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Constitutional Norms And Law’s Rule: Responding To The Subversion Of Democracy

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,1 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,2 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.

  1. See Ganesh Sitaraman and Daniel Epps, How to Save the Supreme Court, 129 Yale L.J. 148 (2019).
  2. I say “somewhat” because the author navigates very well between the Scylla of strictly formal, procedural conceptions, and the Charybdis of some substantive conceptions guilty of conceptual overreach.
Cite as: Gilberto Morbach, Constitutional Norms And Law’s Rule: Responding To The Subversion Of Democracy, JOTWELL (November 15, 2021) (reviewing Gerald J. Postema, Constitutional Norms—Erosion, Sabotage and Response, __ Ratio Juris__ (forthcoming, 2021), available at SSRN), https://juris.jotwell.com/constitutional-norms-and-laws-rule-responding-to-the-subversion-of-democracy/.

False Necessity and the Political Morality of Tort Law

Sandy Steel, On the Moral Necessity of Tort Law: The Fairness Argument, 41 Oxford J. of Leg. Stud. 192 (2021).

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.1

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,2 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.

  1. Some recent versions of these (or closely associated) arguments are Andrew S. Gold, The Right of Redress (2020); John C. P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs (2020).
  2. See, e.g., Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (2009).
Cite as: Felipe Jiménez, False Necessity and the Political Morality of Tort Law, JOTWELL (October 15, 2021) (reviewing Sandy Steel, On the Moral Necessity of Tort Law: The Fairness Argument, 41 Oxford J. of Leg. Stud. 192 (2021)), https://juris.jotwell.com/false-necessity-and-the-political-morality-of-tort-law/.

One Less Reason to Believe There is A Moral Duty to Obey the Law

Hasan Dindjer, The New Legal Anti-Positivism, 26 Leg. Theory 181 (2020), available at Cambridge University Press.

Law claims supremacy in determining behavior; officials act as if law subjects have moral obligations to do what the law requires them to do. However, it has proven notoriously difficult to defend the idea that there is a general moral duty to obey the law, even in a democracy. Traditional arguments in political philosophy using general considerations have run into a number of difficulties. Recently, hope of bypassing those difficulties has come from what Dindjer calls the “one-system view” of law presented by a new school of anti-positivism. As Dindjer interprets this view, it holds that legal norms and moral norms belong to the same normative system.1 It follows that a legal obligation just is a kind of moral obligation; and so, there is always a moral duty to obey the law. (The one-system view applies to other legal incidents as well, such as legal powers and legal privileges.)

Dindjer sets out to show that the one-system view of law so understood is untenable by finding counterexamples in familiar legal content or, in some cases, possible legal content. Unlike traditional critics of anti-positivism, Dindjer does not simply trot out legal requirements that are egregiously evil and laws that are outrageously unjust; in fact, he rarely mentions them. Many of his exemplar laws are morally flawed, but in subtle and familiar ways. Sometimes they are flawed only at the periphery because of over-inclusiveness.

The obvious objection to Dindjer’s procedure is to claim that he is begging the question against the one-system view in his identification of actual and possible legal content. He works hard to reply to this charge. My take on this is that Dindjer’s counterexamples of legal content are often so familiar to law students, scholars, and practitioners that it is fair to say that anyone claiming that they are not part of the law of familiar legal systems is employing revisionist conceptions of legal incidents and law. To accept these conceptions requires a compelling argument; and, to my knowledge, one has not yet been supplied.

Moreover, Dindjer does a good job of defending an independent reason for rejecting the one-system view: it has no tenable way of distinguishing legal norms from moral norms that are not part of law. His principal targets here are proposals by Mark Greenberg and the Ronald Dworkin of Justice for Hedgehogs.

In short, Dindjer does a convincing job of showing that the one-system view of law, at least as he presents it, is not a viable way of establishing a moral duty to obey the law, because it is not a viable way of establishing that political obligation is entailed by the nature of law. It is not a viable way of establishing that political obligation is entailed by the nature of law because it is not a viable account of the nature of law. It is this last point that Dindjer is particularly interested in making.

  1. Dworkin is named as one of this school. For a different take on Dworkin’s version of the one-system view, see Hillary Nye, The One-System View and Dworkin’s Anti- Anti-Archimedean Eliminativism, 40 L. and Phil. 247 (2021) available at Springer.
Cite as: Barbara Levenbook, One Less Reason to Believe There is A Moral Duty to Obey the Law, JOTWELL (September 14, 2021) (reviewing Hasan Dindjer, The New Legal Anti-Positivism, 26 Leg. Theory 181 (2020), available at Cambridge University Press), https://juris.jotwell.com/one-less-reason-to-believe-there-is-a-moral-duty-to-obey-the-law/.

Against Jurisprudence’s New Metaphysical Focus

Brian Leiter, Critical Remarks on Shapiro’s Legality and the ‘Grounding Turn’ in Recent Jurisprudence (October 15, 2020), available at SSRN.

There are two overlapping complaints often offered about contemporary jurisprudence: the first is that it is too much aimed at an audience of (other) philosophers rather than an audience of legal practitioners;1 the second is that it is too dependent on advanced theory to be accessible to the average lawyer and legal academic. Brian Leiter’s recent SSRN post, Critical Remarks on Shapiro’s Legality and the ‘Grounding Turn’ in Recent Jurisprudence (which he indicates may become part of a forthcoming monograph (P. 1)), offers a response relevant to the second concern, and perhaps the first as well.

Leiter’s basic argument is that Scott Shapiro’s influential work, Legality,2 reflects an unfortunate turning away from H. L. A. Hart’s basic insights about law and theorizing about law, and towards unnecessary metaphysics. In Legality, Shapiro put forward a “planning theory” of law. Leiter’s critique of the book goes not only to that substantive result, but also to Shapiro’s methodological approach. In part, Leiter’s objection is a variation of one he has offered a number of times before:3 that Shapiro purports to be offering a conceptual analysis of law, and Leiter believes that this is a faulty methodology (for philosophy in general, and legal philosophy in particular). (Pp. 5-8.)

