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Chevron’s Real Impact

Kent Barnett and Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017).

Empirical studies are often regarded as having less cachet than theory, and the circuit courts certainly have less cachet than the Supreme Court, so an empirical study of the circuit courts might be expected to rank somewhat low in the academic pecking order. But this article belongs at the top. A survey and analysis of all the federal Court of Appeals decisions from 2003 to 2013 that refer to the Chevron doctrine – some 2,272 of them – it reveals the actual operation and significance of this most famous of modern administrative law decisions. The Supreme Court invokes Chevron fairly regularly, of course, but often for the purpose of modifying it. In any case, Supreme Court decisions tend to be so politically charged that they frequently seem sui generis, a characteristic that provided the Court itself, in King v. Burwell, with still one more basis for modifying Chevron doctrine. It is in the circuit courts that the quotidian work of administrative law is carried out, and that is the pudding where the proof of Chevron‘s real impact can be found.

The most basic conclusion that Professors Barnett and Walker reach is that Chevron makes a difference. Contrary to prior empirical studies of Chevron‘s impact in the Supreme Court (“Chevron Supreme,” as the authors call it, since wordplay with the decision’s name is difficult to resist), they find that the win rate for the agencies in a circuit court (“Chevron Regular”) is substantially higher when the court invokes the Chevron doctrine. At 77%, it is fully 20% higher than the win rate when the court invokes Skidmore. To be sure, this is hardly a surprising conclusion, and thus lacks the counter-intuitive allure that some of the best empirical studies offer. But it is a conclusion reached only after a massive amount of careful effort and it represents an important contribution to our knowledge about Chevron’s real impact.

Moreover, Professors Barnett and Walker go beyond this basic conclusion to ask a number of important and intriguing questions about the pattern of the decisions. Distinguishing between cases decided at Chevron step one and step two, they find that when the case is decided at step one, the agency wins at a much lower rate than at step two, but nonetheless in a respectable 39% of the decisions, essentially the same as its win rate when the court employs a de novo standard. This suggests, although it does not prove, that Chevron‘s two-step formulation is more coherent and more principled that its critics claim. Counting against the coherence of Chevron, however (and the authors are admirably neutral in reaching and reporting their conclusions) is the differential treatment of the doctrine by the circuit courts, something that only a study of this sort could reveal. In cases where the court invoked Chevron, the agency won 83% of the time in the First Circuit, but only 66% of the time in the Ninth, a startling differential. This variance might be the result of applying Chevron at different rates, and here too there are dramatic differences, from 89% of the cases in the D.C. Circuit where the doctrine was at issue to 61% in the Sixth Circuit. It might be imagined, by proponents of the doctrine, that these two variables would balance out, but that is not the case. Constructing a composite score of three different measurements (win rates for agencies, frequency with which Chevron is applied, and win rate when Chevron is applied), the authors found that the First Circuit scored 8.38 on a ten-point scale while the Ninth Circuit scored 6.85.

There are a number of other intriguing distinctions in the pattern of decisions that Professors Barnett and Walker are able to derive from their data. When the composite score for subject matter and particular agencies are computed, equally dramatic variations appear. The score, and thus the impact of the Chevron doctrine, is highest in the field of telecommunications (8.67), and also high in education and entitlement programs (8.15 and 8.14). It is lowest for civil rights (5.99) and similarly low in housing and prison cases (6.04 and 6.64). Agencies that receive high levels of deference include the ICC (9.38), the FCC (8.67) and the NLRB (8.26); those that fare worst are the EEOC (5.08), HUD (5.19), the FTC (6.74) and the Bureau of Prisons (6.79). It is difficult to determine whether these variations reveal that the Chevron doctrine operates in a coherent fashion; that would depend on the wording of the authorizing statutes and perhaps that level of expertise that the authorization demands. This study cannot answer those questions, as the authors readily acknowledge, but it provides a framework by which the answers can be explored in future work.

Chevron, the insignia of modern administrative law, has fueled reconsideration of the relationship of Congress, the executive and the judiciary. The actual impact of the decision, however, has often been the subject of crude generalizations. By distilling the results of the circuit court decisions that invoke this doctrine, Professors Barnett and Walker provide a more refined account of the doctrine’s development, and have thus performed a valuable service to the entire field of administrative law.

Cite as: Edward Rubin, Chevron’s Real Impact, JOTWELL (November 15, 2017) (reviewing Kent Barnett and Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017)), https://juris.jotwell.com/chevrons-real-impact/.

Law as a Social Artifact

Luka Burazin, Can There be an Artifact Theory of Law?, 29 Ratio Juris 385 (2016), available at SSRN.

It seems clear that, on any plausible general theory of law, the institutions and content of law are manufactured by human beings for the purpose of regulating human behavior and are, thus, properly understood as social artifacts. Positivism, of course, is committed to the idea that the existence and content of law owes entirely to human social activity. But it is not unreasonable to think that law is an artifact on even the strongest natural law view. According to this view, the law consists of those properly enacted norms that conform to objective moral requirements. Although there are, thus, necessary moral constraints on what counts as law, it nonetheless seems reasonable to characterize law, on this view, as an artifact. The construction and operation of more familiar concrete artifacts, such as clocks, are constrained by laws of physics yet are paradigmatically artifacts; the situation seems not much different, from the standpoint of legal theory, with socially constructed law that is constrained by moral norms.

Despite its conspicuous theoretical significance, the artifactual nature of law has not, until comparatively recently, received a great deal of attention from legal theorists. In Can There be an Artifact Theory of Law, Luka Burazin sets out to remedy this omission by giving a brief outline of an artifact theory of law. Burazin attempts to identify the implications of the claim that law is an artifact, as well as sketch what an adequate “artifact theory of law” might look like. Burazin’s analysis in this excellent paper is concerned only with law qua legal system (as opposed to law qua norm) presumably because the normative output of an institutional artifact, like a legal system, must also be artifacts.

On Burazin’s view, the nature of social artifacts, unlike the nature of natural occurring objects, is determined by the intentional states of certain persons who can be thought of as “authors,” which also determine the content of the corresponding concepts. Burazin’s insightful analysis incorporates Risto Hilpinen’s explication of the concept of an artifact, which Hilpinen defines as “an object that has been intentionally made or produced for a certain purpose.”1

Accordingly, an artifact must, on this definition, have some kind of characteristic use. Insofar as a legal system is an artifact, and insofar as every artifact has a purpose that depends on human intentional states, every legal system has a purpose that depends on the collective intentional states of those who create and sustain its existence through their lawmaking and adjudicative activities.

A legal system is, according to Burazin’s artifact theory of law, “Created by authors who have a particular intention to create the institutional artifact ‘legal system,’ based on the author’s substantive and substantively correct concept of what the legal system is, under the condition that this intention be largely successfully realized.” (P. 397.) As an abstract institutional object, the existence of a legal system requires the collective recognition of some social group. On a positivism view, the “authors” of the legal system are officials who “recognize” the legal system by practicing the rule of recognition. But citizens also play a role, albeit less direct, in providing the requisite collective recognition: what is required of citizens, on a Hartian view, is that their behavior generally conforms to the rules validated by the conventional rule of recognition.

Here it is important to note that, on an artifact theory of law, the set of “authors” of the legal system will change over time as one set of officials and citizens are replaced by another set in a stable legal system. Unlike a light bulb, which was invented by one determinate author, a legal system is sustained by a set of individuals which changes over time; the sustained existence of a legal system is thus determined by the same factors that determine its creation. Indeed, one might, without much distortion, think of the existence of a legal system as sustained over time by exactly the same activities that are thought to create it. Creation and sustainment are two sides of the same coin, on an artifact theory of law.

One might think that legal systems can arise without being intentionally created, but Burazin correctly rejects this possibility: “Since legal systems are undoubtedly highly complex institutional artifacts, it seems strange to claim that such complex entities could emerge (wholly) unintentionally, as is sometimes the case with ordinary artifacts (e.g., a fortuitously created medicine).” (P. 399.)

