Cite as: Brian Bix, Bricolage Jurisprudence, JOTWELL (April 24, 2015) (reviewing Roger Cotterrell, Why Jurisprudence Is Not Legal Philosophy, 5 Jurisprudence 41 (2014), available at SSRN), http://juris.jotwell.com/bricolage-jurisprudence/.
 
 

Theorising Global Justice

Frank J. Garcia, Global Justice and International Economic Law: Three Takes, Cambridge University Press (2013).

In a letter to the semi-pagan Nectarius (Epistle 91, §4), Saint Augustine sets forth one of the most fundamental problems of political life: political philosophers who have sought and ‘indeed described’ justice in private discussion have utterly failed to secure justice for the earthly city. The problem could not be clearer: true justice is not an utter mystery to human beings. It can be made present to thought and speech. But even amongst those who have bothered to obtain a rational image of it, this justice is absent from their activities and their communities. Justice in the earthly community is only ever a relative and internal justice, an ‘ordered agreement of mind with mind’ (De Citivate Dei XIX.13) that is limited to ‘the establishment of a kind of compromise between human wills…’ (IV.4) Even the laws of the most civilised society of Augustine’s time (Rome) represented but the distorted form of justice one finds in a criminal organisation.

The subject of justice in the earthly civitas (i.e. the human world) is examined at length in Frank Garcia’s impressive book, under the modern title of ‘global justice.’ The scope of the book is determined by two factors: (1) it is concerned with the specific dimension of global justice which applies to international economic activity; (2) it analyses the subject according to ‘three takes’ which have dominated recent Western political thought (Rawlsian liberalism, communitarianism, and consent theory) (P. 3.) My focus here is upon the second of these delimiting factors. It is given the following explanation:

There are of course many more theories of justice within Western political theory, and a comprehensive approach to the ethical foundations of global justice would need to engage in a comparative study of justice in normative traditions both within and beyond the West.

Of interest in this passage is its juxtaposition of two critical ideas: on the one hand, the identification of global justice as being, in the last end, an ethical problem; and on the other hand, the belief that the resolution of the ethical problem would come about through a comparative (i.e. empirical) investigation of normative traditions. The underlying implication is (I believe) not that ethical questions can be dissolved by, or exposed as, empirical concerns, but that some form of comparative study represents the realistic limit of what can be achieved by way of progress in the face of so much entrenched division. If so, this reflects the more pessimistic implication of Augustine’s letter: justice in the worldly community is not genuine justice but is forever limited to a kind of compromise between human wills.

Glimpses of this pessimistic conclusion can be found throughout the book, particularly in its introductory pages. The ‘three takes’ have been selected, for example, due to their importance to the way global justice ‘has been theorised’ and ‘applied’ in international economic law (P. 4.) The third, in particular, is included as something which ‘lies closer to our lived experience of trade’ and begins by contemplating ‘the ways in which both language and law recognise that theft, coercion, exploitation, and trade are not the same thing…’ (P. 9: the accompanying footnote makes clear that the reference to ‘law’ here denotes positive law). Here we might begin to suspect that the book’s method is dictated not only by adherence to an Augustinian pessimism, but also a rejection of the more positive implication of Augustine’s message (that true justice may be ‘indeed described’). For the distinctions between trade, coercion, theft and exploitation are not mere legal or linguistic differences, but moral differences which the linguistic (and sometimes legal) distinctions aim to capture. A community’s linguistic distinctions, like its laws, reflect the speakers’ comprehension (and obviously, sometimes miscomprehension) of the deliverances of practical reason. A linguistic community which did not differentiate between, say, forced and free exchanges, would not be in possession of an ethical distinction; but it would be incorrect to say that the ethical difference was dependent upon the development of local terms for ‘coercion’ and ‘consent’: see e.g. Aquinas’s distinction in Summa Theologiae I-II.94.2c between what is self-evident in itself, and self-evident to us.

Methodological detachment (the substitution of empirical for ethical investigation) may represent agnosticism about the practical possibility of resolving ethical problems; but the methodological constraints thus imposed can encourage a deeper moral scepticism, as detectable in this passage, a few paragraphs on: ‘… what emerges from the comparison is that there isn’t (and perhaps cant be) a single path or approach to justice on a global scale in a globalising world. This is so because of the persistent reality of pluralism, central to globalisation and therefore to global justice’. (P. 10, my emphasis). The ‘global’ of ‘global justice’ is thus synonymous with ‘pragmatically agreeable by all’ rather than ‘universally recognised as true’.

What of the second term in that phrase, the ‘justice’ of ‘global justice’? Here the book prescinds from agnosticism and doubt, but directly considers ‘the nature of justice itself.’ (P. 12.) Justice is ‘a relationship between a set of core political and social [cf. moral] values about the distribution of benefits and burdens, and the outcomes of social processes.’ (Id).1 The context here ascribed to justice (political, social) invites the conclusion that it is some form of social construction, arising and existing in a domain concerned with practical possibilities and ideals, power and agreement: a conclusion reinforced by the reference to the ambiguous word ‘value.’ (Are ‘political and social values’ those things which are valuable for a community, or those that are valued by a community?) Likewise, the qualification that justice is one of a community’s ‘core’ values might be taken to suggest that some political (social!) questions inevitably stand in need of answers, however they are resolved in substance; or maybe it is simply that justice is, prevalently, ‘valued’ as a ‘core’ element of a community’s political and social character.

The author’s position is revealed a few lines further on. Social outcomes (such as decisions of a court) can be evaluated in all kinds of ways, for example in terms of their efficiency, but justice evaluates them ‘in terms of their consistency with the values of those affected by them.’ (P. 12, my emphasis.) The question of justice is ‘whether affected people will judge a particular institutional outcome consistent with core values about proper distributions.’ (PP. 12-13, my emphasis.) Hence, in questions of ‘global justice’ it is necessary to ask:

But whose core principles, and which ones? Put another way, is global justice possible, and is the very idea of it coherent? (PP. 13-14.)

This, Professor Garcia says, is a question for philosophers and theorists; the practical question (on which the book focuses) is how to ‘establish a truly global basis for global justice’. (P.14.) But here the book has exceeded its methodological constraints: one asks the practical question only because one believes that the ‘discourse’ between plural ideas is one in which nothing can be definitively established on the basis of sound reason, but only by agreement. Where Augustine laments the imperfect reasoning of ‘those affected,’ contrasting this with the proper understanding of justice that it is possible to obtain through sound reasoning, the book’s practical concern suggests that global justice is established on a ‘global’ (i.e. agreed, negotiated) basis: in other words, a political and not an ethical basis. Divided interests obviously erode the possibility of global agreement (as Augustine well understood), but the book’s concern is with ‘the normative implications that follow from such pluralities.’ (P. 14, my emphasis).2 The book’s hope is less than Augustine’s: though its aim is global justice and not some phantom of justice, it seeks for true justice on the plane of ‘compromise between human wills’ (De Civitate Dei, XIX.17) without elevating its gaze toward the truly right and ethically reasonable.3

The three main chapters of the book develop possible ways of conceiving the problem of global justice. Each can be regarded as proposing a different way of characterising the relationships between states:

1. Integrity-based

Integrity is here understood not, as in Dworkin’s usage, as an interpretative principle (the reconciliation of present decisions of principle with past practice as well as moral soundness), but as ‘a way of characterising the locus or source of one’s moral obligation’. (P. 120.)4 Here, a suitably revised conception of ‘Justice as Fairness’ represents an integrity-based approach to global justice because ‘it links a liberal state’s foreign policy back toward that state’s own normative commitments.’ (P. 121.) Political leaders in the White House may well disagree with those in Tehran or Beijing about the nature of obligations of justice; but for any of these states to act with justice in the face of such disagreement, it is necessary only that each acts in a way that is true to its own traditional principles of justice, soberly and honestly conceived. This allows for the maintenance of trade relationships between states separated by ideological differences. Calling upon Rawls’s distinction between non-liberal and ‘outlaw’ states, the integrity conception enables liberal states to trade with non-liberal states even when they are ‘pursuing the most destructive policies.’ (P. 27).