The other part of Leiter’s concern4 – and the one on which the present discussion focuses–is Shapiro’s turn towards metaphysical language and argument. As Leiter points out (P. 1), Shapiro early on in his work characterizes analytical legal philosophy as being about the “metaphysical foundations” of law,5 in particular, that one must (Shapiro says) “know which facts ultimately determine the existence and content of legal systems.”6 Leiter questions whether this is the right direction for legal philosophy to take. He rightly focuses on a strange passage in Legality; Shapiro writes: “In order to prove conclusively that the law is thus-and-so in a particular jurisdiction, it is not enough to know who has authority within the jurisdiction, which texts they have approved, and how to interpret them.”7 Leiter asks: why would that not be enough?; why would questions about “ultimate determination” be necessary, or even helpful, if one already knew which texts were authoritative and how to interpret them? (Pp. 9-10.)

While contemporary (English-language) legal positivists see themselves as working within a broad tradition created by H. L. A. Hart,8  much current work arguably takes a distinctively different tack from Hart’s. In his major work, The Concept of Law, Hart makes a point of avoiding metaphysical, or metaphysical-sounding, questions. Regarding the traditional jurisprudential starting point, the question “what is law?,” Hart makes the (Wittgensteinian) move of changing the focus, refusing to answer the question, but wondering instead what motivates the question (Hart argues that the motivations are determining the relationships between law, on one hand, and sanctions, rules, and morality, on the other).9

Leiter complains of the way that Shapiro’s work not only does not avoid metaphysics, but seems to emphasize metaphysical analysis even when it is neither accurate nor beneficial. As he points out, Shapiro’s attempts to characterize the legal positivism vs. natural law debate in terms of “grounding” comes out poorly. As Leiter shows, the views of actual legal positivists do not fit Shapiro’s characterization as believing that “all legal facts are ultimately determined by social facts alone,”10 and at least one important natural law theorist (Mark Murphy) is excluded by Shapiro’s characterization of natural law theorists as believing that “legal facts are ultimately determined by moral and social facts.”11 A more accurate demarcation of the debate would require no references to “grounding” or “ultimate facts”: “Some legal philosophers … believe that no norm is legally valid except in virtue of its sources … [or] in virtue of the conventional practices of officials.” (P. 12, footnote omitted.) Those philosophers are legal positivists; those who reject that view are natural law theorists.

It may be that even if contemporary jurisprudential discussion rid itself of all references to grounding, supervenience, ontology, and metaphysics, jurisprudential works might still be too abstract or esoteric for the average lawyer. At the least, though, as Leiter shows, legal philosophers should remove metaphysical language which serves only to distort or distract from the true underlying issues.

  1. See, e.g., Roger Cotterrell, Sociological Jurisprudence 15-72 (2018); William Twining, Legal R/realism and Jurisprudence: Ten Theses, in Elizabeth Mertz, Stewart Macaulay and Thomas W. Mitchell (eds.), The New Legal Realism, Volume I 121-246 (2016).
  2. Scott Shapiro, Legality (2011).
  3. See, e.g., Brian Leiter, Naturalizing Jurisprudence 121-99 (2007).
  4. Leiter additionally gives a persuasive rebuttal of Shapiro’s portrayal of H. L. A. Hart’s views about rules, practices, and the rule of recognition. (Pp. 16-20.)
  5. Shapiro, supra note 2, at 2 (emphasis in original.).
  6. Shapiro, supra note 2, at 25 (emphasis in original.).
  7. (P. 9) (quoting Shapiro, supra note 2, at 25.).
  8. See H. L. A. Hart, The Concept of Law (2012).
  9. Hart, supra note 8, at 1-7; see also Brian Bix, Questions in Legal Interpretation, in Andrei Marmor (ed.), Law and Interpretation 137-54 (1995), available at Academia.
  10. (P. 11) (quoting Shapiro, supra note 2, at 27 (emphasis in original, footnote omitted.)).
  11. (P. 12) (quoting Shapiro, supra note 2, at 27 (footnote omitted)); see id at 408-09, n. 28 (on Mark Murphy’s not fitting the characterization.).
Cite as: Brian Bix, Against Jurisprudence’s New Metaphysical Focus, JOTWELL (August 2, 2021) (reviewing Brian Leiter, Critical Remarks on Shapiro’s Legality and the ‘Grounding Turn’ in Recent Jurisprudence (October 15, 2020), available at SSRN), https://juris.jotwell.com/against-jurisprudences-new-metaphysical-focus/.

Did H.L.A. Hart, of All People, Neglect Power-Conferring Laws?

Matthew H. Kramer, Hart on Legal Powers as Legal Competences, 19 Univ. of Cambridge Fac. of L. Res. J. __ (2021), available at SSRN.

As Professor Matthew H. Kramer states at the beginning of his rigorous, insightful analysis, Hart on Legal Powers as Legal Competences, “[a]s virtually everyone among the ranks of present-day Anglophone legal philosophers is aware, one of the chief complaints about Austin by Hart was that the former theorist had disregarded and obscured the major role of power-conferring norms in the structures and operations of legal systems.” (P. 1.) Indeed, Austin’s preoccupation with duty-imposing laws contrasted with his neglect of laws that confer powers, and H.L.A. Hart started his own quest for an adequate concept of law by rejecting his predecessor’s mistake. But what if Hart himself was guilty of a similar sin, at least to some extent?

Before taking up on that challenge, Kramer goes on to explore in some detail (1) Hart’s critique of Austin — in his distinction between power-conferring and duty-imposing laws — and (2) possible rejoinders from Austin defenders.

