In this book, The Making of Constitutional Democracy: From Creation to Application of Law, Paolo Sandro has done what few in recent common law scholarship have attempted: presented a persuasive case for the interconnection between some issues in high legal theory and democratic legitimacy. His excursion into legal theory is needed to argue against, among others, Kelsen, legal realists, critical legal scholars, and interpretivists that there is a meaningful distinction between law-applying and law-creation and that the former is not always the latter. But these points are also pivotal to democratic theory. His case, briefly put, is this: if there is only constant creation of meaning in legal processes, then there is no such thing as applying the (ex ante) law, and law could not fulfil its function of conduct guidance in complex societies. Also, there would be no way that people rule themselves, even through their representatives, for whatever is legislated or democratically created does not (ex ante) determine the results of individual cases. So there could be no real collective autonomy, undercutting democratic legitimacy.
Sandro is discussing law-application not only by officials, but by private law subjects as well. The book is a real learning experience. If you have accepted some of mainstream legal or political thinking, get ready to have several of your received ideas challenged on a sophisticated level.
The degree of precision in this discussion may be surprising to those who are familiar with the usual English-language literature on the separation of powers, the rule of law, constitutions, and norms, to name just a few subjects. The book discusses theories and draws insights from both Anglo-American jurisprudential scholarship and the Continental tradition. It does this so much that at points, it has a survey-the-literature quality. You will learn much more than you expect about the positions of thinkers on a variety of topics in theoretical jurisprudence and political theory. That includes taxonomies and classifications that do not always seem essential to Sandro’s main argument stream, but may be valuable as clarifying frameworks in some debates.
All sorts of topics receive Sandro’s treatment: the nature of constitutions and constitutionalism, the linguistic meaning of legal texts, the nature of discretion (and why Dworkin’s taxonomy isn’t helpful or accurate), the connection between normative defeasibility and radical rule scepticism, the doctrine of the separation of powers and the difference between it and the division of powers, even (briefly) methodology in general jurisprudence. The book also offers a criticism of Hobbes, based on archaelogical discoveries, on the passage from pre-political to political society; a view of the common law as a different kind of law, having a different kind of connection, to the exercise of political power than code law; a critique of Leiter’s moderate legal realism (borrowed from Schauer); and an account of a tension between two ideals, the rule of law and what Sandro calls “legality.” We learn, e.g., a constitution can be only political in nature, and that there are four types of rule application with different amounts of discretion associated with them. In these respects, the book is a tour de force.
The book has limitations. One of the most important for common law thinkers is that Sandro’s account of law-application only pertains to norms that can count as what is communicated by a legal text (created by an authority with the power to do so), according to his theory of the meaning of legal texts in Chapter Five. He has no clear account of law-application for common law decisions by courts, even those following precedent, or of law-application for those courts applying principles of a political constitution, as in the U.K.
What interests me most in the book is Chapter Five, where Sandro rejects the Gricean and neo-Gricean accounts of meaning and favors the idea of text-acts to replace the idea of speech-acts for legislation. I think he’s done an excellent job in this, with compelling and carefully crafted critical arguments, grounded in sound empirical observations. He is intent on correcting the direction of much legal theorizing by “putting lay people back at the centre of law’s interpretive field….” (P. 5.) Establishing, correctly, to my way of thinking, who controls meaning and how are large steps in this direction. This enables him to give an account of easy cases (when legal texts are all that is at issue) that do not require adjudication, a realm of determinacy in law.
I do not agree with all of Sandro’s philosophical claims, even in Chapter Five; but I think the reader will find that in spite of a few flaws, the book is a worthwhile addition to the literature on a number of key topics in legal theory and democratic theory.
David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart (2022).
David Dyzenhaus argued in the last paragraph of The Long Arc of Legality that, except for the rare cases where there is a need for a revolution, “our moral and legal lives are completely and utterly intertwined.” (P. 422.) But this apparently radical endorsement of natural law theory is nuanced because Dyzenhaus has only a pragmatic morality in mind. In agreement with Hart, he rejects the assumption that legal philosophers should choose between the metaethical positions of moral realism and emotivism (P. 370) and suggests, instead, that the law is a kind of “laboratory for the testing of moral ideals.” (P. 387.)
A distinctive and interesting part of Dyzenhaus’s contribution is his explanation of how that pragmatic morality relates to law. To understand the law’s authority, Dyzenhaus puts legal subjects, instead of officials, at the center of legal inquiry. Jurisprudence’s “first question” becomes the question that legal subjects are entitled to ask from the legal system’s internal point of view, that is, the question “But, how can that be the law for me?” (P. 2), which Bernard Williams described as the “Basic Legitimation Demand” of any political society. A modern state must satisfy that justificatory requirement because that is what shows that such state “wields authority, rather than sheer or unmediated coercive power, over those subject to its rule.” (P. 213.)
An equally important element of Dyzenhaus’s construction is the “constitutional idea” that there is an “ongoing practice which constitutes legitimate authority” by means of the “voluntary interaction of the very subjects who are subject to that authority.” (P. 3.) Dyzenhaus turns to Hobbes’s social contract to justify this point. Nevertheless, he emphasizes a frequently neglected aspect of the role of officials in Hobbes’s Leviathan, which is the interpretive role to maintain both the civil order and the “mutual relationship of protection and obedience” that are constituted through that contract. (P. 6.) The “first question” of jurisprudence, adduced above, is constantly reiterated and must be answered to every subject, in every act of legal creation and application of juristic norms.
Dyzenhaus believes we should put to the side the question whether there is a necessary connection between law and morality and concentrate our efforts, instead, in developing a dynamic theory of law. The fundamental debate within jurisprudence is “neither between legal positivism and natural law theory, nor between theories of law and theories of adjudication”, but rather the divide “between static theories of law, as espoused by Bentham, Austin, Hart and Raz, and dynamic theories, as espoused by Hobbes, Kelsen, Radbruch, Fuller and Dworkin.” (Pp. 22-23.)
This brings us to a crucial disagreement between Kelsen and Hart. The problem of Hart’s Separability Thesis, for Dyzenhaus, is that it presupposes a static conception of law. Hart’s objections to Kelsen’s epistemological principle of unity – that prevents one from accepting a conflict between a legal and a moral norm, or between a municipal norm and a norm of international law – “missed entirely the most important dimension of Kelsen’s legal theory” (P. 20), which is the fact that such theory includes an account of the “dynamic process of legal change”, instead of remitting these changes to an exercise of discretion in an “extra-legal space.” (Id.)
While Kelsen’s legal theory is a dynamic theory that explains the legal ways in which officials perform their task to interpret and develop the law, Hart’s jurisprudence has little to say about legal interpretation. On Kelsen’s hierarchical structure of legal norms, “law regulates its own creation inasmuch as one legal norm determines the way in which another norm is created, and also, to some extent, the contents of that norm.” When we consider the details of this interpretive claim, we can appreciate another important difference between Kelsen and Hart. Legal interpretation, for Kelsen, is partly determined by the “juristic” values embedded in law, which Dyzenhaus–contrary to Kelsen’s self-understanding (x)–interprets as the “principles of legality” that constitute the “internal” morality of law, in Fuller’s sense (P. 316.)
Hart’s jurisprudence, in turn, upholds that in every legal case there is either a rule with a determinate legal content, or a penumbra space where a legal change is required, so that inside that space the judge is “not doing anything different from legislators” who resort to an external morality in order to modify the law. (P. 219.) Hart’s account of judicial discretion becomes, therefore, vulnerable to Austin’s “biggest mistake,” (P. 20) which was to treat the “law as a system of rules complete and ready for application, without regard to the process of their creation.”