As Professor Garcia concedes, this is not really a ‘take’ on global justice, but of justice understood in transnational contexts. It has nothing substantive to say regarding distributive justice, or any other difficult question concerning the demands of justice, and it proposes no doctrine concerning the status or operation of international institutions.5 To these observations let me add two more: (1) it relies upon the idea that the principles of Justice as Fairness are indeed a faithful representation of the traditional political and social values of liberal states (states as ideologically distinct as the United States and France, for example); but is not this suggestion just as much an ‘imposition’ on liberal peoples who disagree about the very meaning of liberalism? (2) it moves from the pragmatic methodological premise that one may profitably focus on the justice of trade relationships whilst holding other concerns of justice in abeyance, to the substantive (and false) premise that obligations of justice in trade do not intrinsically belong to (i.e. are severable from) a comprehensive enquiry into just actions: that it is possible to trade (justly) with states which have committed terrible human rights atrocities, so long as one is true to one’s own principles of fairness in dealing.6)

2. Relation-based

Here, justice is not considered to be a matter of acting consistently with one’s own principles, but of commitments and responsibilities which arise from one person’s (or organisation’s) relationship with another. In the context of international trade, developments in law and state practice are giving rise to new forms of inter-state relationship, and introducing (through ‘shared commitments and understandings’) incipient forms of ‘global community.’ (PP. 34-35.) This approach suggests that the increasing closeness and complexity of relationships between states creates shared understandings, including shared notions of justice. The starting point for this suggestion is that ‘justice requires … community’ (P. 146); but the substance of the idea is perhaps expressible as the claim that community requires justice (if it is to avoid collapsing into hostility and anarchy). Unlike the first approach, this relational idea provides a basis for ‘global justice’ in the proper sense. But notice also that (like the first), the resultant norms of justice are not ‘imposed’ but come from state practice; and in that context it seems relatively unimportant whether the ‘model’ of international relationships is one conceived through the lens of social contract(s), or through that of communitarian philosophy (where nevertheless ‘justice is determined by the members’ shared understandings, not coercive of them—otherwise, justice would be tyranny.’) (P. 147.)

Here it seems to me that there are two questions worth raising. (1) Given the book’s insistence on respect for cultural differences, can ‘globalisation’ be considered somehow free-floating and exempt from that same requirement? If not, then the book’s optimism (which reflects Rawls’s optimism) must itself be questioned. Would developing nations regard ‘globalisation’ as a positive force, increasing the prospects for justice over the world, or as the strengthening of political, economic and ideological ties between a relatively small club of North American and Western European nations in whose hands, for the most part, lie the sorts of technological advances that have eliminated ‘time’ and ‘distance’ from foreign affairs? (2) What role is played by ‘shared understandings’? In the sentence-fragment quoted above, justice is determined by shared understandings, and cannot be coercive of them unless justice is to collapse into tyranny. The emphasis here falls on ‘shared’ rather than on ‘understandings’: an ‘understanding’ (of justice) that is not ‘shared’ would in fact be tyranny and not justice at all. Furthermore, ‘shared understandings are not only necessary for us to know what justice is, they are necessary to make justice work.’ (P. 147; see also PP. 149-50: it is necessary to examine to what extent the understandings are ‘actually shared’). More emphatically:

Finding out what justice consists of requires a historical analysis of a society’s shared life, not an a priori argument or a rational reconstruction of their beliefs. (P. 146.)

But such an enquiry could only tell us what certain people asserted, held or believed about justice; it could reveal nothing about justice itself. Nor would such a history of ideas amount to an account of a community’s ‘shared’ conception of justice, for the members of a community do not ordinarily hold beliefs about justice ‘as positive’, but rather as true.7 The explanation or defence of belief must proceed from what is understood, not from what is shared. To be sure, the detailed elaboration of the demands of justice will involve a process Aquinas calls determinatio: a process of working out the detailed content of operative laws with the same creative freedom that an architect works out the detailed design of a house (Summa Theologiae I-II.95.2c & 99.3 ad 2; 104.1c; II-II.57.2 & 77.2 ad 2; IV Sent 15.3.2.). But potential divergences in practice between states that may result from this freedom are not so great that they allow fundamental disagreement about human goods (such as peace). There are not in fact infinitely diverse conceptions of human good or of what counts as a flourishing human life, and practices which are inconsistent with the human good (i.e. which prioritise the good of one people over that of another) cannot be justified by reference to the weight of traditional conceptions.

3. Transaction-based

What is at stake here, according to Professor Garcia, is consent: it is the consensual characteristic of trade relationships which distinguishes trade (as a mode of economic exchange) from theft, coercion, exploitation, etc. (P. 42.) By focusing on the dynamics of consent, it becomes possible to distinguish genuine trade from arrangements which outwardly resemble it, but contain elements of an exploitative or predatory nature. Much of the analysis of the third chapter is devoted the differences between legitimate and illegitimate forms of trade. The analysis will be of tremendous importance to those working in the area of international trade law, as well as international politics more generally. The key passage for present purposes however is this one, on the social costs of unjust action:

My concern [over the distinction between trade and non-trade] has nothing to do with moral principles but simply reflects an attempt correctly to evaluate our collective economic self-interest. Insofar as we make consensual bargains and not other kinds of exchanges, we preserve and enhance the opportunity to engage in future beneficial consensual bargains, and we reduce the social costs of overreaching. On the other hand, to the degree we engage in predation, coercion or exploitation, we may lose potential partners for future beneficial transactions, and we certainly increase the social costs of making and enforcing such bargains. (P. 238.)

Take three is therefore probably best understood as promoting a kind of social Darwinism: norms of global justice represent the fittest (i.e. most fitting/appropriate) arrangements for international relations, and it is therefore to be assumed that a process of adaptive selection will ultimately motivate states to accept or enact such norms as the basis of their dealings. It is an explanation very close in spirit to Hart’s account of why the (positive) law of virtually all human societies reflects the promotion of certain traits (‘truisms’) deemed to be of value by human beings. But a Darwinist account is a descriptive theory, even if concerned with the ‘internal’ attitudes of participants, when what is needed is a practical one: for the issue is not simply that human beings, or those associations of human beings known as ‘states,’ ‘peoples,’ ‘multinational corporations’ and so on, regard certain sorts of relationship as beneficial to them, and worth having more of. It is that human reason, operating practically (i.e. deliberating not about what is, but about what should or can be brought about through action), apprehends certain things (‘human goods’) as beneficial components of a flourishing life, and elects to pursue them. Among these goods are the goods of peace and justice between nations. It is therefore reasonable for states to act in ways which foster, maintain or even extend these goods, ‘creating conditions’ for their appearance or persistence; and it is unreasonable for states to act in ways which sabotage or impede them.

The point about this practical explanation is that justice appears in it as an end, worth having for its own sake, and not simply as an adjunct or instrument for some further end (such as subsequent possibilities for trade). We glimpse the truth of this when we understand that the further opportunities that justice may enable us to pursue are precisely peaceful, just opportunities: the peace and justice being something valued more highly than the profit gained (for high profits can be gained through wars of domination). Global Justice indeed offers sound, concrete guidance to the practical reasoning of those engaged in international relations. This is a welcome contribution, but the carefulness and sensitivity of the book’s practical project must nonetheless resist transformation into a pragmatism to which international law is, perhaps, especially vulnerable.

This leads me to a conclusion quite distinct from that of the book. For Professor Garcia (who is after all writing in the specific context of international trade), the problem is that of elaborating an agreed vision of global justice. But it seems to me that the fundamental problem lies instead in the effort (diplomatic, economic, legal, military, etc) to oppose the demands of justice to the Machiavellian actions of states which care nothing for justice, except perhaps as further lip-service in the diplomatic game. This is as much the case in trade as in any other area of international relations (with which trade is, after all, inextricably linked). The profound importance of Global Justice lies in its articulation of strategies for the organisation of such efforts, and its clear drive to move justice from the realm of academic discussion into the concrete and problematic realities of earthly politics.