Hart not only showed that (a) “whereas duty-imposing laws establish unconditional requirements, the requirements specified by a power-conferring law are conditional on someone’s wishing to exercise the power that is conferred” (P. 5); he also showed that (b) while duty-imposing laws normatively close off opportunities by prohibiting certain modes of conduct, laws that confer powers expand opportunities by presenting individuals with ways of realizing their wants, and that (c) the very practice of legal officials — their legislative or administrative or adjudicative activities — presupposes laws that confer on these officials the powers which are necessary for such activities.

Is there a way out? Could a defender of Austin retort to Hart by, for example, reconstructing power-conferring laws as duty-imposing laws? Laws specifying the procedures for some legal arrangement to be obtained, by that view, could be understood as duty-imposing laws carrying a threat of sanction for nonconformity. According to Kramer, true, Hart should have acknowledged that “nullity is sometimes functionally equivalent to a sanction that is designed to steer people away from certain modes of behavior” (P. 7)—but only because all that was needed for him to maintain was that the function of many power-exercising conditions is not that of deterring undesirable conduct, but that of supplying the normative frameworks of various activities and enterprises. Besides, power-conferring rules, by their very type, entail the provision for nullity already in their structure — such provision is not attached to the rule like a sanction would be.

What if power-conferring laws are reconstrued as parts, as elements of laws that impose duties? Such a view can come in a moderate version—according to which power-conferring norms are fragments of veritable laws which impose duties—and an extreme one—according to which complete laws are not addressed to citizens, but direct officials to apply sanctions under certain conditions. According to Hart, while these theses do not fail on any logical or formal ground, they misrepresent the distinctiveness of law’s framework: power-conferring norms, after all, are central to the very existence of any legal system as such. You can interpret power-conferring norms like that. But why would you go for a lesser account of the object you are trying to explain?

Given all that—Hart’s powerful critique, grounded on the attribution of a fundamental role to norms that confer powers—it might come as surprise to learn that Hart himself ended up neglecting power-conferring norms in some ways.

First off, while Hart is famous for his distinction between the internal and the external points of view, Kramer maintains that he should have presented an account of the internal viewpoint of powerholders in his theorizing. In The Concept of Law, we can only find attempts to reconstruct the perspective of those who accept norms that impose duties. The internality of the internal point of view, according to Hart, presupposes that a person who accepts some norm N “is generally disposed [1] to comply with N’s requirements insofar as they are applicable to her conduct, and is also generally disposed [2] to criticize any contraventions of those requirements by other people, and is likewise generally disposed [3] to acknowledge the appropriateness of censure directed against her on any occasions when she herself has—perhaps unwittingly—contravened N.” (Pp. 15-16.) To speak of deviations, of pressure for conformity, is to speak of norms that impose duties — and it is not exactly easy to adjust this analysis of the internal point of view to the structure of power-conferring rules.

One possibility, according to Kramer, would be to direct elements [1], [2], and [3] of the internal point of view not to the (power-conferring) norm itself, but to acts of exercising the powers that have been conferred by the respective (power-conferring) norm. Another possibility would be to modify [1], [2], and [3], formulating them as the dispositions comprising the perspective of someone “who accepts a norm that imposes a duty to exercise some specified power in contexts where doing so will plainly be beneficial and legitimate.” (P. 18.) Sure, Kramer himself acknowledges that these are not definitive solutions to these problems; his main focus, after all, is Hart’s own neglect of power-conferring rules: a “remarkable” oversight “by a philosopher who did so much to draw the attention of his fellow philosophers to the import of power-conferring norms.” (P. 20.)

This oversight reoccurs in the final chapter of The Concept of Law, where Hart attempted to refute voluntarist theories of international law. While Hart was right to say that the norms under which a state imposes obligations on itself cannot derive their obligatoriness from self-imposed obligations, he failed to acknowledge the power-conferring — not duty-imposing — character of these norms. The same oversight is present in Hart’s reflections on necessary and sufficient conditions for the existence of a legal system: by submitting that the role of citizens in maintaining the operations of a legal system can consist in mere compliance with duty-imposing laws, Hart once again erred by neglecting the importance (and the very distinctive framework) of power-conferring norms.

While Professor Kramer’s essay can be taken as a sharp critique, it is yet another instance of his responsible and thoughtful engagement with Hart’s jurisprudence. There is no greater tribute than that.

Cite as: Gilberto Morbach, Did H.L.A. Hart, of All People, Neglect Power-Conferring Laws?, JOTWELL (July 8, 2021) (reviewing Matthew H. Kramer, Hart on Legal Powers as Legal Competences, 19 Univ. of Cambridge Fac. of L. Res. J. __ (2021), available at SSRN), https://juris.jotwell.com/did-h-l-a-hart-of-all-people-neglect-power-conferring-laws/.

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Understanding Bentham’s Theories of Meaning and Publicity

Professor Gerald Postema’s new book, Utility, Publicity and Rights, offers a brilliant set of essays on Jeremy Bentham’s jurisprudence, complementing his previous works. In Jeremy Bentham and the Common Law Tradition, Postema departed from received interpretations that misread Bentham in two ways: first, decoupling Bentham’s normative moral and political theory from his jurisprudence and failing to explain the foundational role of utility in his account of the nature of law; second, underestimating the impact of Bentham’s legal positivism in practical reasoning and adjudication.1

Like his previous work, Postema’s new book is a major contribution to the pursuit of integrity in Bentham’s jurisprudence. One of its merits is that it not only builds on the principle of utility but also unpacks two less known while no less foundational doctrines in Bentham’s philosophical system: his theory of meaning and his psychological theory.2 The book is divided in two parts. The first focuses on Bentham’s basic philosophical commitments. Chapter 1 introduces his account of language, epistemology, and ontology, offering a quasi-pragmatist interpretation of his theory of meaning. Chapter 2 turns to Bentham’s psychological theory to single out the self-regarding interests and social motives that can play a role in one’s individual and social life. The rest of the first part discusses Bentham’s utilitarian theory of value, with special reference to his expressivist meta-ethics (chapter 3), his theory of publicity (chapter 4), his account of equality (chapter 5), and the role of universal interests in Bentham’s moral and political theory (chapter 6). Postema describes these elements as integral parts of the meaning of utility, which play a foundational role in understanding the specific topics of the second part.