It is worth noting that Burazin’s essay provides just a sketch of an artifact theory that would need to be fleshed out in considerably more detail to be fully articulated, but the importance of this project should be quite clear. If law is, by nature, an artifact, then a conceptual theory of law cannot be successful without including the appropriate elements of a plausible theory of artifacts. Just as the nature of a gun cannot be fully explained without explicitly recognizing that it is an artifact, the nature of a legal system cannot be fully explained without explicitly recognizing that it is an artifact. The explication of a legal system’s artifactuality will, of course, be more complicated and abstract than the explication of a gun’s artifactuality because a legal system, unlike a gun, is an abstract institutional object that persists over time through the same activities that explain its coming into existence in the first place.

  1. Risto Hilpinen, “Artifacts,” Stanford Encyclopedia of Philosophy (Winter edn., 2011). []
Cite as: Kenneth Himma, Law as a Social Artifact, JOTWELL (October 6, 2017) (reviewing Luka Burazin, Can There be an Artifact Theory of Law?, 29 Ratio Juris 385 (2016), available at SSRN), https://juris.jotwell.com/law-as-a-social-artifact/.

The Ends of Jurisprudence: A Guide to the Perplexed

David Plunkett and Scott Shapiro, Law, Morality, and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry, 127 Ethics (forthcoming, 2017), available at SSRN.

This article is a guide to the perplexed about general jurisprudence. Many people assume that general jurisprudence is either entirely devoted to answering the question, “What is the nature of law?” or at least centered on that question. That is, they think that general jurisprudence is devoted to, or centered on, a metaphysical question. The most famous recent debate about this metaphysical question is the Hart-Dworkin debate, which many legal theorists find frustrating, sterile, or deeply confused (at least in its presuppositions). As a consequence, there is a tendency among some to abandon this debate, turning to matters they regard as outside of general jurisprudence. Plunkett and Shapiro provide a more capacious understanding of the enterprise, according to which general jurisprudence, which concerns law in general, is not limited to, and may not be centered on, metaphysics. From their elegant, precise, clear and compelling account, it follows that those who think they should abandon general jurisprudence may not have reason to do so, and those who think they are abandoning general jurisprudence might not be doing so. For example, theorists who (a) think it is a universal truth about law that it has legislation and (b) give an account of the meaning of statutes are actually engaged in general jurisprudence.

Plunkett and Shapiro’s thesis is that general jurisprudence comprises investigation in a number of philosophical fields – metaphysics, of course, but also philosophy of mind, philosophy of language, and epistemology. These investigations are unified by a comprehensive explanatory project. That project is to show how, in the words of the authors, universal “legal thought, talk, and reality fit into [the wider] reality.” A theorist may enter this project at any point, may do only some of this work, but it remains true that this theorist is engaged in general jurisprudence.

The field of ethics is conspicuously absent from their list, though the authors appreciate that inquiries in this field are relevant for certain positions adopted within general jurisprudence.

Initially, I underestimated the importance and implications of their thesis. The reader should not make the same mistake. Plunkett and Shapiro’s picture of general jurisprudence has substantive implications for some familiar meta-jurisprudential positions. I will describe two of these implications: one for Hershovitz, one for Dworkin.

Hershovitz is one who thinks the Hart-Dworkin debate is sterile and deeply confused.1 As Plunkett and Shapiro point out, Hershovitz is arguing against specific assumptions underlying this debate, rather than the enterprise of general jurisprudence itself. Indeed, he is engaging in this enterprise, proffering a theory of what certain legal talk is about, and a theory about how legal obligations fit into reality. What is worth noting is that Hershovitz’s recommendation that general jurisprudence should orient itself to exploring the moral consequences of our legal practices doesn’t exclude investigations into metaphysics, epistemology, and the rest. Indeed, they become relevant and perhaps pressing. His arguments presuppose that there is a domain of legal practices. One can ask interesting metaphysical questions about legal practices that become questions in general jurisprudence, given Hershovitz’s suggestion that legal obligations are moral obligations generated by legal practices. One can also raise jurisprudential questions in philosophy of mind and epistemology about the content of legal practices and the conditions of our knowledge of them.

Dworkin famously denied that there is a sharp distinction between engaging in general jurisprudence and in substantive legal argument (or political argument).2 This denial turns out to be a mistake on Plunkett and Shapiro’s characterization of general jurisprudence. Since general jurisprudence has a different aim and different “success conditions” than the other projects, it is a distinct inquiry (albeit one that, perhaps, might turn out to be a necessary prolegomena to the other projects).

Plunkett and Shapiro offer a corrective of other mistakes commonly made about general jurisprudence. For example, it is often assumed that the Hart-Dworkin debate, or more broadly, the positivism-antipositivism debate, is about the nature of law. Plunkett and Shapiro challenge this characterization; the debate at its core is about what grounds law, which is a different metaphysical question. (This grounding relation is alleged to be a constitutive relation between legal facts and more metaphysically basic facts, in virtue of which the legal facts obtain.)

There is much more. Plunkett and Shapiro situate some current philosophical accounts (Raz’s, metalegal expressivism) in helpful ways and sketch some broad philosophical strategies, in the hope that this will facilitate progress in general jurisprudence. Anyone engaged in that enterprise will only benefit from the discussion and categorizations offered.

The lesson in all of this is that any reports of the death of general jurisprudence are, to paraphrase Mark Twain, greatly exaggerated.

  1. Scott Hershovitz, The End of Jurisprudence, 124 Yale L.J. 1160 (2015). See the jot on this article by Michael Green, The New Eliminativism, JOTWELL (January 18, 2016), https://juris.jotwell.com/the-new-eliminativism. []
  2. Ronald Dworkin, Law’s Empire (1986). See also Ronald Dworkin, Justice for Hedgehogs (2011). []
Cite as: Barbara Levenbook, The Ends of Jurisprudence: A Guide to the Perplexed, JOTWELL (September 8, 2017) (reviewing David Plunkett and Scott Shapiro, Law, Morality, and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry, 127 Ethics (forthcoming, 2017), available at SSRN), https://juris.jotwell.com/the-ends-of-jurisprudence-a-guide-to-the-perplexed/.

Faulty Knowledge About Law

Arden Rowell, Law, Belief, and Aspiration (2017), available at SSRN.

Theories about law frequently assume that people know what the law is. Theoretical accounts of the rule of law by Lon Fuller, Joseph Raz, and Friedrich Hayek, for example, emphasize that law must be prospective, clear, public, and stable, because it must be capable of guiding behavior.1 The assumption that people know what law is shows up in H.L.A. Hart’s assertion that a necessary condition for law is that valid “rules of behavior” promulgated by the legal system “must be generally obeyed.”2 This assumption is also manifested in theoretical claims that criminal laws deter crime and tort liability creates incentives for behavior. These and other discussions about the supposed consequences of law often take for granted that people have a correct understanding of what law requires.

Professor Arden Rowell’s recent article, “Law, Belief, and Aspiration,” casts doubt on this assumption. This empirical study, though not itself a work in jurisprudence, has significant theoretical implications and should be read by jurisprudents.

Rowell conducted a survey of 869 citizens across 6 states on 10 legal topics (employment law, criminal law, property, taxes, health, transportation, traffic regulations, gun control, state constitutional law, and torts). Most of the questions are basic: Does your state have an income tax? Is texting while driving legally prohibited? Does your state have the death penalty? May employers fire employees at will (unless contractually prohibited)? Does the state cap pain and suffering awards in medical malpractice? Are people required to report to police the commission of a felony by someone? And so forth. (P. 12.) Survey questions inquired about people’s knowledge of law as well as their normative desires for the law. This enabled Rowell to compare what the law is, what people believe the law is, and what people want the law to be.