  1. To be exact, the text refers to what ‘[t]he term “justice” essentially describes’, but what the term describes essentially is (disquotationally) justice itself. []
  2. I pass over the issue of whether the derivation of normative conclusions from descriptive premises in this context violates the principle known, somewhat erroneously, as ‘Hume’s Law.’ []
  3. See P. 22: ‘[i]f we ignore the real limits of consensus … (ignoring, in a sense, the reality of pluralism), we run the risk of imposing in an equally oppressive manner our own conceptions of justice’ (my emphasis). []
  4. Given Dworkin’s characterisation of ‘integrity’ as ‘justice in the real world’, the book’s version is not all that far removed. []
  5. PP. 117-35. []
  6. See in particular P. 27: the ‘claim’ (of justice) on liberal states ‘cannot reach beyond … to other states’; and offers no firm position on ‘how to manage relations between liberal and illiberal states’ (PP. 27-28. []
  7. See Finnis, ‘Natural Law Theory: its Past and its Present’, 57 Am J Juris (2012) 81-101. []
Cite as: Sean Coyle, Theorising Global Justice, JOTWELL (March 27, 2015) (reviewing Frank J. Garcia, Global Justice and International Economic Law: Three Takes, Cambridge University Press (2013)), http://juris.jotwell.com/theorising-global-justice/.
 
 

In Praise of Accountability

Jeremy Waldron, Accountability: Fundamental to Democracy (April 2014), available at SSRN.

Accountability is a term that gets bandied about a great deal these days, sometimes as a criticism of regulatory government (agencies are not accountable to the people), sometimes as a justification for federalism (when government is closer to the people it is more accountable). It is also a term that has been widely disparaged by scholars as vague, fanciful and under-theorized. In Accountability: Fundamental to Democracy, Jeremy Waldron remedies this situation. By carefully parsing various meanings of the term, focusing on the essential meaning, explaining its importance, and responding to the concerns it raises, Waldron has convincingly demonstrated the way that accountability is, as his title asserts, fundamental to democracy.

To focus the discussion, Waldron distinguishes between three different ways in which the term “accountability” is used in political discourse. The first is forensic accountability, where the actions of a person with some sort of power or authority are assessed by a supervisory entity according to an established norm. The second is consumer accountability, where the power-holder acknowledges the importance of considering the views of the people whom its actions affect. Third is agent accountability, where the power-holder has been appointed by a principal, must report its actions to the principal, and can be sanctioned or dismissed if those actions are deemed unacceptable. Judicial review, where a court determines whether a statute or executive action violates the standards established by the Constitution, is an example of forensic accountability. Calls for “client-centered” administration, which figured prominently in Al Gore’s “Reinventing Government” initiative when he was Vice President, are based on consumer accountability. These may be important from a juridical or management perspective, Waldron argues, but the third type—agency accountability—is the one that is fundamental to democracy.

The analysis of principal-agent relations was originally developed in private law, specifically business law, and Waldron, in making his argument, gets a good deal of philosophic mileage out of the term “business.” The theory of democracy is that government is conducted in the people’s name. Therefore, in colloquial language, government policy is their business. Thus, it is the duty of the agent, that is, the government officials who act on the people’s behalf, to report and explain their actions to their principal, the people. Part of the reason for doing so is to enable the people to exercise their authority to dismiss the agent if they are displeased with his performance. But one of Waldron’s most insightful points is that the officials’ obligation to report is an independent duty that follows from the basic definition of their role: “demanding that the agent indicate what he has been doing so far as the principal’s business is concerned and that he justify it to his principal . . . is part and parcel of agent-accountability, not just preliminary to sanctioning of the agent.”

This insight generates a number of important implications. To begin with, it enables Waldron to insist that a general, public understanding of governmental action is a basic goal of government itself, that it leads to an official’s duty to explain, rather than a citizen’s duty to understand. Thus, the people’s apparent naïveté or unconcern is no excuse for secrecy or obfuscation by officials. Waldron’s approach also enables him to avoid the abstract, fictitious character of discussions that invoke “the people”; as he points out, the duty to report is not owed simply to this formidable abstraction, but also to each citizen as an individual. Waldron further notes that the obligation to explain cuts across Burke’s distinction between the representative as conduit and the representative as trustee, thus integrating separate strands of democratic theory. Regardless of whether an elected official sees her role self as reflecting the views of her constituents or as using her own judgment once those constituents select her, she must nevertheless explain her actions to them. A further point is that the duty extends to all constituents, not only those who voted for her; there is no constituent to whom a representative is entitled to say: “This is none of your business.” Waldron does not discuss constitutional cases, but his article provides a particularly persuasive argument against the egregious decision in U.S. v. Richardson, 418 U.S. 166 (1974), where the Court held that, despite the constitutional provision that “a regular statement and account of the receipts and expenditures of all public money shall be published from time to time,” the CIA’s budget could be kept secret.

There are many other illuminating insights in this article that could be discussed, but the point I want to note in closing is the remarkable clarity and accessibility of its presentation. Waldron is a philosopher, and pays the usual attention to linguistic precision and detailed analysis that is typical of the field. But the writing is absolutely free of jargon and unexplained references to other scholars, to say nothing of conscious obfuscation that more than occasionally afflicts philosophic work. He shows the same commitment to his readers that he asks elected officials to show to their constituents—to lay one’s case before the relevant audience in complete and comprehensible language. As a result, even if one disagrees with him, one will learn a great deal from his article—which is one of many reasons why I like it lots.

Cite as: Edward Rubin, In Praise of Accountability, JOTWELL (March 6, 2015) (reviewing Jeremy Waldron, Accountability: Fundamental to Democracy (April 2014), available at SSRN), http://juris.jotwell.com/in-praise-of-accountability/.
 
 

How to Use Economics

Ha-Joon Chang, Economics: The User's Guide, Pelican Books (2014).

The Cambridge economist Ha-Joon Chang has contributed to a new series of Pelican Introductions a user’s guide to economics, with the novel objective of creating a class of “active economic citizens.” (PP. 457, 460.) His objective opposes the prevailing attitude that economics is a science that must be left to the experts. Throughout his book he seeks to debunk the presumed scientific status of economics. This then provides the platform for his mission statement: “If there is no one right answer in economics, then we cannot leave it to the experts alone. This means that every responsible citizen needs to learn some economics.” (P. 5.) Without wishing to challenge Chang’s grand ambition for the general citizenry, my concern here is to consider the book from the perspective of a subset of users of economics, lawyers and legal theorists. Incidentally, I shall also refer to a more specialist subset, economists themselves.

The book takes the form of a narrative encyclopaedia, readable but densely informative. One of Chang’s motivating concerns is that economic discussion should be grounded in hard facts, and these are plentifully provided—frequently upsetting cherished orthodoxies that have assumed an almost intuitive appeal. Notably, the facts are brought to bear against the belief that modern economic prosperity has depended upon free trade. Chang convincingly demonstrates that nothing could be further from the truth. (PP. 49, 60-61, 64-65, 71, 82, 94, 400, 402, 408-10, 430-31.) Yet the facts, for Chang, do not lead to an empirical standing for the discipline of economics. It is ineluctably swayed by political and moral considerations. (PP. 112, 164, 176, 438, 451-52.) The market itself is constrained or permitted in accordance with these factors. (PP. 312, 387, 393-96, 437, 452.)

Although the political affiliations of particular economic approaches are often identified by Chang, he does not adopt the position that economics is merely political, that economic analysis is an alternative way of writing a political manifesto. His book provides full access to the technicalities of economics, the subject matter it assesses, and the expertise it provides. If Chang is insistent on debunking the scientific status of economics, he is equally convinced of the exceptional value and importance of economics, favouring a pluralist approach to ensure that different techniques are available to address a variety of economic problems that are faced by individual countries and the world collectively.

Chang’s pluralism is illustrated most clearly by his survey of the nine schools of economics (Austrian, Behaviouralist, Classical, Developmentalist, Institutionalist, Keynesian, Marxist, Neoclassical, Schumpeterian), which culminates in a table setting out their assumptions and favoured policies. (PP. 166-69.) He advocates intellectual diversity and a cross-fertilization of ideas in employing this wealth of resources. (PP. 161-64, 453.)