Perhaps a traditional legal positivist will be unhappy with these thoughts, because Dyzenhaus ends up finding more connections between Kelsen and Dworkin than one could ever find between Kelsen and Hart. According to Dyzenhaus, Hart was wrong to accuse Dworkin of trying to undermine a theory of law by offering only a theory of adjudication that stands in a different level. That accusation fails, Dyzenhaus argues, precisely “because Dworkin, like Kelsen, argued for a dynamic model of law.” (P. 248.) Part of the task of a dynamic theory of law is to explain how the law regulates its own creation, including by means of adjudication. “For Kelsen the conflict [between municipal law and international law, or between law and morality] arises only if one adopts the static conception of law,” because on the dynamic model the legal order itself provides the procedures and the interpretive principles that allow this conflict to come to an end. The epistemic principle of unity, which underlies Kelsen’s postulate of a basic norm that allows us to interpret a set of authoritative pronouncements as constituting a single system, establishes a requirement of consistency and determines the “specific function of juristic interpretation,” which is to “eliminate these contradictions by showing that they are merely sham contradictions” once the law is understood in an intelligible way.
The best place to look for Dyzenhaus’s pragmatic morality, therefore, is inside the law, in the “principles of legality” that discipline the way in which political power is transformed into law. The law makes a moral difference in our lives not because it mirrors a pre-existing external morality that must be reflected in its norms (or, perhaps, a personal morality that a good-faith interpreter might wish to project into the law), but because it establishes processes for mediation between authorities and legal subjects, whereby “political judgments are converted into legal content.” (P. 3.)
The principles of legality play, in this dynamic process, a double role, which corresponds to two different “Kelsenian ladders” in the law’s hierarchical structure (or, if you want, two different aspects of the same ladder). As Dworkin explained in an early comment on Hart’s critique of Kelsen’s doctrine of the unity of law, Hart presents a question-begging response to Kelsen, when Hart objects to Kelsen’s requirement of consistency among different norms. Kelsen’s argument against normative conflicts should not be treated as a strictly logical argument, because that argument is not a descriptive statement of the kind an external observer asserts while purporting to report the content of a given norm, but rather a statement within the “dynamics of legal reasoning” that purports to make a conclusive statement “that some man or some official ought to do something,” all things considered.
It is this Dworkinian insight that inspires Dyzenhaus to develop the metaphor of two different Kelsenian ladders. The content of a norm must be justified both because the enactment of such norm is “legally authorized” and because it “fits within the unified field of legal meaning made up of substantive as well as formal norms” (P. 258.) In other words:
Besides the ladder of formal authorization there is what we can think of as the ladder of material concretization. When legal officials exercise their formal interpretive authority, they are also giving further content to the norm or norms they are interpreting, which requires an act of creative judgment. But, while creative, the judgment is constrained by the requirement that its content is understandable as a norm within the unified field of meaning. (Id.)
One of the roles of Kelsen’s basic norm, for Dyzenhaus, is to provide an epistemological norm that not only instructs officials on how to create a law, but establishes also an intellectual requirement to understand it in a meaningful and intelligible way. As Kelsen has put in a relatively early essay, “if the system of positive legal norms, reared upon the basic norm, is to be a meaningful whole, a comprehensive pattern, a possible object of cognition in any sense…then the basic norm must make provision for it”. To establish the validity of a legal system, the basic norm must contain a principle of non-contradiction and a set of “principles of interpretation” to determine how to understand the law.
By focusing on this aspect of Kelsen’s theory, Dyzenhaus departs from a central assumption of an influential interpretation of Kelsen in contemporary jurisprudence, namely the “weak reading” of authority, which claims that law’s authority is primarily addressed to legal officials.(P. 163.) If Dyzenhaus’s interpretation of Kelsen is right, it is the other way round: Kelsen’s theory of legal authority should be interpreted according to the strong reading of authority, because it places the “legal subject” in the “front and centre” of any authority relationship. (P. 164.)
Furthermore, the basic norm plays not only the role of explaining the seemingly evident fact that the constitution – if we consider only the validity of a municipal legal system – is legally valid (Id.) It performs, in addition, an interpretive function because it allows us to establish the right way – instead of only another way – to interpret and understand the content of law. By allowing us to understand the law as a dynamic system, which is conceived of as a gapless system, it assumes a principle which governs the way in which we interpret the law and explains how a polity is “governed in accordance with the rule of law in that law regulates its own production and all legal problems are solved in a dynamic law-governed process.” (P. 166.)
I think that Dyzenhaus’s Kelsenian account of interpretation, legal authority, and political legitimacy is very successful. Dyzenhaus’s book is a masterpiece. There are few works in contemporary legal philosophy that match its standards of quality and innovation. Dyzenhaus’s book combines the virtues of originality and insight, which are typical of authors like Dworkin and Raz, with the equally important virtues of discipline, sensitivity to historical context, interdisciplinarity, and generosity in the interpretation of other authors, which mark the works of Postema and other scholars.
You might find Dyzenhaus’s opinions unorthodox and distant from Kelsen’s original insights, and perhaps you are right about that. In effect, Dyzenhaus explicitly claims that “Kelsen’s theory cannot remain “pure”, or at least not pure in the way he understood this attribute, that is, as apolitical”. (P. 418.) But I suppose that, as a pragmatist, Dyzenhaus probably wouldn’t mind. After all, Dyzenhaus interprets Kelsen’s theory in the same way that a pragmatist would interpret our political morality or, perhaps, the internal morality of law, that is, by making explicit the implicit commitments of such morality (P. 386) and eliminating incompatible assumptions therein. (P. 387.) This pragmatic yet non-instrumentalist method of legal interpretation is one of the most promising candidates to overcome the current deadlock between natural law and legal positivism (P. 1), that seems to prevent the possibility of progress in the legal philosophy of our time.
Often an article or essay proves valuable for the points it directly advances in promoting the author’s view on the subject matter it covers. Sometimes, additional value is produced because the piece indirectly stimulates fresh thinking on that subject matter, irrespective of whether following those novel lines of thought proves to be compatible with or at variance with the author’s own viewpoint. In these terms, Kevin Toh’s essay on Legal Positivism and Meta-Ethics in The Cambridge Companion to Legal Positivism provides double value.
Toh is directly concerned to raise a number of important points related to the different levels legal theory operates on, and how an appreciation of meta-ethics might inform our understanding of the relationships between these levels and the fruit that might yield. Meta-ethics may assist both by analogy (P. 566), and by contributing its own perspective on an appropriate delineation of morals so as to inform legal theory’s own preoccupation with the law/morality connection or divide (P. 570). That latter contribution is expanded by Toh into an endorsement of wider philosophical collaboration between different disciplines. And it is this use of “resources made available by other areas of philosophy and related empirical disciplines” (P. 570) that shapes Toh’s own tentative contribution to understanding the nature of law. (P. 581.)
Indirectly, Toh’s work here stimulates a number of reflections on the different levels of legal theory. Potentially there are three: first order, addressing what the law is on a particular issue (563); second-order, concerned with the nature of law (P. 563); and a metatheoretical level, derived from meta-ethics, whose own precise concerns and accomplishments are less clear. (Pp. 565-66, 571.) Considering the interaction between different levels should produce a fuller awareness of what can be expected from legal theory, including the possibility of establishing the “ultimate legal grounds” (Pp. 567-68, 581) for determining what the law is.
Toh covers a number of issues. Some are central to his principal objectives. Some are ancillary, even tangential, to his primary concerns. Throughout, he provides observations and insights that merit serious attention. A central issue is the “double duty presumption” (Pp. 563-65), whereby it is presumed that a general theory of law provides common criteria for answering the second-order question on the nature of law and the first-order question on the valid grounds for reaching a determination of what the law is. Toh draws on the example of meta-ethics to argue that such a presumption is unfounded. (Pp. 565-67.) An ancillary move here involves a rejection of the widespread reading of Hart as accepting the link between the two questions. (P. 565.)