Many of her findings are surprising. Correct answers about the law ranged from a low of 47% (on the legal obligation to report felonies) to a high of 83% (on state taxes). Given the unpleasant annual ritual of tax filing, it makes sense that a significant majority of people would correctly know whether their state imposes taxes (though one must wonder about the 17% who got it wrong). But significant percentages of people were wrong on the legal requirement to report felonies (53% incorrect), on damage caps (45.5% incorrect), on at will employment (38% incorrect), on the whether the constitution includes a right to a clean environment (37.2% incorrect). (P. 15.) Over twenty percent of respondents were wrong about whether the state has a death penalty and over whether texting while driving is prohibited.

Overall, people were wrong about the law one third of the time, though accuracy varied by topic and by state. For example, almost two-thirds of Texans and Montanans, incorrectly believed that texting while driving was legally prohibited in their state. Older people and people with higher levels of education tended to be better informed about the law. (Pp. 16-17.)

Two findings are particularly striking. First, contrary to what one might assume, there was no relationship between accuracy and perceived importance of the topic. “Whatever else is driving people’s knowledge about law, it is not being significantly driven by the level of importance that they themselves attach to a topic,” Rowell concludes. (P. 17.)

Second, “there is a significant relationship between what people believe the law to be, and what they believe it should be.” (P. 19.) (Emphasis added.) Respondents tended to believe the law matches their normative preferences, although this was not true about one-third of the time. (Pp. 26-28.) On four of the ten topics, their normative preference for what the law should be was a better predictor of their belief about law than what the law actually is. (Pp. 19-21.) As Rowell indicates, the causal arrow behind this association is not clear—whether normative preferences influence beliefs about law, or vice versa.

This is not the first study to demonstrate that significant numbers of people are misinformed about law. Pauline Kim completed two studies showing that workers across several states misunderstood basic rules governing employment relationships, overestimating the extent of job protection provided by law.3 John Darley, Kevin Carlsmith, and Paul Robinson found that on three out of four criminal law topics studied people were unaware of the applicable legal regime.4 Rowell’s study adds a broader set of questions across multiple areas of law, examined in a larger number of states.

She briefly raises a several intriguing theoretical implications of her findings. Rowell suggests, for example, that the key to deterrence is not what law actually is, but what people believe law is, so targeting and changing beliefs is more important than actually changing the law. (P. 36.) She raises doubts about discussions of the expressive function of law, which often fail to recognize that beliefs about law and aspirations for law regularly diverge from what law is. And Rowell suggests that when people believe law already matches what they think it should be, they will not engage in efforts to reform the law when this is not true simply because they do not realize it. (Pp. 33-36.) (Remember, perceived importance is not associated with greater knowledge.)

Her findings raise other potentially important implications for legal theory. Take the rule of law. The rule of law enhances individual autonomy and liberty, it is often said, because people are apprised in advance of the potential legal implications of their actions. By providing notice, law enhances predictability and planning. People are free to do whatever the law does not explicitly prohibit. These assertions are central to rule of law arguments by Hayek and Fuller. But what if significant numbers of people systematically misapprehend the law? What if certain subpopulations—better educated, older—know more about the law than others?

Or consider Hart’s assertion that a necessary condition for the existence of a legal system is primary rules “must be generally obeyed.” It cannot be said, however, that people “obey” laws they do not know. This study suggests perhaps that Hart stated this condition too demandingly—perhaps a legal system may exist as long as the primary rules are “not generally contravened” (knowingly or not).

Assertions by legal theorists that law provides notice and predictability or that law is obeyed by the populace have long been questionable for the plain reason that laws often are highly complex and couched in technical legal language impenetrable to lay people. Examine any statute at random and one would find not only that its meaning takes effort and expertise to discern, but also that its implications depend on other related statutes and doctrines, and draws on legal terminology not explained in the text itself. (Never mind that common law doctrines are not set forth in a single authoritative text, though pattern jury instructions are a good place to start.)

One might respond that legal notice and predictability still exist thanks to the assistance of lawyers, but this raises additional questions about affordable access to lawyers and whether people regularly consult lawyers ex ante.

Or legal theorists might instead rethink the assumed relationship between law and the populace. Perhaps the crucial factor in the association between law and social conduct is not that people actually know what the law is, but whether the law matches people’s intuitions about what law is. When they do match, “knowledge about” law or “compliance with” law is not literally but functionally correct—such that the operative factor is not the causal influence of law on social behavior but the correspondence between law and social beliefs about law.

Rowell’s study alone is not enough to indicate that these theories must be modified. However, in conjunction with other similar findings, it does indicate that more thought must be put into aspects of these theories that largely are taken-for-granted by legal theorists.

Rowell’s study also raises a more general question about whether legal theorists must (or at least should) consult relevant empirical studies when the theories they construct include assertions about what people know or think about law, how law affects behavior, what are the functions of law, and so on. This would seem obvious, but it is not currently the standard practice of many legal theorists.

 

  1. See Brian Z. Tamanaha, On the Rule of Law 93 (2004). []
  2. H.L.A. Hart, The Concept of Law 113 (1961). []
  3. Pauline Kim, Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-Will World, 83 Cornell L. Rev. 105 (1998); Pauline Kim, Norms, Learning, and Law: Exploring the Influences on Workers’ Legal Knowledge, 1999 U. Ill. L. Rev. 447 (1999). []
  4. John M. Darley, Kevin M. Carlsmith, & Paul H. Robinson, The Ex Ante Function of the Criminal Law, 35 L. & Soc’y Rev. 165 (2001). []
Cite as: Brian Tamanaha, Faulty Knowledge About Law, JOTWELL (August 8, 2017) (reviewing Arden Rowell, Law, Belief, and Aspiration (2017), available at SSRN), https://juris.jotwell.com/faulty-knowledge-about-law/.

Was Foucault a Liberal and Should We Care?

Foucault and Rights is intriguing and impressive at two levels: one exegetic; the other political. They can only be separated analytically, and they overlap and are interwoven in this book, but beyond a brief characterization of the exegetical virtues of the work, I will focus on politics, for two reasons. The first is simply that I am not a specialist on Foucault’s oeuvre. So I will not pretend to provide for Golder what he does so well for Foucault: an immanent exegetical critique. I will just say that Foucault and Rights is a masterly account and meticulous excavation of some of the deeper layers of Michel Foucault’s thought, postulating and persuasively arguing for underlying coherences in the face of apparent surface inconsistencies. It is exemplary immanent critique: immanent because the aim is primarily to explore the internal theoretical resources of Foucault’s thought to situate what he has to say about rights; and critique in a classical sense that does not immediately imply disagreement, still less hostility but is compatible with deeply sympathetic archaeological recovery and reconstruction; to use Golder’s phrase from another context, ‘critical affirmation’. The exegesis is assured, authoritative, intimately versed.

A second reason to think separately about the political concerns of this work is that they are important and unconcealed motivators – not determinants but motivators – of the interpretation Golder arrives at. For Foucault’s late invocations of rights present not merely an apparent problem of intellectual coherence, given his early critiques of what many have taken to be the metaphysical grounds of liberalism generally, and rights talk more specifically, but an apparent source of both political embarrassment to adepts and disciples of the earlier Foucault, and unembarrassed glee mixed with Schadenfreude to erstwhile liberal critics, who are pleased he had come to his senses at last.