One obvious value of this book for lawyers and legal theorists inclined (or otherwise) to draw upon economic insight in furthering their understanding of law is to ensure a broader appreciation of which economic insight attracts them and which economic insights they might be neglecting. To suggest the book as required reading would not overstate its value. Beyond this elementary value, the book serves to stimulate greater reflection on the basic relationship between law and economics. Having established the fundamental point that it is not a single relationship between law and economics, but rather a possible relationship between law and developmental economics or an alternative between law and neoclassical economics (to take only two possibilities from a variety that could be increased greatly if Chang’s pluralism is embraced, but is still numerous if confined to discrete schools), the further question poses itself as to what basis can be found for making (or evaluating) the choice.

One response to this quandary is to suggest that the competing economic approaches are to be tested by a common standard of increasing overall wealth: conflicts between them amount to a miscalculation on one side or the other. But anyone who has digested the contents of Chang’s book would find it difficult to make such a proposal and keep a straight face. However, if we follow Chang’s conviction that political and moral forces are at work in positing any particular conception of wealth (what counts as wealth, how it is to be pursued, and how it is to be distributed—PP. 91, 126-27, 215-16, 235-36, 274, 307, 318-19, 338-39, 446-47, 451-52, 459), this raises a deeper problem in looking at the relationship between law and economics, or, indeed, politics (and morality) and economics. The deeper issue is which way round the relationship should be understood.

If society’s values (political or moral) influence what counts as the overall wealth of that society, and hence determine which economic approach will advance that conception of wealth, then those values will hold a dominant position in their relationship with economics. And if law is regarded as a means of conveying and implementing those values, then the same point can be made about law’s relationship with economics.

The significance of contested values affecting an individual society’s determination of its own economic path is magnified when the wealth of nations is brought into view. One nation’s path to economic progress may be the means to another nation’s economic downfall. Chang illustrates this vividly in recounting the impact of the British industrial revolution on India. In the words of the Governor-General of the East India Company: “the bones of the cotton weavers are bleaching the plains of India.” (P. 56.)

One lingering apprehension from the uses of economics as portrayed by Chang is that, in the absence of a scientific status, economics is left with an instrumental role implementing, not merely essentially contested, but, essentially divisive agendas. However optimistic we may be about overcoming social and global divisions, it follows from Chang’s portrayal of their discipline that the primary users of economics, economists, require guidance from elsewhere.

Cite as: Andrew Halpin, How to Use Economics, JOTWELL (February 20, 2015) (reviewing Ha-Joon Chang, Economics: The User's Guide, Pelican Books (2014)), http://juris.jotwell.com/how-to-use-economics/.
 
 

Cyber-Sexual Harassment

Danielle Citron, Hate Crimes in Cyberspace, Harvard University Press (2014).

Danielle Citron’s Hate Crimes in Cyberspace is a breakthrough book. It has been compared, and with good reason, to Catherine MacKinnon’s Sexual Harassment of Working Women. The book makes three major contributions. All are central to furthering the equality of women and men both in cyberspace and elsewhere.

First, Citron convincingly catalogues the range of harms, and their profundity, done to many women and some men by the sexual threats, the defamation, the revenge pornography, the stalking, and the sexual harassment and abuse, all of which is facilitated by the internet. Women who blog on virtually any topic, certainly on feminist or sexuality sites but also on technical software or engineering sites, or who simply have a presence in cyberspace in any of the various forms the medium permits, can be and frequently are targeted for extreme forms of vitriolic and sexualized assaults, not just from a few isolated and psychopathological bad apples, but by large groups of linked commentators, who quite intentionally and explicitly spread the cyber-hate through organized, networked technologies, and to virtually all corners of the cyberspace. The assaults threaten the victim and sometimes her family members—particularly younger sisters—with sexual injury, rape, dismemberment and murder, and are sometimes accompanied by personal information such as place of employment and addresses. The defamation comes in the form of claims that the victim is incompetent at her work or in her career, hyper-sexualized (e.g., that she enjoys sex with strangers, with home addresses included), or dishonest or fraudulent, which are spread widely, and are intended to professionally injure and humiliate the victim in her workplace or school, and prevent her advancement or hiring in her field. “Revenge pornography” refers to the publication for public consumption and without the victim’s permission of nude photos or videos which may have been made with the victim’s knowledge, but are then widely distributed for the express purpose of exacting revenge, usually because of a break-up. Stalking is in the form of constant harassment and surveillance on line, with the threat of it spilling over into offline stalking as well. The harassment and abuse take all of these forms as well as others: chat rooms created and dedicated to the destruction of the victim’s reputation, or to the expression of hate and sexual insults, or to the mounting of threats intended to intimidate or terrorize.

The harms occasioned by this online conduct are sadly predictable. First, and most concretely, or demonstrably, are the harms to reputation, vastly magnified by the reach of the internet into personal and professional life. A young woman who has been targeted in this way will find it difficult to procure a job or a promotion, or simply to garner respect: the sexual claims, pictures, and videos will be the first page of hits, when her name is Googled by potential employers, colleagues or school administrators. Doing some sort of Google search, or at least assessing a potential employee’s or student’s impact and stature in social and professional online media, are increasingly common practices by HR departments and hiring committees, as well as admissions departments in graduate or professional schools. High-performing students or applicants do not get the jobs, fellowships, or internships for which they would otherwise qualify, causing significant damage to the launching or furtherance of their careers. More pervasive, and in some ways more damaging, however, victims of cyber-harassment are simply terrorized. Women who have been attacked online with threats of assault, rape and murder, particularly when identifying locating information is attached, are not safe in their homes, neighborhoods and workplaces. Some re-locate, pulling their own children out of schools or, if they are themselves still children, their parents are forced to make the move to another state, thus interrupting their own lives and jobs, in order to try to calm the fear instilled by the online assaults. Emotional and psychic harms are pervasive and penetrating: a woman or girl is robbed of her self-possession, her security in her own body, her self-esteem, her peace of mind, and essentially her comfort in her world; she is alienated from her own sexuality, which becomes a source of anxiety and threat; she feels her future slipping away and out of her control; she loses her sense of oneness with other human beings, either in community, neighborhood, workplace, as the “other” becomes a source of threat and harm rather than nurturance and support. She is cast apart, and then she casts herself apart, from a mutually helpful community of reciprocity when she becomes a target and a victim. Her identity in a place she values—cyberspace, and the communities of which she is a part in that world—shifts from whatever she was—student, lawyer, software engineer, technician, teacher, wife, lover, blogger, friend —to what she is repeatedly called: cunt, slut, whore, bitch, liar, fraud, incompetent, stupid. The economic and professional or vocation harms are equally profound. She may lose clients and customers and ultimately curtail her career, if her business has been ruined by the online defamation and harassment. She can’t find a job, or seek a promotion, if she can’t risk her current or potential employers doing a Google search. She lives in fear of discovery. And lastly, her civic participation—including her freedom of speech—is drastically curtained. She shuts down her blog. She closes her social network accounts. She quits commenting or guest-appearing on blogs of others. She stops making public appearances. She cannot risk the danger, or take the harassment. So she tries to close down her public and cyber persona. She retreats: out of cyberspace completely, and out of the public sphere likewise, all in the hope, usually frustrated, that such a retreat will end the abuse, threats, and harassment. She tries to regain her private life, in other words, by making it smaller: by sacrificing her participation in whatever public and cyber worlds in which she had once found a welcoming home. All of this, Citron successfully shows, both through case studies and a very careful parsing of the available statistical data.

The second contribution, and the bulk of the book—the middle third to half—is a legal analysis of these harms. Citron begins by comparing the current status quo regarding our understanding of gendered harms in cyberspace with the legal environment surrounding domestic violence and sexual harassment thirty or twenty years ago. Then, as now, sexual harms up to and including physical violence suffered by women were both widely denied, and, where denial couldn’t be effective, simply trivialized, and where they couldn’t be trivialized, simply outweighed by constitutional concerns of greater magnitude on the side of non-regulation. Sexual harassment on the job was regarded as part of the rough and tumble that women would have to endure in exchange for their hubris in assuming a role in the public world of work, or alternatively as a part of our much valued free speech against our employers or academic institutions. Domestic violence was regarded as, alternatively, a man’s prerogative, a woman’s shame, the woman’s fault, the way of the world, or the necessary price all parties pay for a much to be desired privacy, and marital rape was simply an oxymoron—consent to sex within marriage having been rendered at the altar, a religious duty or simply part of the marriage compact. All of these modes of dismissing gendered harms is echoed in today’s legal climate surrounding cyber sexual harassment. Cyber-harassment is, first, relentlessly cast as the victim’s fault by the perpetrators themselves: fully deserved punishment for some perceived slight, whether the “slight” is breaking off a relationship, not being available for sex, or simply speaking one’s mind. The abuse itself is then routinely dismissed by what passes for legal analysis by libertarian commentators as the relatively trivial cost of the much-to-be-desired wild-westiness of the unregulated internet, or alternatively the perhaps regrettable but nevertheless unavoidable price of the free speech rights we all enjoy. Meanwhile the victims are dismissed as whiners, or thin-skinned, or overly sensitive, as incapable of manning up to the slings and errors that go with the territory on the internet, as too dull or humorless to take a joke, as too prone to hysterics to recognize harmless or pathetic barbs when they see them, and as incapable of understanding the importance of First Amendment values. As Citron says, we have been here before.