The other issue of central importance to Toh is the possibility of establishing (rather than presuming) a connection between the two questions, and here the influence of meta-ethics is paramount. (P. 569.) Toh explores in a sophisticated manner the prospects of establishing “modal constraints” on what can count as “ultimate legal grounds” through second-order legal theory. (P. 569.) Initially, his argument takes inspiration from the work of Peter Railton, considering the possibility of a meta-ethical understanding providing general criteria for what counts as a morality. (P. 566.) At this point, we have only a second-order appreciation of the nature of morality. The suggestion is then made that a similar move within legal theory might yield first-order theoretical results on what can count as ultimate legal grounds for determining the law. (P. 571.) The substantive work in pursuing this strategy (Pp. 571-78) is adroitly undertaken by Toh. He engages with the familiar material of the internal attitude present in the acceptance of rules, enhanced by attempts to thicken the notion of acceptance, to the point of contemplating the existence of “metaphysically contingent but naturally necessary” facts about human nature and the human condition. These are viewed as capable of shaping “the ultimate grounds of the law of any human legal system.” (P. 578.)
In a fair-minded critique of his own strategy (Pp. 578-81), Toh concedes that it has not, as yet, brought about a fulfillment of its promise. He acknowledges that the modal constraint as developed could be diluted to provide support for the laws of a particular legal system, even one we regarded as immoral, solely from the attitudes of its participants. (P. 581.) Nevertheless, he expresses the hope that the strategy he has explored here will impact upon the future course of theoretical debates on the nature of law, and legal positivism. (P. 581.)
There are good reasons to expect such an impact. However, in the remainder of this jot I want to draw attention to the indirect stimulation he has provided, to consider wider issues regarding different levels of legal theory, and what we can reasonably expect them to deliver. One immediate point to note is that the three distinct levels I mentioned in the introductory remarks above are not recognized in Toh’s discussion, either of legal theory or of ethics. This is apparent from Toh taking as a parallel to meta-ethics not a meta-theory of law but a second-order theory of law. Effectively, he treats meta-ethics as a second-order theory, and then a second-order theory of law as sharing its characteristics. He treats both as theorizing about the nature of morality (Pp. 566, 571) or of law. (Pp. 562, 570.)
For Toh, the pay-off from an understanding of the nature of morality or law is the ability to identify something as that, without necessarily endorsing it. (P. 566.) This applies both to the practices of a community (as amounting to morality or law) and to the specification of a theory (as a theory of morality or law). Yet, if this is the case, then there must be some distance between having a grasp of the nature of something so as to correctly identify it, and contesting with others working on the matter identified what exactly is its nature. That is to put the point in relation to competing theories of morality, such as Kantian or utilitarian (P. 566); or competing theories of law, such as positivist or anti-positivist. (P. 568.) In that case, it would be possible to recognize a metatheoretical specification of what counts as a second-order theory of law (or morality). Similarly, with the recognition of the practices of a community as morality or law, we might identify the practices as such, while still contesting what those practices should amount to. (Pp. 566, 581.)
If the role of a metatheoretical perspective is taken to be identification of the subject matter, leaving open theoretical divergence over its nature, its work is greatly diminished. Moreover, there is no reason to assume that this work should be given to meta-theory. Why not commence with a more finely grained appreciation of human experience and select from that those parts which warrant theoretical investigation as the same subject matter? In this light, Anthea, whose job it is to discover whether a community has law (Pp. 561-62) may choose not to email a philosopher friend but to call on the services of an ethnomethodologist.
Toh clearly has a more significant role in mind for a metatheoretical approach, in controlling what counts as the substance of a theory of law, ultimately at a first-order level. (Pp. 568, 578.) In turn, that requires second-order legal theories to internalize a metatheoretic outlook, in this strong sense (P. 569). If competing second-order legal theories sign up for this, then what theoretical height must be scaled in order to judge between them?
It is far from clear that any general theories of the nature of law boast of the capacity to deliver according to these demands: second-order enlightenment on the nature of law, providing first-order clarity on the ultimate grounds for determining what the law is, while exhibiting a metatheoretical stricture ruling out opposing theoretical perspectives. Bentham comes to mind, but that would only hold for his ethical theory. Even Ronald Dworkin, with his insistence on the importance of theory for practitioners, fails to explain how Gray J. in his dissent in Riggs v Palmer got hold of the wrong theory.
Questioning the credibility of a metatheoretical perspective to take control of legal theory, so as to ensure results at the level of determining what the law is, then raises a basic question of whether that expectation for legal theory was ever realistic. If this question is answered in the negative, we might have recourse to other disciplines, as Toh encourages, but not in order to strengthen the construction of legal theory across its interlocking levels. Rather, to acknowledge its limitations and the need for those to be complemented by other resources.
Cite as: Andrew Halpin, Taking Control With Meta
(June 2, 2022) (reviewing Kevin Toh, Legal Positivism and Meta-Ethics
, in The Cambridge Companion to Legal Positivism
561 (T. Spaak & P. Mindus eds., 2021)), https://juris.jotwell.com/taking-control-with-meta/
Perhaps it was the French Revolution that set it free. Since then, it haunts constitutional thought. It lures writers through a dubious promise of democratic credentials. It looms large in recent accounts of constitutional legitimacy. They have sought to “domesticate” (Pp. 796, 803; also P. 810) the beast by subjecting it to liberal and democratic constraints. But the beast resists such domestication, argues the paper. Appeal to constituent power as the source of constitutional legitimacy is deeply at odds with constitutionalism’s commitments to rights and the rule of law. One cannot both have the cake and eat it. It is either will or reason at the foundations of law. Such is the tension the author confronts us with.
This rich and insightful piece elicits reflection on a host of fundamental questions of legal and political theory. It will interest you whether you are concerned with the limits of democracy, the bootstrapping character of basic legal rules, principles of constitutionalism, or even the nature of self-determination and autonomy. It is accessible without specialist knowledge of constitutional theory. The work is more revolutionary than its title suggests. Crudely put, “Inherent Constraints on Constituent Power” argues that there are no inherent constraints on constituent power, and provides reason to think that there is no constituent power either. Let me explain.
As the paper presents it, constituent power is “the legally unlimited power of establishing or re-establishing a constitution.” (P. 796.) Constituent power refers to an act of will that is, in an important sense, self-justifying — in line with Emmanuel Sieyès’ and Carl Schmitt’s portrayals. The constitution-creating act of will, typically by “the people”, is itself the source of legitimacy of the relevant constitution. It is the source of its legal legitimacy and, it seems, of its moral legitimacy as well. In other words: the legal and moral correctness of this act of will is not open to question. The paper associates constituent power to what are sometimes called “strong” theories of popular sovereignty. (P. 800.) According to these theories, as the paper casts them, the people have the right to make a constitution with any type of content.
Thus conceived, constituent power is quite the indomitable beast. Still, as the paper shows, recent writings in liberal constitutionalism have sought to appropriate it for their purposes, perhaps in an effort to address “concerns about democratic deficits in liberal-constitutional regimes.” (P. 802.) But the beast is not easily “domesticated.” (P. 810; also Pp. 796, 803.) The writings the paper looks at, by Richard Stacey and Joel Colón-Ríos, firmly defend the central place in sound constitutions of certain individual rights and institutional arrangements, which no collective or individual decision must override. Self-justifying constituent power sits uneasily with these premises. It is not subject to legal or moral limits. It is therefore not liable to being constrained by rights or the rule of law, precisely because it claims to be a rival source of constitutional legitimacy.
Vainly postulating inherent constraints on constituent power “obscures significant tensions in contemporary constitutionalism.” (P. 812.) These tensions should be brought to the fore for the sake of “clear-sighted analysis.” (P. 818.) The paper refers to them as tensions between “democracy and constitutionalism.” (Pp. 810, 818.) At some junctures, the paper implies that the way to solve these tensions is to drop the concept of constituent power altogether, as it is incompatible with sound commitments of liberal constitutionalism. (Pp. 801, 807-08.) Tackle the beast by shooting it down.