People of a certain age, and alas I am one, might have a feeling of déjà vu all over again, confronted with this predicament. We have been here before. There was Althusser’s strenuous and Stalinist insistence on an ‘epistemological break’ in Marx’s thought, to avoid being sucked into his political embarrassing critical philosophy. Later, and at the darkest extreme, they will remember the discomfort of many of Heidegger’s philosophical admirers or those of Paul de Man, when their political allegiances were revealed. Altogether less sinister, and closer to our subject, is the furore that that doyen of Marxist historians, E.P.Thompson, caused when in Whigs and Hunters, a book which for 258 of its 269 pages would have raised no controversy on the Marx-inspired Left, ended with an eloquent paean to the rule of law as a ‘cultural achievement of universal significance’. There would not have been much of a fuss, or even notice, if Hayek had written such a coda, but it was deeply disquieting to many who considered themselves to have been on Thompson’s team. Many of his erstwhile supporters found these eleven pages in a life’s work inexplicable, and if explicable unforgivable. He had gone over to the Dark Side. My own feelings in 1976 were a bit different. I became fond of Thompson precisely at that time, and for that reason, and have remained so. Reading Golder’s account, it’s beginning to happen again with Foucault.

I should come clean. I like liberal rights. My aim will be less to engage with the detail of Golder’s exposition of Foucault, which, to repeat, I find meticulous, impressive and persuasive, than with the Other of the book: the liberal challenge. Golder nowhere denies that Foucault made numerous, often eloquent, invocations of rights in his later political interventions; indeed they are the occasion of his book. But he resists any interpretation of these as a conversion to liberalism. At his most positive, he sees in them ‘critical affirmation’ of rights talk. (P. 154.) As the book goes on, however, affirmation pales in the stronger light of subversion. For Golder finds Foucault not appropriating or subscribing to liberal rights ‘in a way that is consonant with and thoroughly contained by the ordering idioms of liberal political thought … [but rather] in ways that might seek playfully to contest, mimic, subvert, or tactically outrun them, that is, to read them performatively and put them to different, contrary uses.’ (P. 67.) He develops ‘a critical, subversive, appropriatory praxis of rights which, far from denying their value or utility, actually celebrates the ways in which they can be put to different, and contrary, uses.’ (P. 159.)  

As the argument picks up speed, the language becomes increasingly militarized. On Golder’s account, explicitly drawing on Clausewitz, Foucault’s use of rights is ‘tactical’, ‘instrumental’, not ‘strategic’, they are ‘deployed’ rather than respected; in the service of subversion, resistance, and ‘critical counter-conduct’. Affirmation is never rejected in this account, but I must say that by the end of the book it is pretty tightly squeezed; with affirmation of this sort, you might prefer some rejection. Thus, although Foucault ‘expresses his political interventions via the liberal idiom of rights, [he] ‘performative[ly] undermine[s]’ them in the process.’ (P. 20-21.) Again, he employs law ‘(or any other assemblage) [as] a kind of insubordinate, disobedient, and potentially subversive deployment that plays the game in a way that does not respect the stated purpose of the game and hence troubles and possibly undermines it.’ (P. 117.)

Why is it so important to emphasize the critical, subversive, ruptural, possibilities of Foucault’s invocation of rights and human rights so much more than the apparent plain and simple affirmation of them that appears to occur in his critiques of Iranian and Polish dictatorship, arbitrary treatment of prisoners, and so on, where subversion of rights seems the last thing on his mind? One can learn that from the contrasts Golder employs in the last pages of his book, and the language Golder uses to characterize what is at stake. His own interpretation is, he says, ‘a far more revealing (and convincing) framework with which to view Foucault’s late turn to rights than one of a resigned and defeatist rapprochement with an anti-utopian liberalism of  human rights and rule of law promotion.’ (P. 154.) Golder offers ‘an antidote’ to the ‘glib reclamation’ of Foucault’s writings ‘as “liberal”’. Foucault does not ‘suddenly pick up the tools of liberalism because of a Damascene, utopian faith in their possibilities. Nor does he turn to rights disappointedly because revolution has failed.’ (P. 155.) The way Golder sets up the options, if Foucault can’t be reclaimed as a practitioner of ‘critical counter-conduct’, the alternative would seem to be that he must be a liberal, with all the commitments,  ontological, epistemological, moral, economic, and above all political, of the species. And who wants that?

In one footnote, Golder concedes that his account of liberalism might not be as close or meticulous as his rendering of Foucault, but he says fairly enough that Foucault, not liberalism, is the subject of his book. (P. 171-72.) And yet, liberalism, or Golder’s substantial characterizations of it, its presuppositions and its contrasts with what Golder finds to be laudable in Foucault’s deployment of some of its instruments, are the constant foils with which his own account is contrasted. Liberalism, or ‘orthodox’ liberalism, is assumed to carry all sorts of identifying commitments, metaphysical, sociological, political, and normative. If we were to concede that Foucault had joined the camp of liberals in his eloquent and passionate invocations of rights, we are led to believe, he would have to share all those commitments, which we don’t like, and some of which in his earlier writings he had trenchantly and influentially criticized.

I believe, by contrast, that to pit Foucault’s thought against such a homogenized ‘liberal’ package can mislead for at least two reasons. First, as Stephen Holmes has observed, ‘One of the greatest obstacles to a fresh understanding of [liberal] rights is the tyranny of false polarities. Political theory lives in thrall to a sequence of binary schemes’.1 Secondly, and in part because of this stark sort of polarization, because the noun can too easily at once include too much and exclude too much, it is both over and under inclusive. The universe of political choice might well be miscast if too quickly boxed into one or another allegedly distinct and self-sufficient, worse still exhaustive or exclusive, style or tradition of political thought.

A few examples. Golder treats liberalism as an ideology that has deep ontological and other commitments, whereas Foucault by supposed contrast ‘treats liberalism not so much as an ideology but rather as a way of governing.’ (P. 69.) The same might be said, however, of Montesquieu and Tocqueville,  Holmes and Judith Shklar, for whom the ‘overt purpose [of liberal interventions]… is purely political.’2 Again, among many splendid Foucaultian aphorisms that I have now learnt from Golder, there is: ‘My point is not that everything is bad, but that everything is dangerous.’ (P. 103.) Lord Acton, Shklar and Holmes could not have said it better; they might be proud to have said it as well.

We are told liberals and particularly liberal human rights theorists are disposed ‘not to condemn the structural violence of poverty or inequality, but rather to expose practices like state killing and torture.’ (P. 151.) But what then of the concerns of Rawls, Sen, Waldron, Holmes, and American liberals as distinct from conservatives, who fight with libertarians over just such matters as the structural violence of poverty and inequality (and also dislike torture)? Again, liberals are taken to be stuck with a fundamental and intertwined dichotomy between the individual and the state, whereas Foucault ‘problematizes the liberal dyad of state and individual.’ (P. 130.) He is hardly the first to do that. It puts him square in the camp of his French ancestors, Montesquieu and Tocqueville,  liberal giants who constantly ‘subverted’ such a dyad, obsessed as they were with the significance of ‘intermediary groups’, civil associations, the tyranny of the majority, and so on. Finally, Foucault is praised for challenging existing arrangements without relying upon a ‘positive’ (substantial and substantializing) normative vision of what the world should be.’ Rather than postulating some specific alternative, his enterprise is, in terms of his coinage, ‘”nonpositive affirmation” … “essays in refusal.” …  Foucault’s critical stance commits him to neither advocacy nor rejection of either of these elements [foundationalist account of subjectivity and a juridical theory of sovereignty] of rights discourse.’ (P. 37.) His ‘mobile and iterative understanding of freedom refuses, as per liberal or utopian understandings, to reify the concept or to mark it as foundational or as a finished state of affairs. Freedom is a ceaseless work without any guarantee.’ (P. 112.) How welcome would this statement be to the tradition that Judith Shklar expounds and endorses as ‘the liberalism of fear’, which:

‘concentrates on damage control … one may be less inclined to celebrate the blessings of liberalism than to consider the dangers of tyranny and war that threaten it. For this liberalism the basic units of political life are not discursive and reflecting persons, nor friends and enemies, nor patriotic soldier-citizens, nor energetic litigants, but the weak and the powerful. And the freedom it wishes to secure is freedom from the abuse of power and intimidation of the defenceless that this difference invites. (P. 9.)