This part is dedicated to more concrete legal themes. Chapter 7 discusses the historical development of Bentham’s critique of common law jurisprudence, including an analysis of early texts in which he intended to reform instead of abolishing it. Chapter 8 situates Bentham’s command model of law in a historical context, emphasizing the revisions to the model that he made in his long career. Chapter 9 analyses Bentham’s account of evidence and the role of probability in the determination of legal truths beyond sensorial experience. Chapter 10 revisits Bentham’s forceful objections to rights language in politics and constitutional law, with an attempt to take Bentham’s critique seriously while offering a normative reply. Chapter 11 discusses the place of law in the global order. Chapter 12 attempts to make Bentham’s conception of the rule of law explicit, unpacking his views on publicity to make sense of the impact of this value on legal practice and legal reasoning. And chapter 13, finally, explains how the value of publicity provides an integrative reading of the previous chapters.

The book begins with an intriguing analysis of Bentham’s theory of meaning, which is based on a distinction between “real” and “fictitious” entities. Fictitious entities should not be confused with mere “fictions”, which “play no proper role in thought.” (P. 6.) While Bentham regards fictions as “fabulous” beings that deceive interlocutors when they are portrayed as real entities, he preserves a crucial role for the fictitious entities that are embedded in our language and organize our thought. Without the latter, “no thought beyond that of the most primitive and non-human would be possible.” (P. 5.) Fictitious entities are rational devices which figure among the “ontological commitments of ordinary language”. They play an essential role in Bentham’s epistemology, in virtue of the “relationship they bear to real entities and their participation in the world that they populate.” (P. 6.) On Bentham’s philosophical system, ontology and epistemology are intertwined. (P. 9.) His epistemology begins with the empiricist assumption that “all knowledge has its source in human experience.” (P. 9.) Nevertheless, perception is not sufficient to produce knowledge, because the judgment that an object exists “in the world beyond impressions and ideas” presupposes the exercise of what Bentham described as the “active powers of the mind.” (P. 10.)

On Bentham’s ontology, it is only when we exercise these mental powers, i.e., we engage in the activity of analysis, that we can achieve a proper understanding of the objects we purport to describe. When we turn to nature to understand “real” or “physical” entities, our sensorial experience presents to our mind “a large number of simple ideas, produced by bits of extra-mental reality”, which need to be “bundled together” through these mental activities. It is only “after this analysis or partitioning of primitive sensorial experience, and its subsequent synthesis”, that we can understand these bundles of ideas. (P. 11.) A similar move occurs when we analyze the architecture of language, which begins with singular propositions, but require abstraction to be transformed into words, through their association with fictitious entities that are the product of analysis. (P. 11.) To determine the meaning of any entity, including “real” entities to which we have access through perception, requires an “aggregate of fictitious entities.” (P. 13.) Our unarticulated perceptions, which constitute a psychical reality, are like the physical reality that constitute the “raw materials… on which the active mind operates.” (P. 13.) To make sense of them, as experiences of the world, we resort to fictitious entities like “space and time, colors and sounds, relations and properties, persons and minds, duties and rights” etc. (P. 20.) As Postema explains, “our minds have constructed these fictitious entities over time to understand and manage our interactions with the world in which we live, a world that is planted firmly in the physical and psychical base.” (P. 14.) This account of language and meaning is a form of “quasi-pragmatism” because our use of these fictitious entities stems from the practical commitments we must undertake to achieve a meaningful experience of our world. We need these entities, for Postema, because the domain of “human experience” needs to be “ordered and rendered meaningful by thought” (P. 23.), and this ordering cannot be achieved by mere representational acts that duplicate mind-independent objects in our minds. Bentham’s fictional entities are, thus, constructed by participants in linguistic social practices who develop an artificial vocabulary to understand the relationships among properties, events, and the feelings and emotions we can apprehend through our senses. Conceptual vocabularies are not established in a second-order metaphysical realm, for their content is, instead, responsive to these social practices.

To transform mere sensorial perception in experience, we must resort to fictitious entities that are constructed through the exercise of the active powers of the mind. According to Postema, fictitious entities are “rooted in an independently existing material world” but not dependent on a priori principles or categories, in a Kantian sense. On Postema’s reconstruction, Bentham’s ontology is a “combination of empiricist, realist, and quasi-pragmatist elements.” (P. 16.) To construct the artificial vocabulary made possible by these entities, Bentham resorts to two types of definitional activity: first, definition per genus et differentiam, in which one clarifies a term by subsuming it into a genus or locating properties that distinguish it from other species; second, through the technique of paraphrasis, in which we explore relations among concepts to explain a concept’s genealogy, tracing it back to the aspects of the physical world that provide the warrant of its use. (P. 19.)

As Postema explains,

Fictitious entities … all exist; they are fictitious only in the sense that they do not exist as physical entities. The mistake we make about fictitious entities is not the mistake of attributing existence to them, but rather of thinking that we can confirm their existence by just looking. Their ontological status is different from physical objects (or rather space-time material movings). Moreover, their ontological legitimacy, and their meaningfulness (in propositions), is made manifest through skillful deployment of the technology of paraphrastic definition. (P. 21.)