But the paper itself suggests an alternative way forward. One of the paper’s core claims is that the writings it discusses ought better to distinguish between good and bad exercises of constituent power — between exercises that do and do not comply with liberal and democratic principles, indeed between focal and marginal cases of constituent power. (Pp. 815-17.) This would allow one to say that acts of constitutional founding by, for example, Franco or Pinochet involved constituent power (Pp. 810, 816), only to go on to normatively assess such exercises.
The implications of this suggestion go deeper than the paper notes. Thus understood, constituent power no longer has a built-in justification. It is not the thing justifying, but the thing to be justified. It is no rival to liberal democratic principles because it does not lay claim to taking their place. It is just a power like many others we find in the legal and moral domain. Legislative power, the power to promise, or the power to consent, to name just a few, may be exercised for better or worse. We can ask about the point of these powers and the practices supporting them, and identify exercises that advance or subvert that point. On this view, constituent power is just that: the power to make a constitution. (P. 814.) It may be involved whenever a constitution comes into being, but it may not always be soundly exercised.
The logic of this move is to reveal the ignominious beast to be nothing more than the bulky shadow of a pussycat. On this conception, constituent power is naturally subject to inherent constraints, certainly moral ones and perhaps also legal (well beyond the purely prudential limits the paper acknowledges: P. 814). What is meant by a “legally unlimited” power is ambiguous in any case. Even state sovereignty is in one sense legally unlimited, and in another sense very plausibly subject to legal constraints, if only from international law. Legal constraints may be synchronic or diachronic, actual or potential, and reflected in institutional arrangements of different kinds.
An account of constituent power should not remain content with telling central from marginal cases, and listing relevant constraints. It should work out the upshot of a failure to meet those constraints — a task only imperfectly accomplished in the literature, judging by the author’s sketch. Take legislative power, by analogy. A sound account will not only note that a statute that violates human rights is not a central case of legislation. It will moreover speak to the legal validity of the unconstitutional statute, institutional devices for annulment, and any moral obligation it generates, among other things. Central case analysis is no substitute for these kinds of enquiry.
To liken constituent power to a cat is not to deny the tension between choices and reasons, between decision-making acts and standing frameworks of rules. On the contrary: it is to say that the tension is fruitful rather than destructive. It should not be explained away but grappled with, as the paper prompts us to do. The very considerations of justice that call for respect of civil and political rights require that individuals and groups shape their own normative landscape, partly through the actions and techniques we call powers. Self-direction, both collective and individual, is a requirement of justice. We need to exercise self-direction to develop our identity.
The key question is not whether self-direction is appropriately subject to limits, but which limits are appropriate. Being subject to requirements of justice does not make us less autonomous as individuals, nor does it make a political community less sovereign. A sound exercise of my autonomy may involve binding myself, and so losing some of my freedom; constituent power may be no different, provided constraints are not unreasonable or unreasonably long. Popular sovereignty bounded by appropriate constitutional rules is not “weak” as opposed to “strong”. This mistakes a feature for a bug. It mistakes a cat for a beast. This paper guides us in overcoming the confusion.
In Reevaluating Legal Theory, Jeff Pojanowski addresses a central question of jurisprudence, that of whether a careful theory of what the law is, involves value judgments concerning what the law ought to be. (P. 1460.) In various forms, this question has been asked by philosophers from the beginning of the Western intellectual tradition. Thus, for example, Aquinas considers whether a law that is judged to be unjust (out of reasonable order) can continue to bind in conscience due to the normal authority of legal commands (Summa Theologiae I-II.95.2c; 92.1 ad 4; 96.4c). His answer is subtle and complex. Pojanowski’s article is similarly subtle and complex, and makes many useful points, though as indicated below, some of these could be taken further in future work.
Pojanowski’s article begins with a brief survey of recent responses to the central question by Oxonian philosophers, but his interest is primarily in the work of Julie Dickson. Dickson argued that the key to the controversy about the nature of law lies not in contrasting evaluation and description (i.e. that laws can be described without any evaluation), but in distinguishing types of evaluation: some evaluation (that centring upon the participants in a legal system in evaluating what is significant or important to them) is necessary, as distinct from moral evaluation, which is not. Pojanowski argues that such debates about the ‘dividing line between jurisprudence and normative philosophy’ (P. 1464: but does this not capitulate already to the positivist position?) actually turn upon broader moral considerations of ‘what is good for persons’ and ‘competing ways of thinking about society’, thus revealing something of our moral and metaphysical commitments. (Id.)
Pojanowski picks up Dickson’s identification of three types of evaluation that are necessary parts of jurisprudential theorising that are not morally evaluative: importance, significance, and illumination. (P. 1469.) The second part of the article considers the extent to which these values remain non-moral under scrutiny, and presents a general survey of Dickson’s book Evaluation and Legal Theory (Hart, 2001). It focuses upon Dickson’s claim to understand the law through the perspective of its participants. Perhaps the most obvious route for a theorist to take in this regard is some form of naturalism. But Pojanowski argues that while naturalised jurisprudence may offer a concept of law that is essentialist and value-neutral, this concept is evidently not the one Dickson has in mind when attempting to comprehend law from the perspective of the participants. (P. 1476.) This is because, inter alia, the naturalist method cannot be successfully squared with the desire to explain the nature of law in terms of the attitudes and beliefs participants have, not those of the scientist. (P. 1478.) Likewise, Dickson’s approach is incompatible with a hermeneutic explanation of law, since it seeks to remain morally detached and agnostic about the group’s understanding of law. (Pp. 1476-78.) These sections of the article are fairly brief, but they establish that Dickson’s theory has less room to manoeuvre than might be supposed. For they seek to establish that the theory cannot (a) describe essential features of law, (b) depend upon the understanding of the participants, and (c) remain morally neutral about the practice. (P. 1464.) More consideration of Finnis’s and of Voegelin’s work might have strengthened and broadened the article’s thesis, but an exploration of this avenue is beyond the scope of the present review.
The third part of the article comprises an argument for a teleological approach to jurisprudence that attempts to do (a) and (b), above, but denies (c). (P. 1479.) Its premise is that Dickson is correct to shun hermeneutic and naturalised approaches, but that it can only do so by rejecting moral neutrality. It begins with an argument that hermeneutical and interpretative approaches threaten to collapse into relativism (Pp. 1479-82) (a story about Dworkin’s theory, considered further on, might have been a useful coda to this discussion). It then explores flaws in these theoretical approaches identified by Charles Taylor, Alasdair MacIntyre and Stephen Perry (Pp. 1482-86), particularly utilizing the idea of the central case (or focal meaning in Finnis’s terms) as a means of describing both (i) the usual, normal, everyday, central instances of social practices and (ii) the non-standard, diminished, distorted, problematic, instances of those same practices. Pojanowski concludes by arguing that evaluative legal theorists should consider adopting a framework of ‘critical realism.’ (Pp. 1487-88.) Such a theory (which distinguishes the real from the observable, and hence too leads to relativism) is in broad terms ontological as opposed to empirical: a move that, for example, Finnis believes is regrettable for the ontological can only be secondary to empirical explanation. Again, the article would have further benefitted from a fuller consideration of these ideas.
But in fact, there is a shorter way to the article’s conclusions. For not only can we infer (1) legal conceptions and practices from (2) the attitudes and forms of characteristic behavior of the participants, but we can also see these attitudes and characteristic behaviors as deriving from (3) the basic needs and reasonable wants of the participants in society, and we gather these needs and wants from (4) a sound understanding of the demands and opportunities of sound practical reasoning. Teleology, which might form a fifth claim (5) that the ends of sound practical reasoning are in some way proper to the human being, plays no explanatory role in (1)-(4), which may strengthen the argument of the article, not because (5) is false (it is not), but because general attitudes to teleology among the positivist writers is so unfavorable that it would provide an occasion for those writers to dismiss the article’s argument on that basis alone.
