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Private Law and Public Purposes

Steve Hedley, The Rise and Fall of Private Law Theory, 134 L. Quarterly Rev. 214 (2018)

In one sense, contemporary private law theory offers a wide range of approaches. For example, contract law theory includes significant theories whose focus ranges across promise, consent, property, commerce, reliance, choice, and wealth maximization, just to offer a quick sample. In tort law, one also finds theories that emphasize corrective justice as well as theories grounded on the inherent (“formalist”) nature of certain kinds of interactions. Under Steve Hedley’s analysis, however, all of these theories (and the comparable theories of other doctrinal areas within private law) in fact cluster in a narrow category, one that excludes important considerations once considered central to private law theory. In particular, Hedley’s argument is that modern private law theory tends to ignore or discount the purposes the state might try to achieve through law–the use of legislation and regulation in private law areas in order to achieve collective objectives. Hedley goes on to show how this is a relatively recent development, that older writings on private law offered a more central place for public purposes.

If, as current theories claim, private law doctrinal areas are, in fact, essentially about a particular value, or essentially about wealth maximization, or essentially about intrinsic-formalist truth, then what the state does will likely be seen as either irrelevant or ill-advised. State action will undermine the innate wisdom of the efficient market or the efficiency-increasing judgment of judges, and will distort outcomes away from what corrective justice requires.

Another reason why contemporary theories of private law–theories that purport to apply to particular areas of law across (all) jurisdictions–might avoid focusing on legislation and regulation is that such state actions inevitably vary from one legal system to another, often in very significant ways. And that variation threatens the (express or implied) universal claims of private law theory. (In Contract as Promise (1981, 2nd ed. 2015), just to choose one example, Charles Fried offered us a promissory theory of contract law, not a promissory theory of American contract law.) For Hedley, who is skeptical of the universal claims of private law theory, this is all the more reason to emphasize the collective purposes present variously in different countries’ private law.

It would also be a positive under his analysis that discussions of private law focus more on the details of everyday practice. Contract law theory should have more to say about the boilerplate that dominates consumer contracts through its presence in standard forms and online agreements. Tort law theory should have more to say about insurance that sharply affects accident compensation and accident deterrence, the regulation that frequents supplements or overrides litigation to set standards of behavior, and the use of state accident compensation schemes that in many countries and in many contexts is an alternative to tort litigation.

Hedley makes the important point that scholars from different jurisdictions may view the law in distinctly different ways. As he notes, there are often sharp variations in perspective between lawyers in common law and civil law countries. Even among common law jurisdictions, the differences can be significant–at times in ways that even affect Hedley’s own argument. And this is the basis for one small quibble. Hedley expresses concern that academics’ focused on “explaining” law will crowd out necessary work by scholars focused on improving law. There are some grounds for thinking that analytical work on private law has pushed aside prescriptive/normative work in Britain or on Continental Europe, or at least that it did so in the past. However, this fear (or accusation) is entirely ungrounded when thinking about American scholarship, where prescriptive/normative work has been, and continues to be, vastly more numerous, and vastly more influential, than analytical work.

Cite as: Brian Bix, Private Law and Public Purposes, JOTWELL (December 5, 2019) (reviewing Steve Hedley, The Rise and Fall of Private Law Theory, 134 L. Quarterly Rev. 214 (2018)), https://juris.jotwell.com/private-law-and-public-purposes/.

The Internal Point of View Restored

The seminal scholarship of H.L.A. Hart still looms large over much of jurisprudence. There are countless commentaries, challenges, exegeses, celebrations, and elaborations on offer. For this reason, it takes an incisive mind to add to Hart’s account. That is precisely what Philip Pettit does. His recent article takes a careful look at one aspect of Hart’s Concept of Law that is often mentioned in passing, sometimes criticized, but never carefully retraced and fleshed out: his genealogy of law.

In his article, Social Norms and the Internal Point of View: An Elaboration of Hart’s Genealogy, Pettit takes on some of the lingering questions surrounding Hart’s genealogy. How do primary rules arise? Are they any different from customs, habits, or other forms of convergent behavior? What, exactly, constitutes the internal point of view? If one acts in conformance with a community out of fear for social sanctions, can one be said to occupy the internal point of view? Perhaps most importantly–what, exactly, does Hart’s origin story of law tell us about the distinctions between law and custom, norm and habit? Pettit takes us through each of these questions as he reconstructs a genealogical account of how pre-normative society (“Prenormitania”) could be imagined to have evolved into Hart’s pre-legal society (“Normitania”). This sheds new light onto Hart’s own genealogy, which of course takes Normitania as a given and focuses on how it develops into a legal society (“Lexitania”).

I suspect a large reason for the relative neglect of Hart’s genealogy is a lack of appreciation for the sophistication of the genealogical method. Pettit starts his article by setting out its virtues and highlighting how radical an approach it was at the time, when Hart was writing in an intellectual world shaped by J .L. Austin. Genealogies offer plausible explanations of how a concept might be imagined to have come about. It presumes that there is such a thing as a point of a concept and seeks to find out what that point is.