Citron rehearses the parallel history of the treatment of domestic violence and sexual harassment, however, to make a constructive and re-constructive point, not just a descriptive one: the national conversation was profoundly altered by legal campaigns to construe domestic violence, marital rape, and sexual harassment as harms, as crimes, and as violations of women’s civil rights. Those campaigns of course are ongoing and the work is incomplete, but it is undeniable that the conversation has shifted. Domestic violence may be under-policed and under-punished by the NFL as well as by prosecutors, but it is no joke, as it was for decades; marital rape is under-prosecuted, but it is nevertheless a crime, whereas before 1970 or thereabouts it was not, and sexual harassment law may be riddled with problems but it exists, and there’s less sexual harassment because of it. The same, Citron argues, could be and should be happening here. We need to massively shift the conversation, and law will need to play an outsized role—perhaps the major role—in doing so. With concentrated advocacy in courts, and legal and political movements in state legislatures and Congress, the legal construction of this conduct can change: cyber hate is not funny, trivial, or harmless, and it is not protected speech under the First Amendment. Much of the behavior she describes, of course, is already criminal and most of it is at least tortious. Assaults and threats in cyberspace that are intended to put a victim in fear and which in fact do so are already crimes, no less than if those threats were simply published in a newspaper; cyber-stalking is already criminalized in most states; the intentional dissemination of false statements that interfere with someone’s career advancement is defamatory and even libelous per se, as are claims of hyper-sexuality, and almost all of the behavior Citron catalogues constitute examples of the torts of assault, intentional infliction of emotional distress and invasions of privacy. Some of it, furthermore, although not all or even most of it, Citron shows, are also already violations of various civil rights laws, at both the state and federal level: this behavior interferes with the ability of women, and some gay and straight men, to access their rights to contract, to work, to own property, to free speech, and to an education, and does so largely because of gender or sexual orientation (or perceived sexual orientation). It is thus an affront to the value of equality that is the goal of our civil rights laws, including Sections 1981, 1983 and 1985 actions at the federal level and their state law counterparts. Citron does a thorough and admirable service of clearly delineating the avenues for legal relief that already exist, thus belying the widely held belief that this behavior is totally unregulated and therefore beyond the law’s reach. Cyberspace is not a completely unregulated wild west, and perpetrators of hate crimes as well as their victims need to know that. Citron calls for greater enforcement of all of these laws that already target hate crimes in cyberspace, as well as of ordinary crimes such as stalking, or torts such as defamation, and intentional infliction of emotional distress, as well as expanded possible legal avenues for relief against those service providers that facilitate it (with a particular focus on those providers that encourage the publication of harmful and hurtful speech, and then charge a fee to the victim to have the offending material removed). That greater enforcement would require not just greater technical and legal savvy on the part of victims and their advocates, but perhaps most importantly, focused educational campaigns directed at police forces and prosecutors’ offices.

Much of the behavior catalogued, however, is not touched by law, and Citron devotes much of this part of the book to a discussion of possible reforms—and objections that might be raised to them—that would strengthen the victim’s hand. Tort law is prohibitively expensive even where the cause of action is theoretically available, criminal law is undercut by prosecutorial indifference or ignorance, existing laws that do specifically target some of this behavior, such as cyber-stalking laws, are under-enforced, and civil rights laws, both at the state and federal level are under-inclusive: they often don’t cover gender motivated hate crimes, for example. Furthermore, much of this conduct, even though clearly criminal or tortious, is outside the reach of the law simply because the perpetrators cannot be identified. And, some of the conduct is simply not criminal or tortious at all: state harassment and stalking laws often target only communications sent directly to the victim, rather than communications about the victim sent to the world, and revenge pornography is not specifically targeted by any particular body of law. (Citron and Mary Anne Franks from Miami have proposed model legislation that does criminalize revenge pornography, and the book details both that campaign, and the experience of states that have adopted it.) Citron suggests reforms to existing state laws that target harassment and stalking that would update them, to bring cyber hate crimes within their scope, and would make clear their grounding in civil rights ideals: cyber-harassment and stalking interfere with the rights we all should enjoy to access an education, to pursue employment, and to enjoy participatory rights in the public sphere. Civil rights laws at the federal level need to be strengthened, and the logic of the causes of action that might be brought under them both against private parties and against state officials clearly delineated. Citron does all of this in the book, along with proposed legislative reforms that would make those laws better vehicles for remedying violations. She adds a similar discussion, by necessity more technical, regarding the possible liability of service providers and site operators, comparable to the liability of employers for sexual harassment on the job, again both with respect to laws already on the books, and possible reforms.

The third contribution, and last third of the book, is her discussion of possible objections, and then her turn to extra-legal reforms, with a particularly helpful focus on the roles of educators, parents, and the providers themselves (“Silicon Valley” for short). The bulk of the section on objections is devoted to responding to First Amendment challenges. The chapter on schools, parents and Silicon Valley sensibly discusses the actions these private actors and parties can take, and singles out for praise those providers and Silicon Valley companies, such as Facebook, that police against hate speech on the sites and platforms they sponsor. These discussions are immensely valuable. The discussion of First Amendment objections is thorough, and I believe completely convincing; indeed, the only objection I have to it is that she gives it too much weight. The discussion of the role of private parties in changing the culture is wise and in a way reassuring: there is something all of us can do, as educators, parents, and providers, and Citron clearly and carefully outlines suggestions that would go some way toward changing this world, whether or not with the law as a partner.

The book thus serves as a blueprint for what Citron insightfully calls a new civil rights movement. It gives legal representatives and victims a roadmap for charting out legal actions that can be taken to halt the abuse being currently suffered, and to compensate for past harms. It gives state and federal legislators a menu of options for strengthening the law in this area, so that cyberspace can be a safe as well as robust domain for the expression of views on all subjects. It responds to First Amendment worries about the possibility that her proposed reforms might chill valuable speech, and it suggests paths for interested private parties who want to affect the trajectory here outside the law. It’s a tour de force and I believe it will succeed. It will change the law, change the conversation, and change attitudes toward and regarding this extraordinarily abusive and harmful behavior. It will strengthen women’s civil rights, and thus strengthen women’s equality and at core, it will be a significant step toward ensuring women’s safety in the public space of employment and education, as well as in cyberspace and the home. This is a book to celebrate, to study, to argue over, and, mostly, to use.

Unanswered Questions

The book also, though, raises a host of questions it doesn’t come close to answering (as did MacKinnon’s Sexual Harassment of Working Women). It describes horrific harms, and, like a video of a woman being knocked out cold in an elevator by her football-playing fiancé, it leaves the reader horrified. But there are three things it doesn’t do, which in turn delineate areas where I think future scholarship could contribute. The first is descriptive or explanatory: why? Why is there so much hate speech online? This book provides no answer. The second is prescriptive: what could we do about this, short of better employing the criminal justice system, feeding still more defendants into an overcrowded penal system? The book seemingly assumes a well-functioning criminal justice system, capable of meting out sensible sentences to yet another class of lawbreakers. The third is theoretical: why has the law been so slow to recognize, much less provide recourse for, these harms occasioned by some citizens on others? The book doesn’t provide an explanatiaon. I’ll comment very briefly on each.