This exceedingly brief survey of Pojanowski’s article leaves out much that is of value, and which could easily form a starting point for thinking about the theories it discusses, and the general debates in which it is involved. In one way, the article is a useful review of Dickson’s book; in another way, it goes beyond the potentially narrow debates to which the book gave rise, to touch lightly upon some of the most fundamental questions of human existence. Re-evaluating Legal Theory is an engaging and lively read. I would have liked to see some further development of the teleological argument in the article’s final section, a development I hope to see in the author’s future work. But in any case there is a multitude of ideas to be mulled over here.
There are some views in philosophy that have the reputation of being intuitive or widely held. One such view is legal positivism. The positivist maintains that what fundamentally determines the legality of rules is purely social facts—for example, people’s acceptance of the rule—and, moreover, that the moral wickedness of a rule does not necessarily diminish its legality. Positivism is standardly assumed to be more intuitive and widely accepted than competing, non-positivist views. But the basis for this assumption is rarely (if ever) made explicit. Until recently, there has been very little empirical work investigating general intuitions about law’s nature. Two recent studies, however, report results that challenge the conventional wisdom about convergence and controversy in jurisprudence.
In The Folk Concept of Law: Law is Intrinsically Moral, Brian Flanagan & Ivar Hannikainen test whether the “folk” concept of law is more compatible with positivism or non-positivism. They surveyed 390 college students, who had not yet taken any courses in legal philosophy, about their willingness to attribute legality to rules that, while socially accepted in a hypothetical jurisdiction, are morally wicked. In one of their experiments, F&H presented subjects with a society called “Figuria” where citizens are law-abiding and follow a constitution that “assigns unfettered legislative power to an elected assembly and omits any mention of individual rights.” The assembly, prompted by a belief in white supremacy, passes a statute banning interracial marriage. Subjects were asked to indicate their level of agreement with various statements regarding the statute’s legality, including “there is a sense in which [the statute] is clearly a law” and “ultimately, when you think about what it really means to be a law, you would have to say that [the statute] is not truly a law.” They report the following results:
In Figuria, rules are evidently not required to be just. Accordingly, for positivists, inclusivist and exclusivist alike, a grossly unjust statute such as S is intuitively no less a law than is a just one. However, participants revealed a different pattern of intuitions: overall, they tended to report that S is not a law in a deep sense (Mean = 4.50), and were divided even as to whether there is a sense in which S is a law at all (Mean = 4.16; see Appendix: Analysis 2). Thus, most participants rejected the positivist view that wickedness does not diminish a rule’s lawfulness.
Moreover, F&H found that the more subjects were inclined to view the statute as immoral, the less inclined they were to deem it law. This result persisted when F&H compared reactions to eight different scenarios alternatively involving wicked and morally permissible statutes. F&H conclude that since “a large majority (64.4%) rejected the view that, ultimately, law is just a matter of concrete social facts… the results seem to reverse the dialectic disadvantage hitherto standardly attributed to the natural law theorist… the cost … of … using a concept that is distinct from that used by the folk seems to be borne, instead, by the positivist” [citations omitted].
Questions might be raised about the experimental design (for example: did the subjects properly grasp that the legality of the statutes was to be assessed based on Figuria’s legal order rather than ours? Could the framing of the statements have biased the subjects to give socially desirable answers or answers they expected the researchers would favor?); but the results are still extremely interesting. The appeal of a classically non-positivist view (namely, that an “unjust ‘law’ is not law”) among undergraduates with no philosophical training provides a plausible measure of its intuitiveness. While I’d hesitate to infer, as F&H do, that the folk concept of law is more likely non-positivist than positivist, their results do seem to suggest that there is great variance in whether subjects find positivism or non-positivism more intuitive. Neither the positivist nor the non-positivist position appears decisively favored by ordinary, non-philosophical intuition—which is an important result in its own right.
F&H’s results are usefully paired with those of a quite different study by David Bourget and David Chalmers, Philosophers on Philosophy: The 2020 PhilPapers Survey. B&C sent an online survey to 7,685 professional philosophers in North America, Europe, and Australasia. Respondents were asked about their views on the central questions of philosophy, including the philosophy of law. One question asked respondents whether they “accept” or “lean towards” positivism or anti-positivism about law’s nature. Of the 621 respondents who neither skipped the question nor indicated that they were “insufficiently familiar with the issues,” 244 (39.5%) accepted or leaned towards legal positivism, 278 (45%) accepted or leaned towards legal non-positivism, and 99 (16%) accepted or leaned towards some other view. As above, I think what these results indicate is not that a non-positivist view of law is the more ‘intuitive’ or orthodox view among philosophers. Rather, the results reveal that there is considerable lack of convergence among experts on jurisprudential questions, and the idea that there is a “leading” view of law’s nature is suspect.
More generally, there are two important lessons to be drawn from the above studies taken together. The first concerns what we might call the “meta-problem of jurisprudence.” This is the problem of explaining why disagreement about the relationship between law and morality persists both at the level of ordinary, non-philosophical intuition and at the level of considered, philosophical judgment. I’m inclined to think that it must be some fact about the concept of law that explains why disagreement about law’s relationship to morality persists among the folk and philosophers alike, and, moreover, that an adequate theory of law needs to accommodate this fact.
A second lesson concerns how legal theorists should litigate their jurisprudential differences. Asserting that some view of the nature of law is more intuitive or “part of the consensus” can be used as a rhetorical hammer. In some cases, highly controversial claims about what the law requires have been defended based on jurisprudential assumptions that are, in turn, presented as the consensus view with little to no supporting evidence. The above studies suggest that we should all be wary of such appeals, which risk fostering a misimpression about the state of jurisprudence today, occluding its enduring controversies that stand in need of systematic explanation.
Cite as: Emad Atiq, Disagreement about Law and Morality: Empirical Results and the Meta-Problem of Jurisprudence, JOTWELL (January 20, 2021) (reviewing Brian Flanagan & Ivar Hannikainen, The Folk Concept of Law: Law is Intrinsically Moral, Australasian J. Phil. (2020) and David Bourget and David Chalmers, Philosophers on Philosophy: The 2020 PhilPapers Survey (Nov. 1, 2021)), https://juris.jotwell.com/disagreement-about-law-and-morality:-empirical-results-and-the-meta-problem-of-jurisprudence/.
In Democratic Law, Seana Valentine Shiffrin argues that law, in its full and proper form, is essentially democratic. Shiffrin analyzes the relationship between law and democracy in intimate detail, and explores implications of that relationship for some familiar doctrinal problems in the U.S. context. The book is based on Shiffrin’s Tanner Lectures, which she gave at Berkeley in 2017, and includes an introduction by the editor of the volume, Hannah Ginsborg—which provides a beautiful orientation to the book—as well as lively and incisive commentaries from Niko Kolodny, Richard R.W. Brooks, and Anna Stilz, and a vigorous reply to them from Shiffrin.
In the first of two Parts, Shiffrin argues that each of us has a duty to recognize one another’s equal moral status and to express this recognition to one another. Her argument here builds on Rawls’s account of our fundamental moral equality as persons. For Shiffrin, we are both entitled and obligated to communicate our recognition of one another’s equality—not only discursively (since, as Brooks elaborates in his commentary, talk is cheap) but also through our commitments and actions.
We can’t possibly fulfill this communicative duty through individual interpersonal interactions, however, so we need some help. This is where law steps in. Part of the function of law, claims Shiffrin, is “to execute our collective moral duties through collective, communicative means.” (P. 19.) Because it is only through democratic processes that law can serve the moral purpose of collective communication that Shiffrin ascribes to it, “a full and proper legal system must be democratic.” (P. 19.) And this is how we get the integral relationship between law and democracy.