The liberalism of fear, Shklar goes on to insist,

does not …offer a summum bonum toward which all political agents should strive, but it certainly does begin with a summum malum, which all of us know and would avoid if only we could. That evil is cruelty and the fear it inspires, and the very fear of fear itself. (P. 10-11.)

No form of liberalism has any business telling the citizenry to pursue happiness or even to define that wholly elusive condition. It is for each one of us to seek or reject it in favour of duty or salvation or passivity, eg. Liberalism must restrict itself to politics and to proposals to restrain potential abusers of power in order to lift the burden of fear and favour from the shoulders of adult women and men. (P. 13.)

Of course, not all liberals agree with Shklar. Some have metaphysical commitments, others different political commitments. But that is part of my point. Liberalism is a broad church. Foucault comes to condemn tyranny in Iran and Poland, for example, in eloquent, incisive, and highly liberal terms; he says in conversation with Jonathan Simon (and it appears to the latter’s surprise) that ‘we could define the right as the limits of the exercise of power: limits which are implied by the definition, the goals, and the rational structure of power‘.3 I think he should simply be praised for that without fear that he is hitching up to a host of commitments which many liberals who agree with him do not share.

I conclude with a semantic point that has, I think, more than semantic significance. If I were to voice one criticism of the semantics of Golder’s book, it is that the major choices it posits are between Procrustean collective nouns rather than differentiating adjectives. I think it should be the other way around. If the question is whether the late Foucault embraced liberalism, became a liberal, then the answer seems to force a huge choice, which those unwilling to sign up to a laundry list of ‘liberal’ commitments might baulk at. But if you ask whether the attitudes he expressed, and the sensibility he expressed in his writings on Iran and Poland etc are liberal, then it seems to me simply and wholly accurate to say: of course they are. And I don’t find much ‘critical counter conduct’ in them.

I was in Poland at roughly the same period as Foucault – post-Solidarity; pre-post Communist – and there is not a word he wrote with which I would disagree, though I could not have said it as well. These are liberal sentiments, and there are hosts of people of illiberal sentiment who would then, and do now, reject them – in Poland and elsewhere, particularly but not only in our Trumped-up world. In my view, such liberal sentiments should be sources of celebration, not embarrassment. One should be less uneasy to find them displayed without subversion, rupture, playfulness, than to celebrate them, defend them, worry about their fragility, treat them with utmost seriousness, and strive to protect them. Because they were then and they are now precious, and under threat all over the world.  As I read these invocations of rights, in all but the somewhat overrefined remarks on euthanasia that Golder takes to be exemplary and that seem to me excessively ‘playful’ about unplayful states of affairs like dying in excruciating ways, Foucault understood all this and was admirably liberal in his responses to them. In the light of that, whether or not he can be convicted of being a card-carrying liberal, a liberal pur sang, is the least of my worries.

  1. ‘The Liberal Idea’, in Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 28 (1995). []
  2. ‘The Liberalism of Fear’, in Judith N. Shklar, Political Thought and Political Thinkers 15 (Stanley Hoffman ed., 1998). []
  3. Michel Foucault, Jonathan Simon & Stuart Elden, Danger, Crime and Rights: A Conversation between Michel Foucault and Jonathan Simon, 34 Theory, Culture & Soc’y 3, 21 (2017). []
Cite as: Martin Krygier, Was Foucault a Liberal and Should We Care?, JOTWELL (July 24, 2017) (reviewing Ben Golder, Foucault and the Politics of Rights (2015)), https://juris.jotwell.com/was-foucault-a-liberal-and-should-we-care/.

Law and Theory of Human Action

John Hyman, Action, Knowledge, & Will (Oxford Univ. Press, 2015).

Every once in a while a book comes along that completely changes the way scholars think about their field. In the realm of what is referred to as “Action Theory,” Elizabeth Anscombe’s Intention was such a book. Together with Ludwig Wittgenstein and Gilbert Ryle, Elizabeth Anscombe pioneered a revolution in philosophical thought that replaced the Cartesian paradigm of inner reflection with an emphasis on thought and meaning grounded in intersubjective practices and public criteria of meaning.

John Hyman works in the tradition of analytic philosophy of mind just described. His previous work has been in aesthetics (he is Professor of Aesthetics at Oxford) but, over the years, he has developed a position in action theory that is informed by the work of philosophers in the tradition mentioned above. In the book under review, Hyman works through the work of the philosophers just mentioned and advances a new way of thinking about human agency. His book should be of special interest to lawyers as it contains illuminating discussions of many topics found in law (e.g., will, action, act and knowledge).

Hyman’s book centers on what he calls “The Modern Theory of the Will.” Starting with Descartes and running through much of British Empiricist philosophy (as well as Bentham and Mill), human action is conceived of as a mental act of will that manifests itself in physical action. As the source of all voluntary or intentional action, the will is the engine of human activity: the will is the mark of human agency.

Hyman argues that the Modern Theory of the Will is a simplistic and explanatorily troubled picture of human action. It is simplistic in that all of human action is reduced to a single paradigm: the will as the seat of all action. It is explanatorily troubled because, owing to its simplicity, there is confusion over the proper explanatory categories for human action. I shall consider one of these in a moment. First, let me present Hyman’s taxonomy for understanding human action.

The centerpiece of Hyman’s analysis is his view that human action has four distinct and irreducible dimensions: physical, psychological, ethical and intellectual. The principal error of the modern theory of the will is to confuse and conflate these four dimensions. By disentangling each of these from the garbled narrative that is the modern theory of the will, Hyman demonstrates how human action can be understood in more perspicuous and efficacious terms.

One of the best examples of the power of Hyman’s four dimensions of human agency is found in the distinction between intentional and voluntary action. At least since Anscombe, voluntariness and intention have been joined together. The conventional wisdom is that an act done intentionally is done voluntarily. Hyman shows why this view is false. In drawing the distinction between these two concepts, Hyman identifies voluntariness not as a psychological notion but as an ethical one. An act is voluntary, Hyman argues, “if it is due to choice as opposed to ignorance or compulsion.” (P. 7.) Voluntariness is a negatively-defined concept. A certain act is voluntary “if, and only if, it is not done out of ignorance or compulsion.” (P. 77.) Compulsion, such as duress, has the effect of negating voluntariness. Hyman shows how voluntariness—properly understood—gives us fresh insight into duress. If he is right, then the law may need to rethink its understanding of this central notion.

I shall consider Hyman’s argument from the point of view of contract law. The question about duress, Hyman argues, is “whether a person who acts under duress acts voluntarily.” (P. 81.) When voluntariness is linked with the intentional, this can lead to paradox. In one of the most interesting discussions in Action, Knowledge & Will, Hyman analyses this paradox, specifically in the legal context. Generally speaking, “voluntariness is associated with choice.” (P. 81.) When he was Lord Chief Justice, Lord Widgery gave the following summary of duress in a perjury case (Hudson and Taylor). He wrote:

It is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) if the will of the accused has been over- borne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused.1

Hyman notes that “the majority of judgements in criminal and civil cases involving duress have endorsed Lord Widgery’s position.” (P. 82.) But there is an opposing view, one held by some jurists and not a few scholars. The view is simply stated: threats, no matter how terrible, “influence but do not abolish choice, and therefore do not negate voluntariness.” (P. 82.) This position—Hyman dubs it “the revisionist position”—has serious implications, if for no other reason than “[a]t the limit, it might seem to undermine the justification for a defence of duress entirely.” (P. 83.) Hyman puts it this way: “a person who gives way to duress could choose to resist, even if doing so would be dangerous; and a person who pays a fine or joins the army as a conscript could refuse to do so, even if this would be unwise, futile, or wrong.” (P. 81.) Taken together, the two positions present an antinomy (a paradox) about duress, which expresses itself in competing intuitions.