First, on the cause of the hate crimes themselves. Citron shows, and argues, that the internet magnifies the consequences of hateful conduct. Perpetrators are shielded to some degree by anonymity, and victims are not confronted in real space and time, thus giving perpetrators some sense of detachment both from the nature of their actions and their consequences. But this doesn’t explain its origin. Citron is a lawyer and legal academic, and not a sociologist, so perhaps it is simply beyond the scope of the project. But it is a question that the book implicitly poses from start to finish. Where in god’s name is all of this hate coming from? Why are these people so bent on destroying the reputations, the careers, the sense of safety, the pleasures, and the speech of women who are total strangers to them? Is some of this rage prompted by the targeted women’s relative privilege and success? Does the successful female law student bound for a high visibility career in public service or a well-paid successful career track in the private sector trigger rage in men, some of whom may feel she has displaced them, and so much rage that they are prompted to sexual assaults? Or, do women, particularly those on feminist sites, or those who post on sexuality issues, provoke fury by sometimes implicitly removing themselves, and perhaps their readers, from the sexual marketplaces of availability? Does that alone provoke rage, by seemingly shrinking the opportunities perceived by their perpetrators and tormenters for sexual opportunities or release? More simply, is this a backlash against strong women speaking their minds—women who but for the availability of the internet, might be servicing men’s needs, both sexual and domestic, rather than expressing opinions on the world’s woes? And why is the fury so sexualized? After decades now of voluminous scholarship on pornography, rape, and sexualized violence, we are woefully short of answers to these questions. Citron’s book though raises the question anew, and if anything with a greater sense of urgency. What she shows is that the sexual assaults, and the fury and rage behind them, are not deniable, they are not jokes, they are not harmless, women are not complicitous in their creation, and they clearly are obstacles to women’s equal participation in public spheres. Surely we would be better off all around if we could not only criminalize some of this behavior, but if we could understand it as well.

Second, on Citron’s prescriptive arguments for reform. Any number of otherwise sympathetic readers will find troubling Citron’s reliance, and possible over-reliance, on criminal law as the hoped for legal response to much of this behavior. We already over-incarcerate our co-citizens. We put people in prison for trivial offenses, for way too long, and in inhumane conditions. This book however (and in contrast to MacKinnon’s anti-harassment and anti-pornography campaigns that rigorously eschewed reliance on criminal law) seeks yet another expansion of the role the criminal justice in maintaining social order. There will be strongly felt resistance to it for just that reason. Are there alternatives to the criminal law, and to criminal justice, for coming to grips with these behaviors? What might they be? Citron suggests some answers in her last chapter, but those suggestions are a little too fleeting and a little too late—perhaps they could have come earlier and more prominently. Internet service providers could require all contributors to identify themselves. Schools could more actively encourage civil online behavior. Parents should monitor, and where appropriate punish, their children’s misogynist or hateful online behavior. And so on. And, while norms are changing, perhaps there is a necessary role for more robust enforcement of the criminal law. But it too carries its own injustices, and the book might have acknowledged as much. More generously, the development and conceptualization of non-penal responses to these harms, I believe, is one of the large and most important areas of inquiry the book opens, but doesn’t adequately address.

And finally, on legal theory: the book gestures toward, but doesn’t fully develop, why it might be that the law has been so slow to respond to these obvious threats to the safety of half of its subjects. The behavior itself, after all, is not that different from the non-cyber assaults, threats and defamatory utterances on the streets, in homes and workplaces, all of which are fully understood to be crimes, torts, or violations of civil rights. Some of the harms suffered by the same sort of conduct in cyberspace is if anything worse. So, where are the police, the prosecutors, the courts, the judges and the lawyers? Part of the explanation for the absence of robust enforcement of laws against this behavior is legal, as Citron shows: the law is inadequate and in need of reform. Part of the explanation is technological: the perpetrators are anonymous, which raises obvious difficulties, but also, to understand the consequences of the behavior requires a degree of technological sophistication still beyond the ken of police, prosecutors, bench, and bar. And a part of the explanation is constitutional: there is a widespread if erroneous belief that this conduct is “speech” and therefore “protected speech” under the First Amendment, and therefore beyond the reach of tort, criminal, or civil rights law. But there are other currents at work as well, that run a little deeper than all of these. Let me just name a few, all of which fall under one umbrella: for various reasons, or at least for the following three reasons that I’ll briefly catalog, these harms are likely to be unnoticed, or invisible. Therefore, the attempt to articulate them is likely to be shut down or muted.

Why has the occurrence, and even the prevalence of these harms been so relatively unnoticed? First, like domestic violence, although in very different ways, cyber violence and cyber harms are almost entirely “privatized”—by which I mean that they occupy a space beyond the immediate purview of the state. Criminal law exists primarily to keep the King’s peace—not to rectify injustices between private parties. Criminal cases, after all, are actions brought by the state, not victims, against defendants who have transgressed against the state’s norms. Cyber violence, though like domestic violence, doesn’t really threaten the King’s peace: domestic violence doesn’t threaten the King’s peace because it takes place within a private space ruled over by a different sovereign—the patriarch—and cyberspace doesn’t threaten the King’s peace because it takes place in a free Hobbesian wilderness not ruled over by anyone, or at least we like to think it does. In both realms, though, the home and cyberspace, in our popular imagination, as well as in the ruminations of any number of legal commentators, law has no role to play. The patriarch rules the home, and can punish accordingly, and in cyberspace, as in a Hobbesian world, the naturally strong rule, and as well they should—the strong in cyberspace, after all, have only words at their disposal, not sticks and stones, and can do no real harm to the King or his subjects.

The second reason for the relative invisibility of these harms, I believe, is the relative degradation of tort law. Whether or not the kinds of behavior Citron describes constitute crimes or civil rights violations, they are all, clearly, torts: they are intentionally harmful acts by an actor against a victim that cause injury. Tort law, however, as a body of law that seeks to provide redress for private wrongs, has been widely discredited and its efficacy badly compromised by all sorts of forces, and consequently, it simply doesn’t present itself to the minds of victims or their counselors as a credible vehicle for pursuing justice against those who wrong them. Tort is viewed academically as a body of law that reallocates the cost of accidents, not a body of law that provides a path toward justice for victims of intentional wrongs, and it is viewed popularly as a body of law that facilitates ungrounded complaints by people who refuse to take responsibility for their own actions, brought by greedy trial lawyers looking to exploit the suffering of others. As Professors Zipursky and Goldberg have shown in their groundbreaking scholarship on the subject, tort law has largely lost its original meaning: a body of law that provides those whose legal interests, such as an interest in bodily integrity and freedom from fear, have been infringed, with a vehicle for recourse against their wrongdoer. We are all the worse for it, and women active in cyberspace, and who suffer because of that fact, perhaps more than the rest of us.

In the area of gendered harms, though, tort has been even further devalued for an additional reason, of direct relevance here. Feminist legal reformers of the 1970s and 1980s, and most prominently Catherine MacKinnon, quite consciously turned away from tort, and to civil rights, and likewise away from the concept of harm, and to the concept of equality, when they conceptualized the wrongs of sexual harassment. There were good reasons to do so, and there was much to be gained through that turn, but there was also a price to be paid, and Citron’s book perhaps inadvertently shows what that price has turned out to be. Briefly, by turning to equality and civil rights, rather than by seeking to expand upon the utility of tort remedies, feminist reformers forewent the opportunity to focus on the physical and psychic injuries occasioned by harassment and assault in all spheres: employment, the home, the street, and cyberspace all. The civil rights action, unlike a possible tort action, requires a showing of cognizable harm to pocketbook interests, rather than harm to the psyche, reputation, or emotional wellbeing. The very idea of the civil right to be free of sexual harassment is consequently tied to economic equality, and hence to the workplace, where incomes are threatened, rather than to psychic or physical injury, wherever it occurs. The turn to civil rights, then, in the development of this area of law, carried an educational and political opportunity cost: tort actions permit and require the claimant to delineate the exact nature of the injury, whether or not it is tied to lost income. That delineation might have educated an otherwise oblivious public to the harms of sexual harassment that go beyond the monetary, and well beyond the particular and peculiar locale of the workplace.