For Shiffrin, “democracy” is “a political system that treats all its members with equal concern, regards their lives as of equal importance, and treats all competent members of the community [as] the equal and exclusive co-authors of and co-contributors to the system.” (P. 20.) Shiffrin sidelines the familiar mechanisms that are typically emphasized in accounts of democracy—elections, referenda, and the legislative process—and instead focuses on the often-overlooked democratic aspects of other legal practices and institutions.
Particularly intriguing is her analysis of adjudication as democratic in deep and unique ways. As litigants and potential litigants, explains Shiffrin, “we each have participatory powers in the construction of law and the mode and direction of its implementation.” (P. 52.) And “[t]hose participatory powers allow the state’s expressive actions to be reasonably attributable to its citizens.” (Pp. 52-53.) In the process of adjudication, judges channel the joint commitments of the community, and through judicial opinions they communicate and solidify those commitments as binding law.
This potential that Shiffrin recognizes in litigation resonates with accounts of the adjudicative process that focus on the active participation of litigants, not only in the sense of presenting the best case for their position and thereby affecting the outcome of their dispute, but also and perhaps even more importantly in influencing the publicly articulated reasons supporting that outcome, which judges present in the form of judicial opinions.
In the second Part of Democratic Law, Shiffrin explores some specific implications of her view for both common law and constitutional jurisprudence. Her examples “highlight the judiciary’s special role in a system of democratic law,” a role that Shiffrin insists “is neither secondary nor subordinate to the legislature’s.” (P. 63.)
I especially appreciated Shiffrin’s analysis of Northwest v. Ginsberg (2014), a case in which the Supreme Court determined that a federal statute (the Airline Deregulation Act) preempted the state common law doctrine of good faith in contracting. (P. 70.) Shiffrin faults the Court for failing to recognize a material difference between state statutory law and common law for the purposes of preemption. For Shiffrin, the common law is distinctively well situated to facilitate the development of democratic law. This is because the communication of joint moral commitments is an essential feature of democratic law, and state judicial decisions serve this communicative function by publicly articulating legal standards that derive from the community’s morality. Further, Shiffrin contends, one need not possess social or political power to affect the law through the adjudicative process; this form of lawmaking can thus help make up for democratic deficiencies in the legislative process. (P. 84.)
Further still, Shiffrin views the common law as more committed to, and capable of, trans-substantive coherence than statutory law, since rules and doctrines are interpreted according to underlying and topic-independent moral principles. In this way, says Shiffrin, “common law reasoning places greater pressure on courts to think comprehensively about how a concept’s interpretation will fit into the legal system as a whole,” and therefore has the potential “to generate greater trans-substantive unity than the more focused agenda enacted by statutes.” (P. 86.)
Ever since the Supreme Court issued its momentous decision in Erie Railroad Company v. Tompkins in 1938, the common law in the U.S. has been largely the purview of the states, which means that the common law’s democratic function is realized, to the extent it is, at the state level. This is fitting, says Shiffrin, because “[s]ome democratic legal aims are better realized when the community is . . . small enough to generate a distinctive camaraderie between citizens.” (P. 67.) On these grounds, Shiffrin suggests that state common law has a special claim to deference and protection, a claim that the Northwest Court failed to recognize. Shiffrin thus takes issue with the prevailing federal preemption jurisprudence, foreclosing as it does important “opportunities for developing distinctive communities that elicit strong affiliations.” (P. 67.)
These observations bring Shiffrin to a fascinating discussion of federal-state conflict of laws. Part of the purpose of the Erie doctrine is to protect state sovereignty by enabling states to develop their own distinctive bodies of common law. For Shiffrin, this level of control is important because state common law reflects and embodies “local social-moral culture” in a way that the alternatives—federal common law or a deregulated lawless zone (left for the market to sort out)—do not. (P. 68.) An expansive preemption jurisprudence accordingly restricts the scope and development of state case law and undermines our ability to jointly and publicly communicate our commitments through judicial decisions that contribute to our law.
As Shiffrin puts it, the preemption jurisprudence exemplified in the Northwest decision creates regrettable holes “in the moral fabric woven by the state common law.” (P. 87.) Here Shiffrin’s view echoes Ronald Dworkin’s account of law as integrity, but the former strikes me as novel in its insistence on the role of citizens as co-authors in the creation of their law (compared to Dworkin’s emphasis on the role of judges as co-authors). For both Shiffrin and Dworkin, then, adjudication is a constructive enterprise, aimed at justification and coherence. But, in foregrounding the agency and voice of citizens in the process, Shiffrin alone can rightfully claim the descriptor of democratic for her conception of law. (P. 19.)
Shiffrin’s case for a robust Erie doctrine is not motivated by familiar federalism concerns about protecting state rights and interests. But she does seem to take for granted that the state is the proper (or at least an appropriate) unit or level for distinct “local social-moral culture[s]” to emerge and coalesce. We might wonder about this. Indeed, Stilz aptly questions the importance of a state’s “distinctive local identity” in her commentary, focusing on Shiffrin’s analysis of constitutional balancing—which, like her treatment of common law and preemption, appeals to the value of unique local identity and culture at the state level. (P. 176.) I also wonder whether Shiffrin over-estimates the egalitarian potential of the litigation that produces the common law, since better off individuals are both more likely to access courts and more likely to win.
Shiffrin’s conception of law would seem to have interesting and novel implications for interpretive methodology. Although she does not explore these implications in detail in Democratic Law, she does make some observations in this direction. It should come as no surprise that Shiffrin emphatically rejects “an originalist approach to [constitutional] interpretation,” which she characterizes as “the enemy of democratic law.” (P. 206.) In her vision of democratic law, citizens are engaged, continually, in the collaborative construction of law, which involves both creating new law to meet new circumstances and also engaging in “active forms of interpretation and selective curation of the achievements of past generations.” (P. 205.) Whereas Dworkin has been criticized for demanding too much of judges, some might wonder whether ordinary citizens are up to the challenge that Shiffrin envisions for them.
I also wonder, along with Kolodny, who raises the question in his commentary, whether we can or should reasonably perceive one another’s compliance with the law as an expression of mutual equality when there are other salient reasons to comply, and especially where penalties threaten the non-compliant. As Shiffrin responds, however, people often comply with the law even when infractions have no legal consequences. And legal compliance does seem to be motivated, often and at least in part, not by fear of sanctions but rather by a felt moral obligation to obey. Consider mask mandates during the pandemic. It really does seem that people who refuse to comply—often wearing masks under their noses or even under their chins—are expressly rejecting equal regard for co-citizens in favor of personal comfort or perhaps (if we’re being generous) a prioritization of the value of individual liberty. One of the reasons why this behavior feels like a personal moral affront is that the open refusal to wear masks in public spaces, when the law requires it, expresses a disregard for our mutual obligations to one another as equals. In contrast, when people comply with mask mandates (which, as far as I can tell, are rarely enforced in any meaningful way), they communicate a commitment to equality, expressing without the need for words that we are all in this together, as equal members of the legal community.
Democratic Law is pitched at a relatively abstract level, but central claims are elucidated with vivid and memorable analogies to interpersonal interactions and relationships—for example, to academic co-authorship, and to duties and expectations of neighbors and members of community associations. In his commentary, Brooks presents an especially relatable personal anecdote of an interaction he had with an airline agent who failed to acknowledge his legal entitlements as an airline customer, even while the agent conferred the material benefits of those entitlements on him. (Pp. 156-60.) Providing a palpable illustration of the normative difference that openly communicating legal status can make, even when it would make no difference to the material outcome of an exchange, Brooks’ anecdote brings to life Shiffrin’s powerful claim that the “[p]ublic articulation [of a legal duty] forges a personal connection to the duty in a way that silent acknowledgment does not, reinforcing the duty’s role as an organizing principle for the speaker.” (P. 49.)