Getting clear about duress means understanding the relationship between ability, possibility, and choice. In every case of duress, the victim could have refused to comply with the demand and endured the threatened act. In such situations, we say “I had no choice.” Hyman thinks that this statement—which is quite common in such circumstances—is “a clue rather than a solution to the puzzle about voluntariness and choice.” (P. 93.)

Hyman offers a three-part test of voluntariness. This test dissolves the antinomy regarding duress in a way that accommodates our competing intuitions about the concept. First, if one does an act to avoid a threatened harm of sufficient gravity, then the act is not done voluntarily. Whether someone acted voluntarily may turn on whether they believed they had a choice, an alternative. Thus, “there is an inescapable subjective element in the concept of voluntariness . . . .” (P. 97.) Second, whether or not someone really had a choice “depends both on the severity of the threat and on the value of the interest sacrificed by giving way.” (P. 98.) Finally, a person compelled to do something in response to a threat is—ceteris paribus—able to resist. Thus, “if it is possible for someone to avoid doing something, it does not follow that he does it voluntarily.” (P. 98.)

The conventional legal understanding of duress is that the party asserting the defence needs to show that the wrongful threat or act was such that his or her will was overcome. I have no doubt that focus on the will—a psychological focus—can be explained as a corollary of the dominance of the modern theory of the will. Hyman substitutes focus on the will with a revised conception of voluntariness. His three-part test replaces the “will theory” of duress.

In addition to resolving the antinomy regarding duress, Hyman’s analysis shows what is really at stake in judgments about duress. What we care about is not so much the will (a causal focus) but the impropriety of the threat that gives rise to the claim of duress. What Hyman accomplishes is a reorienting of our understanding of duress from a psychological to an ethical perspective. This will not only clarify what is really going on in these cases. Further, it will set the stage for a wider inquiry into the relationship between legal doctrine and the four dimensions of human agency.

There is a great deal more I could discuss from this fascinating book. For one thing, Hyman offers a new account of the nature of knowledge, a topic that has preoccupied philosophers for millennia. There is so much in this book for lawyers. Written in accessible prose, the book is a must read for anyone with an interest in the philosophy of action, epistemology, and legal theory.

  1. R v. Hudson and Taylor [1971] 2 All ER 244. []
Cite as: Dennis Patterson, Law and Theory of Human Action, JOTWELL (June 28, 2017) (reviewing John Hyman, Action, Knowledge, & Will (Oxford Univ. Press, 2015)), https://juris.jotwell.com/law-and-theory-of-human-action/.

Philosophy of Language and Legal Interpretation

Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics, forthcoming 2017), available at SSRN.

Law is pervasively interested in the proper understanding and application of texts: contracts, wills, trusts, agency regulations, statutes, constitutional provisions, etc.  Legal interpretation is obviously central to legal practice, and it is not surprising that legal scholars would come to look to literary interpretation and philosophy of language for insight. The discussion of literary interpretation, and what lawyers, legal scholars, and judges might learn from it, has been one of the themes of the Law and Literature movement. The recourse to philosophy of language has been slower and less well publicized; however, there is now a growing literature applying philosophy of language to problems in law (e.g., Alessandro Capone & Francesca Poggi (eds.), Pragmatics and Law (Springer, 2016); Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law (Oxford, 2011)).

Brian Slocum is one of the most important scholars working at the intersection of legal interpretation and philosophy of language, as exemplified by his recent book, Ordinary Meaning (University of Chicago, 2015). In that book, Slocum contrasted one of judges’ favorite touchstones when interpreting documents, “ordinary meaning,” with the idea of “communicative meaning.” In the present article, Pragmatics and Legal Texts, Slocum offers a parallel contrast: between “literal meaning” and “communicative meaning.” To understand the “literal meaning” of a text or statute, one need only understand the meanings of each constituent term and how they fit together grammatically and logically to express a proposition. This process is meant to be independent of any considerations of the context of utterance. The article defines “communicative meaning” differently, as “what an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context.” (P. 2, footnote omitted.) This meaning can differ from the literal meaning because communication is a cooperative activity, which presupposes several further norms that can affect the communicative meaning of a statute or text in the context of utterance.

These matters touch on ongoing debates in legal interpretation. There are formalists in contractual interpretation who oppose interpretation in light of customs or context or on the basis of party understandings that vary from the apparent meaning of the text. There are “textualists” who argue that statutes should be interpreted according to the “plain meaning” of the words enacted, without any reference to the statute’s purpose. There are originalist theorists who argue that the meaning of provision of the United States Constitution is “fixed,” or at least significantly constrained, by the original understanding of the terms used (“original” here meaning at the time of ratification). What is sometimes missed is that when judges and legal scholars argue for and against such “literalism” in legal interpretation, they are not really advocating for literalism in its most narrow and precise meaning. As Slocum points out, a certain amount of reference to assumed communicative intent is accepted even in the most “literalist,” “textualist,” “formalist,” or “originalist” approaches. The article illustrates this using a commonly referenced canon of interpretation, “ejusdem generis,” under which a general term at the end of a list is assumed to be constrained by the category in which the other items in the list fall. Slocum gives the example of a statute that regulated “gin, bourbon, vodka, rum and other beverages”; in that statute, “other beverages” would be understood as not covering (non-alcoholic) sodas, even though sodas clearly fall within the literal meaning of “beverages.” (P. 13.) It is the immediate context of the term “beverage” in the text—the other beverages listed—that alters what the term is held to mean. Also, a sign on a building stating that “no dogs, cats, or other animals allowed” would not be read as applying to human beings, even though human beings are animals. (Pp. 19-20.) The way that context can make perceived meaning of a word or sentence vary from literal meaning (narrowly understood) often goes under the labels “pragmatics” or “implicature”—both discussed at length in Slocum’s article and in his other works.

A basic question for those working in—or just reading about—the intersection of philosophy of language and philosophy of law relates to the ultimate objective of the exercise. Is it description or prescription? Are we just getting a clearer understanding of what we (judges, lawyers, law professors) are already doing when we interpret and apply legal texts, with some of the benefit being a more sophisticated terminology for our descriptions; or are we learning the proper way to interpret, lessons that will lead us to change our current interpretive practices? For some academics, no research project is valuable unless it is prescriptive: that it leads to some “bottom line” argument for reform (or defense of current practices against other scholars’ arguments for reform). I think that this attitude is too narrow, and that good descriptive projects are also worthy of our time and attention. In Slocum’s work, the project appears to be primarily about clear explanation (and, secondarily, contesting the explanations by some other commentators), rather than any argument about changing legal practices.  For those who want a clear overview about interpretive issues in law, and how these can be understood in terms of philosophy of language, Slocum’s works are an excellent place to start.

Cite as: Brian Bix, Philosophy of Language and Legal Interpretation, JOTWELL (May 29, 2017) (reviewing Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics, forthcoming 2017), available at SSRN), https://juris.jotwell.com/philosophy-of-language-and-legal-interpretation/.

Interauthority Relationships

Timothy Endicott, Comity among Authorities, 68 Current Legal Problems 1 (2015).

For too long the focus in philosophy of law has been the national legal system. As some have already observed, this ignores public international law. But it also ignores private international law, or (as Americans would call it) the conflict of laws. Private international law is less about creating laws and judgments that bind nations than it is about coordinating nations’ existing laws and judgments. Philosophers of law also tend to ignore similar coordination within a national legal order. Not much is said about federalism, subsidiarity, and administrative law.

The focus on the unitary national legal system extends to how philosophers of law use the concept of authority. As Joseph Raz has argued, an authority provides a service: those subject to the authority are better able to comply with their reasons for action by doing what the authority says than by considering the reasons directly. For example, a doctor will be an authority for me if I am better able to do the right thing medically by following the doctor’s orders than by acting on my own reasoning about medical matters. Simply because lawmakers are considered to be authorities does not mean they are. But because lawmakers claim authority, even if they may not have it, authority is considered essential to understanding the law. Because of the focus on the unitary national legal order, however, philosophers have concentrated on the relationship between a single authority and its subjects—how the authority mediates between its subjects and their reasons for action.