And lastly, the cyber harms that Citron delineates are invisible in part simply because they are sexual assaults. Sex occupies a peculiarly venerated status in our contemporary cultural imagination, included our legal-cultural imagination. Our current zeitgeist is relentlessly “sex-positive:” both in pop cultural and in academic life, sex itself—the activity, that is—can simply do no wrong. “Sexual assault,” in a thoroughly sex positive world, is nearly oxymoronic: regarded not as assaultive and wrongful, but as the result of a sex panic, or of repressed desire coupled by a Freudian displacement of self contempt. Sex sells, but it also legitimates: there is a widely shared interest among sexual actors, sexual predators, and the .01 percent alike in maintaining the perception that with a celebrated right to sex, all is right in the world. Claims of sexual assault upset that venerated status. It is not entirely surprising that they are now met with a wave of skepticism at least as ferocious as that which met their nineteenth and eighteenth century counterparts.

So, for all of these reasons—the Hobbesian natural world of the internet, the decreasing viability of tort as a body of law meant to provide justice for those whose legal interests are harmed by private actors, and the construction of sexual harassment as a civil rights violation limited to the workplace and schools —the harms done to women and men by virtue of sexual assaults on the internet are likely to go unreckoned. That is clearly changing: the scholarship (and advocacy) of both Danielle Citron and Mary Anne Franks has already gone a long way toward making those harms visible. This book makes a powerful case that we must do something about this conduct, and that and we must use law to do it. There simply must be a more robust legal response to harmful, hateful, and misogynistic behavior, in cyberspace, no less than in workplaces and the home. That is a huge contribution, to women’s equality, to the quality of our social and civic life, and to the justice of our law.

Cite as: Robin West, Cyber-Sexual Harassment, JOTWELL (January 21, 2015) (reviewing Danielle Citron, Hate Crimes in Cyberspace, Harvard University Press (2014)), http://juris.jotwell.com/cyber-sexual-harassment/.
 
 

Dworkin’s Interpretive Concepts v. Metalinguistic Negotiations

David Plunkett and Timothy Sundell, Dworkin’s Interpretivism and The Pragmatics of Legal Disputes, 19 Legal Theory 242 (2013).

Ronald Dworkin famously claimed, in Law’s Empire, that law is an “interpretive concept.” Dworkin’s argument for this claim appealed to a certain type of legal disagreement, what he called “theoretical disagreement.” Theoretical disagreements, he maintained, are genuine disagreements in which parties share the same concept but differ in their application of the concept because they interpret shared practices differently.

David Plunkett and Timothy Sundell provide a close examination and illuminating critique of Dworkin’s argument for the claim that law is an interpretive concept in Dworkin’s Interpretivism and the Pragmatics of Legal Disputes. Their focus, however, is on Dworkin’s broader discussion of interpretive concepts in Justice for Hedgehogs (JFH) and his disagreement-based argument for intepretivism.

In Justice for Hedgehogs, Dworkin distinguishes interpretive concepts from “natural-kind concepts,” which pick out natural kinds, and “criterial concepts,” the meaning of which is given by defining criteria. Whether something satisfies a criterial concept, such as the concept book, is a matter of whether it meets the defining criteria; and disagreement, where a criterial concept is in play, concerns whether the defining criteria are met. The correct application of interpretive concepts, in contrast, is not a matter of applying defining criteria. They are concepts we share, not because we use the same criteria, but because we share social practices in which these concepts figure. (JFH 6.)

As in Law’s Empire, Dworkin offers a disagreement-based argument for interpretive concepts in Justice for Hedgehogs. Plunkett and Sundell argue that Dworkin’s disagreement-based argument for interpretivism fails; and they defend an alternative account of the kinds of disputes—legal and nonlegal—that interested Dworkin.

As Plunkett and Sundell summarize Dworkin’s disagreement-based argument, they begin with a distinction between two types of legal disputes about the law in a particular jurisdiction. In the first type, parties to the dispute agree about the conditions for being law in that jurisdiction but differ as to whether they are met. In the second type, the parties agree about the relevant empirical facts but disagree about what the law is. Plunkett and Sundell call the latter “bedrock legal disputes.” Dworkin argued, with respect to such disputes, that if we take the meaning of ‘law’ to be given by the rules legal actors follow in using the term, we would have to conclude that parties to a dispute mean different things and so do not genuinely disagree. But since they sometimes clearly are disagreeing, they must mean the same thing by ‘law,’ even though they are not following the same rules in applying the term. The content of the concept and its correct application therefore cannot be fixed by defining criteria. Instead, Dworkin contends, law is an interpretive concept, correct application of which is fixed “by the normative or evaluative facts that best justify” our legal practices. (P. 244.) This account of bedrock legal disputes allows parties to a dispute to share the same concept, while disagreeing about what the law is. Bedrock legal disputes are thus best understood as theoretical disagreements, disagreements in which parties share a concept, while disagreeing in their usage, hence, in their views about when to apply the term that expresses that concept.

As Plunkett and Sundell explain, in Justice for Hedgehogs, Dworkin expands his interpretivism to various legal, moral, and political concepts, such as freedom justice, and democracy, and even to some concepts that appear straightforwardly descriptive, such as book. What disputes employing these concepts have in common with bedrock legal disputes is that they are all disputes in which the parties disagree deeply, yet we are not inclined to conclude that they are merely talking past one another. Parties to such disputes persist, even when they become aware of all the relevant empirical facts, as well as of their divergent applications of terms. Plunkett and Sundell call this class of disputes “seeming conceptual variation cases” (“seeming variation cases” for short), because ordinarily we would conclude that there is semantic variation in such cases.

It is Dworkin’s argument schema—the disagreement-based argument type—that comes in for Plunkett and Sundell’s central criticism. They take issue with Dworkin’s views not only about interpretive concepts, but also about noninterpretive concepts. (P. 254.) As they rightly complain, “Dworkin hasn’t given us a good theory of exactly what interpretive concepts are.” (P. 255.) They contend further that the disagreement-based argument fails because it rests on a flawed premise, namely, that “the best way to explain how an exchange between two speakers serves to express a genuine disagreement is, in almost all circumstances, to suppose that those speakers mean the same thing—that is, express the same concepts—with the words they use in that exchange.” (P. 246.) Dworkin is mistaken, they contend, to think that shared meanings best explain how a dispute can express a genuine disagreement.

While Plunkett and Sundell agree with Dworkin about the existence of bedrock legal disputes and, more generally, seeming variation cases, they disagree about how to account for them. They argue that the disputes of interest to Dworkin are best explained as involving “metalinguistic negotiations.” In metalinguistic negotiations, speakers use the same term to express different concepts and are engaged in negotiation, pragmatically advocating about which concepts should be used. Consider disputes about whether the racehorse Secretariat was an athlete or whether waterboarding is torture. Speakers in such disputes express different concepts using the terms ‘athlete’ and ‘torture’ and negotiate which concepts to use and how to use language. Nevertheless, the disagreements are genuine and serve a purpose.

Plunkett and Sundell move beyond bedrock legal disputes to apply their account to “hard cases.” Consider legal disputes over whether a drug trafficker who trades firearms for illegal drugs is “using” the gun or whether a law that there be no vehicles in the park applies to use of a riding lawn mower. (P. 269.) According to Plunkett and Sundell, “disputes about such issues have exactly the sorts of features that make them ripe for analysis as a metalinguistic negotiation. The speakers involved are by and large mutually aware of all the relevant nonlinguistic facts… And it is at least plausible that there is no antecedently settled matter of fact about the meaning.” (P. 269.) Parties to the dispute are familiar with what a riding lawn mower is like, for example; they differ as to whether it counts as a “vehicle.”

Plunkett and Sundell maintain that the idea that bedrock legal disputes are best analyzed as metalinguistic negotiations vindicates Dworkin’s thought that “they involve a disagreement about a topic that is worth arguing about.” (P. 268.) And that idea does so without the theoretical cost of introducing a whole new category of concepts or relying on a controversial typology of concepts. In addition, unlike Dworkin’s appeal to interpretive concepts, an explanation of bedrock legal disputes that appeals to metalinguistic negotiations remains neutral between positivism and non-positivism about law.

Readers may be more persuaded by Plunkett and Sundell’s negative case against Dworkin’s interpretivism than by their positive alternative for explaining bedrock legal disputes. But their proposal is intriguing and may prove fruitful to legal theorizing beyond accounting for certain disagreements about law.