Shiffrin’s theory of law and democracy is an ideal one. Her aim is admirably and refreshingly “constructive,” as opposed to “diagnostic or critical.” (P. 18.) But it does throw into stark and disturbing relief the deficiencies of the version of democratic law that we have in the U.S. today, which in some aspects and instances approaches Shiffrin’s ideal but in many others falls far short. Well aware and at times overtly self-conscious about the distance between her vision of democratic law and the actual state of law and democracy in the U.S. today, Shiffrin observes that “the United States is a deeply flawed and endangered exemplar of an aspiring democratic legal system,” and that we do not currently “stand in the right relations to one another.” (Pp. 62, 182.) Her view of democratic law is accordingly aspirational and inspirational. It is a view that is well worth taking seriously, even if we can only ever hope to approximate the system that Shiffrin encourages and enables us to contemplate. As Ginsborg observes in her introduction, “[i]t is precisely at a time when democracy is under threat that an account of this kind is needed.” (P. 14.)
Rob Mullins, Presupposing Legal Authority,
__ Oxford J. Legal Stud. __
(forthcoming), available at SSRN.
In Essays on Bentham, Hart noted the importance of what he termed “authoritative legal reasons” to legal theory. In this idea–of reasons that apply to us independently of their content and in that special modality of foreclosing our normal deliberation–lies the “embryonic form” of legality. More simply put: law necessarily operates in the register of authority. This insight represents a foundational commitment held in common between various strands of legal philosophy, in part because of what Brian Bix has identified as a “hermeneutic turn”: theorists accept that an understanding of law must take account of the distinctive way in which it engages human agency and rational consciousness. Authority, as a practical concept, promises such an understanding of law.
The idea of law as a matter of authority plays an especially central role in positivist legal theory, in no small part due to Joseph Raz’s influential work on the topic. Raz and his many followers argue that law necessarily claims moral authority. We can see this, it is generally explained, in the deontic language used by legal officials (especially judges). And such claims to authority, Raz insisted, should be understood in moral terms. Much of recent positivist legal theory grapples with this final thesis: how can legal claims to authority be understood in moral terms, and what would that mean for the separation thesis? Rather less attention has been devoted to the first part: that law necessarily claims authority. In his forthcoming article, Presupposing Legal Authority, Rob Mullins calls this the “claim thesis.” He offers a long-overdue, thorough, and incisive scrutiny of the thesis. In doing this, he also invites us to revisit our understanding of the authority of law.
Mullins agrees that the use of deontic language by officials is something to be taken seriously in legal theory. However, he persuasively demonstrates that moving from this observation–that legal officials use deontic language–towards a thesis about law’s claim to authority is no simple matter. He does so by exploring three possible ways of making this move. The first is that of moralized semantics: the position that words like “ought,” “right,” “obligation,” etc., have univocal meaning across contexts. He shows that there is nothing in the standard semantics of deontic language which compels this conclusion. A sentence like “legally, J ought to stop at the red light” could mean “legally, J has a moral obligation to stop at the red light” (as Shapiro seems to argue), but it need not. Standard deontic semantics would simply interpret the sentence to mean that according to the ordering of possible worlds provided by law, the worlds closest to the ideal modal base are worlds where J stops at the red light. To insist on a moralized semantics requires an independent argument, one that has not yet been made.
Mullins then turns to another option: perhaps legal officials indicate their moral endorsement of deontic legal statements by making these from a committed, internal, point of view. But, as he points out, this could be the case without necessarily entailing that law claims authority over the addressees of these statements. Legal officials’ statements could be understood, without contradiction, as expressing something like this: “I have no authority to tell you, but you have a legal obligation to do X, and I think you really ought to do it”.
In the final, and in my view most valuable, part of his article, Mullins turns to a more promising route: one that follows closely the thoughts of Hart in Essays in Bentham. He starts, as Hart does, with speech acts like commands and orders. The felicity conditions of speech acts like commands include, amongst other things, that those who issue commands have authority over the persons they address. Those who perform these speech acts, he shows, take for granted–or presuppose–their authority over those they address. In issuing a command, one does not necessarily claim authority or imply it, but a successful command presupposes authority. Such presupposition is pragmatic: it reflects common ground between the issuer of a command and her addressee. Mullins carefully shows the affinity between presuppositions and felicity conditions. Commands are the kinds of things that only make sense against background presuppositions about authority.
Mullins ends up rather close to where he started, but with an important if nuanced distinction. He shows that insofar as legal officials perform authoritative speech acts, it is necessary that they presuppose authority over their addressees. He also shows, however, that this is not sufficient to establish that law makes a claim to legitimate moral authority. It is in the space between these two arguments that I see his analysis opening opportunities for fruitful further inquiry.
One might want to keep these two notions closely connected as Raz would, but there is also space for a more Hartian approach, relying on what is accepted in practice rather than on moral understandings of that practice. Mullins does note a problem with this latter approach, however: officials who presuppose authority over subjects without actually having moral authority are acting infelicitously. They are not failing in their assertion of authority, but that assertion is in some way deficient. This, in turn, places a burden on the addressees of such claims. Legal subjects can either go along with claims to authority, accommodating the presupposition of authority, or take on the burden of challenging it. Mullins thinks this shows the communicative value of protest and civil unrest. It does. But I also think it provides insight into an important and overlooked aspect of our understanding of legal authority by bringing the reactions and understandings of those subject to authority, addressed by legal officials, into the fold.
Gerald J. Postema, Constitutional Norms—Erosion, Sabotage and Response
, __ Ratio Juris
__ (forthcoming, 2021), available at SSRN
How should we respond to the different challenges that threaten democracy and the rule of law today? To talk of we here, to state that a response is our response, is to understand that while “[t]he claim of an inclusive ‘ours’ may look like a pious fiction, . . . well-functioning democratic polities work to make it credible.” (P. 4.) This is part of what Gerald Postema takes a healthy constitutional democracy to be, in his discussion on Constitutional Norms—Erosion, Sabotage and Response. This is not rhetoric, but part of the argument itself: the very acknowledgment of new challenges to democracy and the rule of law as challenges is something that depends on what we what we take democracy and the rule of law to mean. After all, “unlike their predecessors, contemporary aspiring authoritarians pay striking attention to the forms of law.” (P. 1.) To be sure, strictly formal conceptions of democracy and legality do not necessarily entail approval of regimes that take the forms of law as mere tools for political power; but since our real-world classifications and labels ultimately hinge on the way we interpret these concepts, these thin conceptions can easily lead us to conclude that “illiberal democracies” are democracies nonetheless; that while we may dislike it, the striking attention of contemporary aspiring authoritarians to the forms of law suffice to show that the rule of law is morally neutral.
Professor Postema does not take the rule of law to be just a framework of general, public norms, nor does he take democracy to be a mode of delegating power to whoever wins more votes. His account of democracy is that of a constitution — a set of institutions by which power is constituted, exercised, constrained, and tempered, as Martin Krygier would put it — to be valued — and recognised as such — for its respect for deeper principles of political morality (not just instrumentally) and for the environment it upholds: an environment of reciprocity between citizens as co-members of a polity. In that sense, democracy properly so called is not only government through law; it is also government subject to law’s rule. This is why Professor Postema’s account of the rule of law is directly related. While the ideals of the rule of law and democracy are “conceptually distinct”, they are “functionally intertwined” — democracy so defined depends on the rule of law, on a conception of the rule of law by which it is, more than government through a system of rules derived from a rule of recognition, an ideal that promises “protection and recourse against the arbitrary exercise of power through the distinct instrumentalities of the law.” (P. 5.)