In this article, Timothy Endicott considers the question of coordination between authorities. When should an authority go along with the decision of another authority, even when it thinks that decision is in error? Here is one of his examples: “A mother arrives at the school football game to find her son fighting with another small boy, and the other boy’s father is trying to exert his authority to solve the problem.” (P. 1.) The goal is to use general lessons drawn from such situations to illuminate areas of the law that concern the coordination of authorities, like private international law and administrative law. (My focus will be the former.)

These general lessons, Endicott repeatedly emphasizes, are very modest. Too much depends upon the particulars. Nevertheless, he is able to put important concepts in private international law in a new light.

An example is jurisdiction, both adjudicative (that is, the power to issue a judgment binding on the parties to a concrete dispute) and prescriptive (the power to create laws that prospectively regulate transactions). In private international law, jurisdiction tends to be read territorially. Under Endicott’s reading, this can be explained by the fact that French officials are probably better (and certainly no worse) at exercising the service of authority concerning persons, property, and events within France than American officials are. The point is not that this is the actual reason for the territorial nature of the positive law of jurisdiction. That may be based in the extent of the sovereign’s capacity to coerce. Rather, this is a reading of jurisdiction in the light of the law’s claim to authority.

But the biggest payoff is Endicott’s interpretation of the fuzzy and contested concept of comity. Assume that a French court issues a judgment in favor of a French plaintiff against an American defendant concerning a French business transaction. The French plaintiff then sues in an American court, asking that the defendant’s American assets be seized to satisfy the French judgment. The reason for the American court to give effect to the French judgment, it is sometimes said, is comity.

But theorizing about comity seems to vacillate between two unsatisfying poles. On the one hand, comity is understood as mere courtesy or reciprocity between sovereigns. That makes it sound too weak and discretionary. On the other hand, comity is understood as a duty of one sovereign to another. That makes it sound too strong and unyielding.

Endicott argues that we cannot understand comity by considering only the relationship between the authorities. We must think of their relationship to the people they serve. To the extent that the American court should go along with the French court’s decision (whether or not French courts would do the same were the situation reversed), this is because it would serve the parties subject to the authority of the American court. If the American court unjustifiably ignores the French court’s decision, the wrong would be to the parties, not to France.

Notice that it does not follow that an authority should always go along with the prior decision of another authority within its jurisdiction, even when one throws in independent justifications, like the benefits of finality. The service the second authority provides is likely to be different from the first’s. As Endicott emphasizes, there are too many relevant considerations to come up with hard and fast rules. But, out of concern for those subject to its authority, the second authority should act, whenever possible, with respect for the legitimate authority of the first.

Cite as: Michael Green, Interauthority Relationships, JOTWELL (April 28, 2017) (reviewing Timothy Endicott, Comity among Authorities, 68 Current Legal Problems 1 (2015)), https://juris.jotwell.com/interauthority-relationships/.

Law and Virtue

Kimberley Brownlee, What’s Virtuous About the Law?, 21 Legal Theory 1 (2015).

In this interesting and clearly argued article, Kimberley Brownlee investigates the extent to which the law can serve as a model of virtue. She rightly points out that many ethicists understand law deontologically, as a set of principles that determine rights and duties: in other words, that for law to embody a morality, this morality must be essentially law-like. The article observes that the law’s various concerns cannot be entirely reduced to deontology (P. 5), but there is in any case room for dissatisfaction with the idea that deontology and “virtue ethics” are opposing conceptions of morality. Aquinas, for example, devotes the entire secunda-secundae of the Summa Theologiae to a discussion of the virtues, but does not hesitate to identify duties to be performed (including the human being’s duties to God).1

One interesting observation at the outset of the article is that the law “tends toward injustice.” This is a very arresting comment, and it is a shame that there is no discussion of it. For one thing, it runs contrary to the much-repeated idea of Lon Fuller that the law “works itself pure,” that is, tends toward justice over time, or to the classical common law philosophies of writers such as Hale or Coke, which regarded the law as the accumulation of reason. One could also point to the natural law content of positive law: the suppression and punishment of criminality, maintenance of the inner tranquility of the state, the restraint of fraud, sexual crimes and civil wrongs, regulation of contracts and so forth. In all such cases the tendency of the law seems to be toward justice rather than its contrary.

The article discusses five ways in which the law can model virtue, the most significant of which is that of the Virtuous Person, the person who is “a purported ideal of immutable, full, and perfect virtue.” (P. 6.) The discussion touches upon the “pluralism objection,” that if “morality is fundamentally pluralistic, then ‘full and perfect virtue’ is impossible.” (P. 7.) This rejects the classical Aristotelian doctrine of the unity of virtue (P. 6), that in order to possess one of the virtues, it is necessary to possess all of them. (N.B. this doctrine relates only to the so-called cardinal virtues.) Both Aristotle and Plato—and later Aquinas—regard virtues as mutually reinforcing, unlike the merely pleasurable interests of the masses which vie with and undo one another.2 The underlying principle, that the truth harmonizes with all data, whereas falsehoods clash and contradict one another, is not there defended by Aristotle, although a defense is available.

There are five ways in which the law can “model” virtue, of which I shall mention here only two: first at the level of specific laws and policies (e.g. “open-mindedness” in allowing individuals freely to choose and pursue their own ends), and secondly at the level of the law’s foundational structures. (Pp. 10-11.) Here there are two problems, the “poisoning problem” and the “emulation problem.” The poisoning problem is that the coercive properties of the law appear to model non virtuous modes of behavior: “The law necessarily calls on its members, as officials and citizens, to do things such as threaten people, attack people, make laws that harm people, lie to people, detain people, isolate people, charge people with offences, make judgments on people’s guilt, sentence people to be punished, impose punishments on people, deprive people of their resources, and perhaps, in extreme cases, incarcerate and possibly kill people.” (P. 15.) I did not entirely follow the reasoning here. Of this list, some—such as the punishment and incarceration of criminals—are not contrary to virtue, and others (such as determining guilt) are virtues (here the virtue of prudence). But it would be useful to have examples of other members of this list, such as occasions when the law requires one to lie. This latter Aquinas would regard as an unjust law to which one is bound in conscience to disobey, as being contrary to virtue. (and duty!)

The emulation problem is that if one acts virtuously for the sake of the law, one is not acting virtuously for the right reasons (and thus technically not acting virtuously); but if one acts for the right reasons, the law is not serving as a model of virtue. (P. 15.) It is probably true to say that certain branches of law fall foul of this objection. Where it acts successfully as a deterrent, the criminal law does not instill virtue into would-be criminals, but the majority of people do not need the deterrent and are thus unaffected by the law as far as virtue is concerned. But there are other areas of law where the law does appear to be a guide to virtue: tort law is one such example, since an ordinary lay person may wish to do the right thing but without knowing what the right thing is.

There are two respects in which the article could have gone further. In the first place, it could have considered the Thomist doctrine that the law seeks to bring people to virtue, but not all at once,3 and that the function of law is not to require the practice of all the virtues.4 Consequently, there is an important difference between the good citizen and the good person. (A good citizen pays her taxes even if resentfully, whereas a good person does so willingly.) In the second place, the article could have given a longer and systematic discussion of the law’s two most important virtues: justice and prudence.

In a comment of this length it is impossible to recount and discuss many of the article’s arguments and analyses, and I would encourage anyone interested in jurisprudence to read the full article, and in doing so gain a sense of its many virtues.

  1. For further evidence of the compatibility of duty and virtue, see e.g. Terence Irwin, 2 The Development of Ethics (Oxford, 2007). []
  2. See e.g. Aristotle, Nicomachean Ethics, I.8.1099a. []
  3. Summa Theologiae, I-II.96.2 ad 2. []
  4. Id. at I-II.96.3c. []
Cite as: Sean Coyle, Law and Virtue, JOTWELL (March 30, 2017) (reviewing Kimberley Brownlee, What’s Virtuous About the Law?, 21 Legal Theory 1 (2015)), https://juris.jotwell.com/law-and-virtue/.