This article should be of serious interest not only to Dworkin scholars but to those working in analytical jurisprudence more generally, and not only for its detailed and enlightening examination of Dworkin’s interpretivism. Plunkett and Sundell are among a small number of philosophers working at the intersection of metaethics and philosophy of law. In this article, they bring tools from the philosophy of language to bear on Dworkin’s ideas, revealing difficulties for those ideas that might otherwise be missed. The article thus nicely illustrates the benefits of drawing on what might seem to be remote areas of philosophy to address central problems in analytical jurisprudence.

Cite as: Connie Rosati, Dworkin’s Interpretive Concepts v. Metalinguistic Negotiations, JOTWELL (December 10, 2014) (reviewing David Plunkett and Timothy Sundell, Dworkin’s Interpretivism and The Pragmatics of Legal Disputes, 19 Legal Theory 242 (2013)), http://juris.jotwell.com/dworkins-interpretive-concepts-v-metalinguistic-negotiations/.
 
 

Do Animals Need Citizenship?

Will Kymlicka and Sue Donaldson, Animals and the Frontiers of Citizenship, 34 Oxford J. Legal. Stud. 201 (2014).

The planet’s population of wild nonhuman animals has declined by one-third over the past fifty years. Over that same period the human animal population has doubled. (Hereon, I will simply refer to “animals” and “humans.”) The two numbers and the trends they represent are connected. Human activity accounts for much of the decline in wild populations. Non-wild animal numbers have grown, over the same period, but this is due largely to the trebling of meat consumption by humans. This is expected to double again by the year 2050. Something like 56 billion animals are now slaughtered annually for human consumption. Ten of them, approximately, for each one of us; and the ratio is growing. The amount of animal suffering due to purposeful or knowing human conduct is staggering.

There are signs that humans are becoming more thoughtful about, and more sensitized to, the suffering and exploitation of animals. Animal welfare laws have become more common and have begun to address the conditions of animals in factory farms. Nevertheless, the larger picture is depressing: an “Eternal Treblinka” (Zoopolis, P. 2) whose moral and political superstructure remains largely unquestioned. Despite over a century and a half of campaigning, human advocates for better treatment of animals have rather little to show for their efforts.

In their 2011 book, Zoopolis: A Political Theory of Animal Rights (Oxford University Press), Sue Donaldson and Will Kymlicka recite these facts in prefacing their diagnosis of the impasse that animal-welfare activism finds itself in. Activism has made little headway because advocates of better treatment for animals have, for the most part, argued within three theoretical frameworks, which the authors call a “welfarist” approach, an “ecological approach,” and a “basic rights” approach. Welfarism, as they define it, accepts the subordination of animal interests to human interest, and advocates “humane use” of animals within that framework. The ecological approach focusses not on individual creatures but on the ecosystem itself, and promotes the interests of animals only insofar as that is part of protecting the ecosystem. The basic rights approach extends the idea of inviolable human rights to animals. Unlike the first two frameworks, the basic rights approach regards animal interests not as subordinate but as fundamentally equal to those of humans. The authors accept the basic rights approach, but confess that despite decades of articulation it has found a foothold only among certain activists and academics. It has “virtually no resonance amongst the general public” and remains “a political non-starter” (Zoopolis, PP. 5-6), even though electorates have increasingly shown a degree of worry about the treatment of animals. Why? Or, as the authors put it:

Having acknowledged that animals are living beings whose suffering matters morally, why is it so hard to take the next step and acknowledge that animals have moral rights not to be used as means to human ends? (Zoopolis, P. 5.)

The authors note that selfishness (both individual and corporate), selective blindness, and cultural tradition are contributing factors, but they argue that the typical way in which animal rights theory has been framed is itself an important obstacle: it “focuses on the universal negative rights of animals, and says little about positive relational duties.” (Zoopolis, P. 6.) Typical negative rights are the right not to be murdered, not to be raped, not to be experimented on, while a typical positive duty would be to render aid to someone who is in distress, and a typical relational duty would be a duty to support one’s family and to stick up for one’s friends. The nearly exclusive theoretical concentration on generic negative rights for animals stands in stark contrast to the human context, in which “the vast bulk of reasoning and moral theorizing concerns not [the] universal negative rights but rather the positive and relational obligations we have to other groups of humans.” (Zoopolis, P. 6.) So, the authors propose, let’s talk about positive and relational rights for animals. At first, this seems to be an odd prescription to be making. If a short list of negative rights for animals is a hard sell, one would expect that enlarging the list to include positive rights would be harder still.

But there is more to the authors’ prescription than might first appear. They point out that many of the rights and duties humans owe each other arise out of relationships: parent and child, teacher and student, master and apprentice, and the typically asymmetrical dependency of latter on the former gives normative content to the positive duties—and correlative positive rights—that arise. (It might be misleading to call these relational rights and duties, rather than positional rights and duties, because all rights are in a sense relational.) The first step, to escape the impasse animal rights theory finds itself in, is to take account of the many different ways that humans and animals interact. From this wide variety, Donaldson and Kymlicka extract three salient, morally relevant categories. There are domestic animals, that we have bred to be dependent upon us and live amongst us, such as household pets. There are wild animals, who are capable of living apart from us and with whom we have little interaction unless we are animal ethologists, zoologists, or zookeepers. Finally, there are liminal animals, that live amongst us but do not normally associate with us, such as squirrels and feral cats. The authors propose to recast animal rights theory so that it is structured around these three categories.

The way they do it involves taking what one might call a political-philosophical turn or reorientation. Because domestic animals live among us and must for the most part continue to do so, they are to be treated as citizens, enjoying the same rights and duties as human citizens—adjusting of course for relevant differences in ability, just as we do for children and the severely cognitively handicapped. Wild animals species are to be treated as sovereign nations having rights to their territories. Liminal animals are to be treated as foreign visitors or resident aliens. All three categories are protected by certain universal negative rights; but integrated with these are “differentiated positive rights” (Zoopolis, P. 11) that largely track the three categories.

The article I like a lot, Animals and the Frontiers of Citizenship, is a sequel to the book, elaborating and defending their proposal of citizenship for domestic animals in the states in which they reside. I was most struck by the originality of the proposal to attribute duties to domestic animals, two duties in particular. One is a duty of civility, that is, to behave appropriately to social circumstances: oxen should tread carefully, dogs should not lunge, cats should not scratch upholstery. Another is a duty of contribution: oxen should pull, dogs should fetch the newspaper, and cats should, well … the article does not answer every question one might raise. The importance of attributing duties is that it meets a plausible demand that citizenship be founded on a capacity to enter and honor reciprocal relationships of mutual accountability. Although animals are fully capable of misbehavior, there is resistance to thinking them capable of wrongdoing. The authors, in fact, are doubtful of applying the concepts of moral and legal culpability to animals. Some will raise a conceptual objection to the notion of a creature’s genuinely bearing a duty for which she cannot be blamed for breaching. Nonetheless, domestic animals clearly have a “capacity for norm-responsive behavior” (P. 215), and by “developing new ways of engaging the subjectivity of these co-citizens, focusing less on the ability to articulate or understand propositions, and more on attending to their ‘varied modes of doing, saying and being’,” (PP. 207-08) there may be enough to get a sufficiently robust idea of reciprocity going, to satisfy political philosophers and others who conceive citizenship in those terms.

Do domestic animals need citizenship, and the responsibilities and rights that constitute it? In other words, wouldn’t they do just as well or better if they were recognized merely as non-rightholding beneficiaries of a suitable list of positive and negative duties borne by humans? After all, it’s hard enough to win over skeptics about animal rights; won’t it be even harder to convince a them that domestic animals have citizenship rights they don’t really need? But Kymlicka and Donaldson present a plausible and attractive picture of how we all might be better off—humans and domestic animals alike—if we lived together in a community united in citizenship.

Cite as: W.A. Edmundson, Do Animals Need Citizenship?, JOTWELL (November 12, 2014) (reviewing Will Kymlicka and Sue Donaldson, Animals and the Frontiers of Citizenship, 34 Oxford J. Legal. Stud. 201 (2014)), http://juris.jotwell.com/do-animals-need-citizenship/.