These conceptions show that the realm of constitutional norms is larger than formal constitutions and their formal norms that can easily be subverted. A robust, well-functioning democracy depends on a combination of commitment, conventions, unwritten norms and informal practices that together constitute and are constituted by a democratic ethos. Formal, written rules are underwritten by deeper commitments — they are the surface of a whole array of implicit norms and conventions that are part of a normative practice. These norms, because of their social nature, are discursive — “[n]orm responsive conduct is not merely applauded or resisted; it is assessed, challenged, criticized or justified” (P. 13) — and they entail mutual accountability: for they can only survive as norms “if the members of the norm community — violators, critics and those who observe their interaction — all recognize the authority of fellow members to hold each other accountable.” (P. 14.)
Because formal institutions of law and democracy are only the surface of a robust democratic polity, and because they are weaker without these implicit norms and conventions, Professor Postema suggests we need to look more carefully into norm departures. He identifies three types of deliberate departures: there are norms infringers — those who depart from the norm but do not challenge it, appealing instead to another norm as overriding — norm entrepreneurs — those who challenge the norm and seek to reform or replace it — and norm saboteurs — those who either break the norms or try to game them.
Norm saboteurs obviously represent the most difficult, threatening challenge. “How is a defender of democratic institutions to respond to the saboteur’s challenge?” (P. 19.) Professor Postema recognises that it is tempting to respond in the same spirit, to play “reactive hardball” — after all, as it usually goes, “they did it first”. Tempting as it may be, is it really fruitful to enter a game that nobody can win? Rather than asking who started, who attempted to game the system first, the more appropriate inquiry should be about why these norms actually matter. This is not naïveté: a hardball response may even seem to make sense at first, but it will only contribute to democratic degradation in the long term. Tit-for-tat hardball is not a good strategy even as strategy for someone who actually endorses the constitution of democracy. “The guiding star must be fidelity to underlying democratic and rule-of-law values, especially the commitment to constituting and nurturing a community of equals.” (P. 19.)
To illustrate, Professor Postema proposes a case study: the debates over court reform as a means to restore American democracy after the defeat of a former president who definitely had no respect for democratic and rule-of-law principles under the conceptions here articulated.
Throughout the case study, Professor Postema discusses some proposals — particularly the court packing suggestion, along with its arguments (that range from the claim that this would be merely unpacking to the claim that “they started!”) — and underscores that to focus on (immediate) outcomes only, and not on the integrity of the Court (and the system itself), might lead to retaliation and might, even more than that, damage the very idea of democracy — democracy understood as a community of equals, equally accountable to the same array of norms that constitute government under law’s rule.
To be sure, Professor Postema joins in the debates over a principled, more nuanced proposal — the “Supreme Court Lottery” scheme, advanced by Ganesh Sitaraman and Daniel Epps, under which the SCOTUS would sit in panels of nine justices selected at random among the 179 active circuit judges plus the nine current justices. Professor Postema claims that this proposal could be combined with other equally constitutional proposals: he suggests, for instance, that legislation could be passed in order to require (1) full treatment for most of the cases that come before the Court and (2) full public reasons for each decision. But the idea is this: norm violations should be responded by those who seek to uphold these norms not with more violations, “but with a reform that obviates the norm.” (P. 26.)
The more specific debate on the American case is extremely important, surely, but I believe the underlying principles and ideas advanced by the author in his suggestions are the most fundamental lesson. There is a clear connection here with Professor Postema’s whole work overall: a connection with fidelity as basis to the rule of law properly so-called, to law’s rule — rule of those who rule with law and in its name. In highlighting both the nature and the importance of the constitutional norms informing a somewhat thick conception of democracy, Professor Postema goes well beyond jurisdiction-specific suggestions of Court reform: he also highlights at the same time how and why the way we respond to norm sabotage cannot lose sight of these very norms — if this “we” is indeed to make any sense.
The language of private law is the language of rights, duties, and obligations. There is a long tradition of thought that interprets that language as the reflection of private law’s foundations, and that therefore reads judicial and legal discourse about private rights as the reflection of deeper, pre-legal rights that private law institutions recognize and enforce. This leap from private law discourse to private law’s foundations must be somehow explained. There must be some reason that explains, in other words, the connection between the rights and obligations that private lawyers talk about and our moral rights and obligations. One strategy goes this way: in the state of nature, we have certain rights that we are free to enforce against others. When we enter civil society, we can no longer enforce those rights at will, because the state claims the monopoly of the legitimate use of coercion. As a consequence, a morally decent state has the obligation to give us, as private agents, a substitutive mechanism to seek redress for rights violations in conditions of civil society.
In a careful and powerful article, On the Moral Necessity of Tort Law: The Fairness Argument, Sandy Steel calls this idea the “fairness argument.” In Steel’s reconstruction, the fairness argument basically claims that, because (i) citizens have been deprived of certain pre-legal moral enforcement rights by the state; (ii) citizens are morally entitled to a substitute for those rights from the state; and (iii) the morally required substitute for those rights is tort law, the state has a pro tanto duty to establish tort law whenever direct personal enforcement of citizens’ rights has been prohibited. (P. 195.) Steel does a great job of reconstructing the argument and offering its best version, but ultimately he believes—on the basis of four general objections—that the fairness argument cannot justify anything more than a very minimal tort law.
The four general objections can be summarized as follows. First, the argument has limited application: many citizens would not have been able to enforce their rights in the state of nature. Second, as Kantian theorists have traditionally stressed, enforcement of all (or at least most) of our private rights in the state of nature might not be morally legitimate. Third, specific enforcement of our primary rights through injunctive relief does not seem to fit well the role of substitution of our pre-legal moral enforcement rights. Fourth, the argument does not rule out alternative substitutive arrangements like compensation schemes. (P. 218.)
The intuitive notion underlying the fairness argument is that, in a state of nature, we would be at liberty to enforce our moral rights, but the transit to civil society deprives us of that liberty. (P. 200 n.2.) This intuitive notion is reasonable as far as it goes but, as Steel argues, it only establishes that the state must provide something in return for the deprivation of our enforcement rights—not that it must provide something that looks like the actual institution of tort law. (P. 205.) The strongest version of the fairness argument, as Steel cogently argues, does say a bit more than this. However, even this is not sufficient to justify the tort law systems we actually observe. At most, the fairness argument justifies a very limited and modest form of tort law.
The upshot of all of this, as Steel writes, is that “if there is a moral duty upon legal systems to provide a more than minimal tort law, and possibly any tort law at all, its source lies beyond the confines of the fairness argument.” (P. 218.)
I think Steel’s criticism is mostly right, or at least in need of consideration and, potentially, response by those who have endorsed versions of the fairness argument. At a more general level, the paper is an important and thoughtful contribution, based on a charitable and careful reconstruction and critique of the fairness argument. My only doubt is the following. I think the way in which Steel frames the upshot of his critique is somewhat perplexing, and seems to accept the plausibility of an implicit premise—the idea that for tort law to be justified it ought to be morally necessary, that it ought to be a moral duty for states to establish it—that we should perhaps do without. Why must we assume that the role of the tort theorist is to find a moral duty for states to establish a system of tort law or the grounds for the moral necessity of tort law? Why must we assume that there must be some other source (once the fairness argument has been discarded) for this alleged duty or necessity? In this sense, Steel has convincingly shown that the fairness argument is not a good foundation for the political morality of the law of torts.
But perhaps Steel’s critique carries more radical implications. Perhaps, trying to find the foundations of tort law in an alleged duty or moral necessity—incumbent on the state or the political community—to establish tort law is a dubious enterprise. We might, in other words, want to throw the proverbial baby out with the bathwater and accept that tort law’s justification, if any, might be weaker: perhaps, tort law is just one of the many potential conventions and artifacts we could have designed, as human beings, to safeguard some important human interests. This would mean abandoning the search for a source for a duty to establish tort law and its supposed moral necessity, whether within or beyond the confines of the fairness argument. While my intuitions might differ in this aspect from Steel’s, his article is an important and astute contribution to our understanding of the moral and political foundations of tort law.