Postema interprets Bentham, thus, as a linguistic pragmatist avant la lettre. Instead of a representationalist theory of meaning, Bentham supposes that a large part of our knowledge comes from inferences and analysis, through the social use of active powers of the mind. The sense of the concepts we use stems from the implicit fictitious entities we construct to make sense of our world and to make it possible to understand and gain knowledge by rational means.

I believe that Postema’s quasi-pragmatist reading of Bentham is reinvigorating. It lies at the heart of the value of publicity, which constitutes another central topic of the book. Postema’s reconstruction of the Benthamite theory of meaning makes sense of the claim that publicity is “the very soul of justice” (P. 267), and articulates the infrastructure that this principle provides for the rule of law. (P. 268.) Publicity is a source of security against misrule, because it creates a rational environment and an institutional structure in which governmental officials can be held accountable for their responsibilities and develop the proper “moral aptitudes” required by the commitments to their official roles. (Pp. 269-271.) It explains why Bentham’s motto “obey punctually and censure freely” should not be taken at its face-value, since part of the duties of a free government is to “‘cherish’, encourage, and enable the popular disposition to resistance.” (P. 274.) It invites us to revise our first impression that Bentham’s command theory of law fails to impose “leges in principem” (P. 279) or render the sovereign accountable to the law. (P. 288.) It shows, in addition, the failure of the Hartian interpretation, which holds that Bentham’s thesis that law exists in virtue of the “habit of obedience” of subjects implies a passive attitude toward an unaccountable sovereign. As Postema explains, “habit is not a thoughtless, rote, and strictly singular responsiveness to commands, but rather a co-ordinated collective response to the efforts of those in power.” (P. 281.)

It makes sense, in addition, of Bentham’s skepticism about classical common law, which he described as “dog-law” because its vocabulary depended on mysterious fictions that allowed judges to “impose penalties with no warning and no public rationale, treating citizens like creatures who understand only the lash.” (P. 277.) The failure of the purported rationality of common law was a failure of publicity, because it depended on an aristocratic professional vocabulary that withdrew from the ordinary citizen the active powers of mind which are necessary to make a judgment about the concepts and values lawyers employ. Common law was dog law, for Bentham, because he thought that classical common lawyers made use of fictions, rather than traceable and warranted fictional entities. The fictional entities, or intellectual commitments, on which a competent participant in social practices must rely were not shared with or available to the ordinary public, rendering the lawyers an unaccountable and irresponsible caste.

The interaction between active powers of the mind, or inferential capacities, and public processes and institutions, provides us with the equipment to understand Bentham’s apparently cynical dismissal of the language of rights in politics and constitutional law. The rhetoric of rights, on Bentham’s view, is stained with indeterminacy that renders it impossible for one to make a rational and objective judgment about the public justification of a legal or political claim. (P. 235.) The rationality of legal processes depends, for Bentham, on the assumption that Postema described as the demonstrability thesis, i.e., the thought that an action “is publicly justifiable only if it can be grounded in arguments that any competent member of the community in question would accept as conclusive support for it.” (P. 236.)

The connection between publicity and inferential capacities shows also how to criticize the demonstrability thesis, or how to turn Bentham against himself, as Postema does when he argues that what democracy requires is not uncontroversial or always determinable rules, but rather a participatory and discursive practice, above all a reflective practice, in which citizens can engage with their interpretive capacities to make sense of their common norms. (Pp. 239-242.)

I will probably not do justice to Postema’s extraordinary achievements in this brief review. But I am glad that Bentham finally received, after almost two hundred years of his death, the systematic, insightful, and generous interpretation he deserves.

  1. Gerald Postema, Jeremy Bentham and the Common Law Tradition (2nd ed. 2019).
  2. According to Postema, Bentham believes that human motivations are constituted by complex affections that are adaptable because they are “capable of responding to social circumstances and education. (P. v.)
Cite as: Thomas Bustamante, Understanding Bentham’s Theories of Meaning and Publicity, JOTWELL (May 28, 2021) (reviewing Gerald J. Postema, Utility, Publicity and Rights: Essays on Bentham’s Moral and Legal Philosophy (2019)), https://juris.jotwell.com/understanding-benthams-theories-of-meaning-and-publicity/.

Societies of Angels and Non-Coercive Legal Systems

A number of prominent contemporary legal philosophers have invoked thought experiments about societies of angels in support of an argument that a non-coercive legal system is possible. The basic scenario is this: morally perfect angels would need law to coordinate their actions and resolve disputes, but since they voluntarily comply with the dictates of law (given their moral perfection), the legal system can operate without coercion.1

An obvious objection to these types of arguments is that talk of societies of angels (SoAs) has no bearing on human legal systems (never mind that it is a fantasy). Undeterred by such skepticism, legal philosophers continue to construct arguments on this imagined scenario without explaining why it merits being taken seriously. From Angels to Humans: Law, Coercion, and the Society of Angels Thought Experiment, by Lucas Miotto, robustly defends these arguments as sound. This superb essay is clear, astute, and balanced. Indeed, it is so balanced that, though setting out to defend SoA arguments, in closing Miotto moves “the discussion away from angelic scenarios.”

At the outset, Miotto considers four alternative interpretations of the argument that non-coercive legal systems are possible. Nomologically possible means that humans, given their biological and social requirements, can construct non-coercive legal systems—a position that many legal theorists reject. Logically possible means that non-coercive legal systems are not logically prohibited—which is true but trivial. Metaphysically possible means that a non-coercive legal system is “consistent with the most fundamental metaphysical principles and categories that structure reality.” Finally, conceptually possible means that a non-coercive legal system is consistent with our current, ordinary concepts of the world.

Among these alternatives, Miotto selects metaphysically possible as most consistent with the philosophical inquiry into the nature of law. His aim is to show that “we can (at least) justifiably state that a non-coercive legal system, as depicted in the society of angels thought experiment, is metaphysically possible.” There are various ways to construe metaphysical possibility. His baseline is set by background knowledge and experience (what is actual is metaphysically possible), which also serve as defeasible standards against which to determine the plausibility of claims about metaphysical possibility.