What Law Do Legal Theorists Need to Know?

M. Sornarajah, Resistance and Change in the International Law on Foreign Investment (Cambridge University Press, 2015).

A question seldom asked is what actual legal knowledge legal theorists require in order to theorize about law, or, indeed, what areas of law they should visit in order to confirm their theories. Without wishing to suggest there might be a mandatory list of legal subjects, or a set of legal treatises that amount to required reading, my present purpose is to draw attention to an area of law and its treatment in a recent book by M. Sornarajah that would not obviously fall within the purview of legal theorists but which offers them particularly stimulating material.

The area of law is international law on foreign investment, an area Sornarajah is well positioned to write about, being commonly regarded as one of the founding expositors of a specialist sub-discipline of international law,1 whose rapid development in recent decades is a significant manifestation of the fragmentation of international law. This area of law, whose development has centred on the place and role allowed to arbitration on international investment treaties, accordingly provides an extraordinarily accessible set of data regarding the creation, recognition, and development of law.

Sornarajah’s principal thesis in writing this book is itself a theoretical one. From a detailed examination of the developments of the law over a period of twenty-five years, he aims to provide an explanation of change that is applicable more widely to international law, and addresses the (undesirable) phenomenon of fragmentation. (P. 8.) His explanation involves the ideological capture of this area of law, amounting to the exclusive promotion of partisan interests, in turn followed by resistance to the unjust condition of the law, holding out the prospect of change towards a more just condition.

The ideology capturing the law was neoliberalism (Pp. 10-15, 43-45, 62-63), and the partisan interests it favoured belonged to multinational corporations at the expense of developing countries. (Pp. 21, 27, 330, 398, 407.) The legal tactics employed to this end are charted meticulously by Sornarajah. They are founded on an interpretive move which allowed investment treaties to be taken beyond the consent of the parties to be serving an overriding interest of investment protection (Pp. 136-43), reaching an “acme of aberrations” (Pp. 168-73) when financial instruments involving government junk bonds acquired in foreign secondary markets were regarded as protected investments under a treaty contemplating investment in the party country. Sornarajah points to the unfounded “extreme adventurism” of this interpretive move: “It is not possible to enter the state as an investor through obligations or economic rights such as securities sold on foreign stock markets.” (P. 171.) The tactics extend to innovative uses of devices to consolidate neoliberal gains in the face of emerging opposition, such as the fair and equitable standard (Ch. 5) and the proportionality principle. (Ch. 7.)

Resistance occurred not simply from the affected states (Pp. 5-6, 66-67, 300) but also by dissident arbitrators (Pp. 5, 66, 168, 186, 399) and some academic commentators (Pp. 29, 301) who were alarmed by the transformations the area of law had undergone. The process of change displayed in the more recent approach to “balanced treaties” (P. 5) is currently ongoing. It is a process that is fiercely resisted by the forces of neoliberalism (Pp. 67-68, 417-18), resulting in a “contest between norms” (Pp. 69, 399-404) and a clash between the forces championing them. (P. 7) However, the very existence of conflict and efforts at accommodation are regarded as a manifestation of change, change from the absolute priority accorded to foreign investment. (Pp. 68, 418.)

Ultimately, Sornarajah looks towards a realignment of the field with the general principles of international law. (P. 8.) To some extent this is sought to ensure that interests other than those of investment are not excluded from the picture. (Pp. 8, 29, 76, 303, 418.) There is also a suggestion that a function of international law in “securing [wider] interests of poverty reduction, environmental protection and the promotion of human rights” aligns it with “its moorings in notions of justice.” (P. 29.) The author certainly considers interests precluded from the protection of the law by hegemonic power as being supportable by claims of justice, and that the exclusive concentration on the interests of investment is insupportable as clearly unjust—without having to invoke and defend a particular conception or specific principles of justice. (Pp. 22, 71, 417.)

Indeed, there is much to suggest that Sornarajah does not consider his extensive case study to be a celebration of the triumph of justice. Despite proposing a general theory of change for international law based on his study (involving hegemonic power, resistance including an appeal to justice, and change through accommodation or replacement of norms) (P. 420), the driving force which promotes and limits the detailed changes that occur is more often identified as a struggle between competing interests. (Pp. 1, 5, 7-8, 392-93, 418.) And in that struggle, control of the law is paramount. (Pp. 20-21, 26-27, 68-69, 398-99.)

Sornarajah reserves his harshest criticism for the legal officials (arbitrators and lawyers), abetted by academics (Pp. 29, 58-59), who have worked to allow control to be taken by the wrong side. He denounces these arbitrators for “ignor[ing] the higher values of the profession such as neutrality and fidelity to the trust placed in them by the parties.” (P. 61.) As for the large law firms, their motivation was “enlarging the market for their services.” (P. 65.) Because of the economic gains of arbitrators and lawyers (P. 65), they remain “dominant forces that will resist change,” given the huge stakes “in terms of [personal] monetary loss” that change would bring about. (P. 399.) Significantly, he applauds the proposal to exclude or limit the involvement of large law firms. (P. 420.)

It would appear that the business of Judge & Co., excoriated by Bentham, can still be found flourishing. Of greater analytical interest is how the activities of these legal officials, portrayed in Sornarajah’s book, shed light on our understanding of the creation and recognition of law. It is difficult to find any evidence showing officials following a rule of recognition here. It is equally difficult to maintain that their internal attitude to the law is morally neutral or based upon a disinterested legal point of view. Rather it appears that an ideologically charged, or self-serving, attitude is essential. There is also clear evidence that in the period of greater conflict in this area of law, there was not a legal point of view to be found but whatever happened to be the point of view of the individual (or majority) arbitrator. (Pp. 62-63, 417.)

Another issue of wider theoretical appeal illuminated by the material in this book is that of the relationship between law and the interests of members of the community. The issue arises in a disagreement between Gerald Postema and Joseph Raz, which can be concisely represented as concerning whether social existence under law emerges as a harmonious order serving the common interests of members of society, or is founded on an imposed order irrespective of the dissonant interests of individual members of society.2 The material Sornarajah provides certainly speaks to imposition of law over dissonant interests, but it stimulates further theoretical reflection in two respects. First, on the nature of the capture of law by one side of the conflicting interests, and on the resistance by the other side that impacts upon the law, extending beyond a simple picture of the exclusionary authority of law. Secondly, regarding the possibility of law being in a state of conflict itself.

Sornarajah’s book is a masterful account of an extraordinary, relatively short, period of dynamic change in the international law on foreign investment. It should obviously excite the interest and commitment of those working in the field. Perhaps, less obviously, it should equally demand the attention of those with interests outside of that field, both practical and theoretical, within international law and law more generally.

  1. Sornarajah’s classic text, The International Law on Foreign Investment was first published in 1994. A third edition came out in 2010. []
  2. See Gerald Postema, Law’s Autonomy and Public Practical Reason, in, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996); Joseph Raz, Postema on Law’s Autonomy and Public Practical Reasons: A Critical Comment 4 Legal Theory 1 (1998). Recent discussion of this debate can be found in Margaret Martin, Judging Positivism (Oxford: Hart Publishing, 2014), with further discussion in my review of her book in Andrew Halpin, Judging Positivism, 28 Canadian Journal of Law and Jurisprudence 461 (2015). []
Cite as: Andrew Halpin, What Law Do Legal Theorists Need to Know?, JOTWELL (March 17, 2017) (reviewing M. Sornarajah, Resistance and Change in the International Law on Foreign Investment (Cambridge University Press, 2015)), https://juris.jotwell.com/what-law-do-legal-theorists-need-to-know/.