Building on these propositions, Miotto constructs his argument about non-coercive legal systems in societies of angels in a few steps, the first two about actual legal systems and the third about angelic legal systems. First, he observes, the degree of coerciveness varies among legal systems, and less coercion is necessary when people largely comply with the law, which means it is metaphysically possible for legal systems to drastically reduce coerciveness. Second, a substantial amount of law addresses coordination problems and other matters that do not involve coercion.

This brings us to non-coercive legal systems of angels. The basic assumption in these thought experiments is that angels are morally perfect. Miotto asserts that this assumption need not be controversial. “All that is needed is that moral perfection entails that angels would cooperate with one another when cooperation prevents the occurrence of morally bad outcomes and when cooperation helps angels to achieve morally good outcomes.” This assumption, he claims, can be grounded in our experience of morally good people who act cooperatively to achieve good outcomes. Now, if we accept that legal systems tend to reduce coercion when it is unnecessary, and that angels would cooperate with the law, then it follows that angel societies would have non-coercive normative systems.

The only difficult issue, he contends, is whether the cooperative normative systems in SoA are legal systems. To support this characterization, Miotto points out that there is a substantial overlap between the social needs served by legal systems in human societies and in angelic societies:

A society of angels might still have the need to create rules to allocate property, to regulate contracts, wills, taxation, to solve small and large coordination problems related to public goods, political processes, the organization of common space (including the organization of traffic, zoning, signals, etc.), assigning roles, allocating risk, settling disputes, and many other non-trivial activities that fall within the scope of the activities performed by actual legal systems. [emphasis added, relevance indicated below]

This functional overlap with human legal systems justifies characterizing non-coercive angelic normative systems as legal systems.

With this account in hand, Miotto responds to two criticisms of SoA arguments. First, Andrei Marmor objects that the thought experiment is inconclusive because the details of angelic societies are underspecified; more specifically, if angels face prisoner dilemma situations, coercion would be required to insure cooperation. Miotto denies that this is a problem because the angelic legal system can legally require cooperation (which they would comply with per assumption), the cooperative nature of angels would solve the dilemma in favor of cooperation (the best outcome), and the problem of a lack of specificity can be resolved by including more details about angelic societies and legal systems.

Second, Marmor and Dan Priel object that angelic societies are so different—so alien from human societies—that it is not clear anything relevant can be learned from this thought experiment. Miotto’s response is that their societies are not that alien: “What we need to stipulate in the society of angels’ scenario is clear enough: it is a society solely inhabited by creatures that resemble us in every respect except from being much more cooperative and law abiding.”

Let me momentarily pause the recitation of his argument to make a few critical observations about his defense of the SoA scenario. The differences between (imaginary) angel societies and human societies are not just a matter of degree. Not only are humans not moral perfectionists, but moral perfection is possible only if objective truths exist about the right and good (summa bonum) and these truths are universally known by angels and perfectly manifested in the law. After all, if angels pursue moral perfection, but they have differing views of what this requires in a given instance, not only will they disagree among themselves about what is required, but they also will not comply with a law they consider contrary to what moral perfection requires (either the law generally or as applied in a particular instance).2 In these situations, coercion must be applied to force angels to comply with what the law requires.

So the SoA scenario presupposes that angels are moral perfectionists, and it presupposes the truth of natural law and that angels interact in ways that conform to natural law. Angel societies are natural law based (though a number of legal philosophers who invoke SoA are legal positivists who do not accept natural law). Needless to say, human societies are nothing like this heavenly scenario—which entails far more than angels being nicer versions of humans. Nor is it obvious that a heavenly society would need a legal system, since every angel would be doing what is right at every moment anyway. Why would any disputes arise?

Miotto is aware of this objection, which he waves away. “From the fact that angels are morally perfect one could conclude that there would be no need for courts to adjudicate disputes about facts. (But, even if this is true, couldn’t angels have institutions they don’t strictly need? Maybe having a legal system is just more convenient to them.)” If no disputes arise, however, there is simply no use for a legal system with courts. Coordination can be resolved through known rules, duly obeyed by all, and no conflicts will arise.

Now let us return to his argument, which takes a sharp turn following his defense of the validity of the SoA thought experiment. Miotto acknowledges that SoA arguments “won’t tell us whether a legal system for humans could possibly exist without coercion.” A legal philosopher can insist that a metaphysical argument need not tell us whether humans can have non-coercive legal systems, since the aim is to show what is metaphysically (not humanly) possible. But Miotto does not rest on this position. He proceeds to argue based on thought experiments revolving around human legal systems that coercion is a contingent feature of typical legal systems.

His thought experiment posits a society in which all institutions of law enforcement are disabled by a terrorist attack; society will carry on, and legal arrangement will largely be complied with, owing to a sense of solidarity. Miotto admits that human legal systems that lack coercion will not survive for long in this condition, but the point remains that they are possible—which is sufficient to refute the assertion that coercion is a necessary element of legal systems. (What this thought experiment shows is not only that law can exist without coercion, at least temporarily, but also that social order is maintained largely through social factors more so than through the legal system itself.)

Miotto then addresses the obvious objection to his thought experiment, that criminal punishment plays a large role in the legal systems of all societies. In response, he offers a novel argument that a legal system can punish people in a way that is not coercive—thereby maintaining the position that coercion is not necessary. He stipulates that “A salient, and essential, feature of coercive actions is that the coercer does not address the coercee with respect. Coercers do not guide or attempt to guide the coercee’s actions; coercers goad them.” A legal system can punish people for their wrongful actions “without resorting to the kind of disrespectful treatment characteristic of coercive actions. All of these functions could be fulfilled by a non-coercive criminal law system, without stopping the punishment of citizens.” Miotto goes on to argue that criminal systems should punish in non-coercive ways.

A legal system that punishes in ways that treat people with respect is undoubtedly a worthy ideal. But this does not eliminate coercion. Coercion in a legal context simply means forcibly compelling people to do something they would not otherwise willingly do. Requiring someone to pay a substantial fine (under threat of the seizure of their property) or putting them in jail (subject to threat of capture), when they would prefer not to—whether done in a respectful or disrespectful manner—involves coercion.

In closing, I should emphasize that my critical engagement with Miotto’s argument does not detract from the value and quality of his essay. His articulation and defense of the SoA scenario is systematic and thorough, enabling a more incisive examination of the argument. And his use of thought experiments about non-coercive human legal systems moves the analysis on this topic in a potentially fruitful direction. Proponents as well as skeptics of society of angels arguments about non-coercive legal systems will benefit from this fine essay.

  1. See, e.g., Leslie Green, The Forces of Law: Duty, Coercion, and Power, 29 Ratio Juris 164 (2016).
  2. See Brian Z. Tamanaha, Pragmatic Reconstruction in Jurisprudence: Features of a Realistic Legal Theory, __ Canadian J. L. & Juris. __ (2021).
Cite as: Brian Tamanaha, Societies of Angels and Non-Coercive Legal Systems, JOTWELL (May 3, 2021) (reviewing Lucas Miotto, From Angels to Humans: Law, Coercion, and the Society of Angels Thought Experiment, L. & Phil. (2020)), https://juris.jotwell.com/societies-of-angels-and-non-coercive-legal-systems/.

Taking Theory Out of a Participatory Cul-De-Sac

Jeff Pojanowski, Reevaluating Legal Theory, 130 Yale L. J. 1300 (forthcoming, 2021), available at SSRN.

Reevaluating Legal Theory, by Jeff Pojanowski, is a review essay on Julie Dickson’s work on indirectly evaluative legal theory takes in her 2001 book, Evaluation and Legal Theory, and her subsequent writing on the topic. More than this, it situates Dickson’s work within wider jurisprudential debates, preceding and continuing after her contributions. The essay amounts to a detailed guide through the terrain of jurisprudential methodology, which is both informative and stimulating, both cautious and boldly innovative. The reader is invited on a journey to be undertaken with less than favourable weather conditions, taking place under the menacing clouds gathering from the positivist/anti-positivist conflict. The route has been selected not so much as to feature moments of breathtaking vistas, as to require the reader to trudge through disappointing locations which have not lived up to their proclaimed attractions. We have to confront a dead end, or cul-de-sac (Pp. 1300, 1306), as well as admitting to being on the road to nowhere. (P. 1324.) Disappointing as this may be, one has to admire the instructive commentary accompanying each mis-step along the journey. Ultimately, this prepares us for the promise of a brighter destination, which holds out the hope of delivering what previous stopping points have failed to deliver.

Pojanowski characterizes what Dickson has sought to achieve by her indirectly evaluative approach as a dilemma for her: in reconciling within a concept of law “features of law that are (a) necessary or essential to all legal systems, based on (b) what those subject to the legal system find important and significant about law (c) without imposing a morally evaluative filter on those important and significant theoretical necessities.” (P. 1313.) At the heart of this dilemma is the need to bridge the contingent, relativistic, or particularistic perceptions discoverable at (b) with the universal features required at (a). (Pp. 1315, 1320, 1307, 1322.) This is exacerbated by a tension, or even outright conflict, between the participant perception and the theorist perception of what features are significant at (b). (Pp. 1317 n.86, 1319, 1323, 1328.) There is no easy fix available to the theorist so as to be able to impose uniformity on the range of participant perceptions of those features.

If those features of law are not to be identified by a moral filter (as (c) insists), then it appears resort must be had to a social theoretical approach. (Pp. 1304, 1313.) However, Pojanowski’s survey of options on offer in Part II clearly returns the verdict of not plausible. A naturalist approach cannot be squared with the emphasis Dickson places on participants’ perceptions. (Pp. 1317-18.) A hermeneutic approach does not lend itself to the normative neutrality and essentialism required by Dickson. (P. 1319.) Nevertheless, Pojanowski commends Dickson for her “resistance to both the naturalist’s externalist approach to law and the hermeneut’s radical particularity.” (P. 1321.)

Still, Dickson’s basic dilemma remains unresolved. Pojanowski spends a number of pages expanding on the radical particularity and debilitating relativism of deep hermeneutics (Pp. 1321-24), concluding: “What universal, non-normative framework allows Dickson to transcend this particularity is a question unasked and therefore unanswered.” (P. 1324.)

Pojanowski’s own proposal for a way out of the cul-de-sac is advanced unapolegetically from the natural-law side of the conflict where Dickson is found in the opposing camp. Yet it is made without forceful polemics, in a measured and, even, tentative manner. (Pp. 1326, 1329-30.) It relies on a number of steps to break out of the “hermeneutic circle.” (P. 1324.) First, he follows Alasdair MacIntyre’s insistence that the participant’s self-understanding needs to be supplemented by the theorist. (P. 1325.) Secondly, he acknowledges with Charles Taylor the presence of a “value slope” present in theoretical accounts of social behaviour. (P. 1326.) This amounts to “an overarching judgment about the point of the practice” that theorists “cannot help but presume to share with the participants whose actions they seek to understand.” (P. 1327.) Thirdly, he amplifies this teleological aspect with a central case methodology. (P.1327-29.)

Finally, Pojanowski retains the need for a viable social theory which can genuinely present the participant perspective while evaluatively refining its central case as incorporating essential characteristics of law – requiring “a metaphysics and ontology that is richer than reductive naturalism and more realistic and hardheaded than the subjectivity of social constructionism.” (P. 1329.)  For this he suggests the resources of critical realism. (P. 1329-30.) By this point, it is evident that Pojanowski is not resolving but disposing of Dickson’s dilemma, in permitting the directly moral evaluation which she sought to banish at (c).

The culmination of Pojanowski’s approach is found in his proclamation of  a “moral and social universe” shared between theorists and participants in the practice. (P. 1329.) Before this is dismissed as nothing more than resorting to base polemics by the natural-law camp, it is important to note two observations he makes, indicating a less bellicose and more reasonable engagement in debate. One is to suggest that the rejection of moral evaluation within an understanding of law by positivists such as Bentham and Hart was tied into their own wider philosophical commitments, accompanied by a related value slope. (P. 1330-31.) The other is to admit that his approach is tied to his own “moral and even metaphysical commitments.” (P. 1331.)

Given the thoughtful and modest tone of Pojanowski’s proposal, this essay deserves careful attention and should stimulate further exploration of the important issues it raises. Foremost, perhaps, among these is the suggestion that the effective realization of analytical necessity may be conditional upon metaphysical commitment.

Cite as: Andrew Halpin, Taking Theory Out of a Participatory Cul-De-Sac, JOTWELL (April 9, 2021) (reviewing Jeff Pojanowski, Reevaluating Legal Theory, 130 Yale L. J. 1300 (forthcoming, 2021), available at SSRN), https://juris.jotwell.com/taking-theory-out-of-a-participatory-cul-de-sac/.

Beyond Exclusion

J. E. Penner, Property Rights, A Re-Examination (2020).

In my last year of law school, through the dark days of an Alberta winter, I read a book about property law by a young professor visiting from England. It was a dazzling book, brilliant and witty, learned and ambitious. It made clear that the idea of property was the proper subject of philosophical inquiry, something both obvious and marvelous that would repay close attention. That book, The Idea of Property in Law (1997), and its author, James Penner, have stood as a source of inspiration for property theorists (myself included) ever since. Now almost twenty-five years later, James Penner has revisited that account of property in a new book, the aptly-named, Property Rights: A Re-Examination.

What was so striking about The Idea of Property in Law, then and now? The first is its attempt to account for property in terms of its two essential features: the excludability of others from the object of the property right (the thing) and the separability of the thing from its owner. The second is its attempt to reconcile the idea of property as a right to a thing with the idea of property as a correlative jural relation. Penner insisted that property was both relational and a right to a thing and indeed that the relationality of property depended on its thingness. His claim was that the thing (the res) mediates between the duties of non-owners and the rights of owners. Property rights are correlative, on Penner’s account. Unlike other private law rights, they depend on the mediating role of things to achieve that correlativity. An owner may enter into any number of direct, personal relationships with others, individuals who become that owner’s tenants, licensees, buyers. But the owner’s relationship with everyone else is on a different footing, Penner pointed out. They may have no personal relationship with the owner at all: Their relationship to him is only “through his property” and that relationship is regulated by a general duty not to interfere with the property of others. (1997, P. 27.)

Penner’s account was not just a blueprint for thinking about property in terms of exclusion; it also was a devastating attack on a previously dominant contemporary account of property as a bundle of rights. The bundle-of-rights approach had taken the view of property as a right to a thing to be incompatible with a legal understanding of property rights as jural, involving correlative rights and duties. The force of Penner’s attack came not only from showing what bundle of rights theories missed about the nature of property (exclusion and separability) but also from explaining how property was a distinctive, in rem form of jural relation. Bundle-of-rights thinking has never fully recovered.

In Property Rights, A Re-Examination, Penner deepens and extends his account of property with his signature clarity and vigor. In this new book, he argues that the central case of property, ownership of tangible things, has a tripartite structure, composed of a right to exclude and two title-powers, the power to grant possessory licenses and the power to deal with title in a variety of ways, by granting lesser titles in the form of a leasehold or transferring title outright to someone else. (Other forms of property, like intangible choses in action, do not have exclusion as a basic norm, on Penner’s account: intangible property does not require exclusion because, he argues, there is nothing to exclude anyone from.)

There are two important insights in Penner’s book that will continue to guide thinking about property in law for legal theory. The first concerns Penner’s revisionist approach to Hohfeld’s famous analytical framework of jural relations. Penner works out in more granular detail how the correlativity of rights and duties, powers and liabilities in private law is achieved only through what he calls the mediating function of rules—and it is these general rules, not the particular jural relations they generate, that reveal what is important and distinctive about the idea of property. The mediating function of property law consists in property’s use of impersonal, epistemically undemanding rules, chief amongst which is the duty not to interfere with property that is not one’s own. This marks, I think, an important shift in philosophical focus, from the personal, rights-based relations that property generates (how things stand between you and me with respect to a particular thing) to impersonal rules (governing how we relate to things and the general duty of non-interference with things that do not belong to us). Penner’s structural insight about property law is that the latter explain the former. A second insight, made explicit in his new book, is Penner’s view that our common interest in the Earth sets land apart from other things. Our common interest in the planet, our shared habitat, is not adequately served by a system of private property rights in land, he suggests. That is not because we own the Earth in common but because, in a sense, the Earth as our home is inseparable from us. As such, it is not the kind of thing that ought to be treated as the object of property in law. While Penner does not fully explain what it means for the Earth to be a part of us and so not appropriately the object of property rights, he sets out the contours of such an account and why it matters.

Property Rights: A Re-Examination completes the task Penner began a quarter century earlier in The Idea of Property in Law and offers a thicker philosophical foundation for his account of the nature of property and the interests that justify it. In doing so, this book will no doubt serve to inspire another generation of philosophically-minded property scholars.

Cite as: Larissa Katz, Beyond Exclusion, JOTWELL (February 3, 2021) (reviewing J. E. Penner, Property Rights, A Re-Examination (2020)), https://juris.jotwell.com/beyond-exclusion/.