Genealogy offers distinct analytical advantages. It gives an account of a concept in terms of characteristics, motivations, and interests that persons are granted to have. Against those granted assumptions, it then provides a functional analysis of the concept in question. As such, genealogical analysis offers a method for deriving what is functional from what is not functional or only functional at a lower level.1 Its abstract or fictional approach prevents a confusion between functional explanation and actual fact. As Alasdair MacIntyre explains, the genealogist uses fiction precisely so that she can escape the fate of the theorist who is “inescapably imprisoned within metaphors unrecognized as such.”2 Pettit takes this method seriously, and his article merits careful reading for that reason.

Hart’s genealogy describes pre-legal society as one without legal institutions: no courts, legislature, or officials.3 In this society, “the only means of control is that general attitude of the group towards its own standards of behavior.” (P. 91.) These attitudes shape “primary rules of obligation,” which include prohibitions on violence, theft, and deception, inter alia. As long as a majority of the pre-legal society accepts the rules, they live in a stable environment of “unofficial rules” resembling our own rules of etiquette. Over time, rules about rules (secondary rules) become necessary and thus a legal system develops.

Pettit offers insight into the nature and origin of those unofficial norms that Hart take for granted: primary rules of obligation. Hart does mention that these rules arise out of communal attitudes, and that they can only be maintained in communities with close ties of kinship, common sentiment, and belief. But how? And why is that important?

Pettit gives a carefully considered answer. Informal rules and the attitudes that shape them arise where cooperation is necessary. Repeated cooperation implies relational regularities, and with them, relational expectations. When a community forms a relatively familiar environment for complex patterns of cooperative regularities, reputation (and expectations it engenders) becomes multilateral. An economy of esteem develops.

Is convergent behavior based on concern for reputation and esteem sufficient to constitute primary rules in Hart’s sense? No. Hart makes it clear that at least some part of his pre-legal society occupies the internal point of view. And, argues Pettit, this means that rule-following no longer has a causal-instrumental character for these individuals. Rather, the rules have been accepted and internalized–they themselves, rather than the consequences of following them, are the source of motivation.

When a norm has been internalized, a community has come to occupy a general attitude toward it. At this point, it becomes possible to distinguish between outsiders and insiders–the external and internal point of view. The internal point of view exists where norms are ratified: community members can confidently avow that all members of their community approve of, and follow, the norm in question. Such avowal implies commitment: members inviting each other to hold them accountable for living by the norm in question. This, argues Pettit, is the internal point of view. An implied consent to being held accountable, rooted in one’s own motivation to follow the rules in question.

This is an important insight. Recent scholarship on the internal point of view has hollowed out the concept to the point where it often amounts to some causal-instrumental calculus by a rational agent. Pettit recovers Hart’s original insight: the internal point of view is that perspective from which a rule itself is the source of motivation. This precludes coarse instrumental rationality from capturing the notion accurately and demands a re-evaluation of our assumptions about rule internalization.

  1. Bernard Williams, Truth and Truthfulness: An Essay in Genealogy 20-30 (2002).
  2. MacIntyre, Three Rival Versions of Moral Inquiry 32-43 (1988).
  3. H.L.A. Hart, The Concept of Law 91-93 (3rd ed. 2012).
Cite as: Alma Diamond, The Internal Point of View Restored, JOTWELL (November 8, 2019) (reviewing Philip Pettit, Social Norms and the Internal Point of View: An Elaboration of Hart’s Genealogy, 39 Oxford J. Legal Stud. 229 (2019)), https://juris.jotwell.com/the-internal-point-of-view-restored/.

Juridification Without Legality

John Gardner, The Twilight of Legality, 43 Australasian J. of Legal Phil. 1 (2019).

The death of John Gardner this summer, at age 54, is a fearful loss. This generous, multi-talented, and much-loved man was a world-renowned figure in several fields of jurisprudence, including not only the general topic of the nature of law but also in the special theories of criminal law, tort, and sexual assault. He was one of the pillars of Oxford’s outstanding strength in the philosophy of law. What irony that one of the last of his writings was titled The Twilight of Legality.

The article itself is something of an elegy for the imminent passing away of a still familiar self-conception of the law, and of the lawyer’s calling, that some will think already archaic. This is a conception of the lawyer as not merely a service-provider, but as public citizen having a special obligation to foster legality as a public good. This obligation in turn entails seeking justice according to law, and not merely justice between parties. John was conscious that his remarks might come across as cultural criticism, but he framed his subject as a philosophical puzzle: how to reconcile the trend toward ever-greater juridification of everyday life with legality, that is, with the rule of law? “Juridification” meaning: the manufacture of laws and legally enforceable non-law norms—especially contracts binding consumers to terms set in boilerplate language dictated by corporations.

At first glance no puzzle is apparent. More laws and more legally enforceable norms means more law to be ruled by, and more law to be ruled by means more rule of law, no? No. Beneath this specious surface, juridification conceals trends whose confluent effect is to erode the rule of law. One of these trends is a side effect of the capitulation of democracies to the demands of corporate power. Governments make a “pathetic display of legislative machismo,” (P. 3) by reflexively criminalizing whatever arouses the moral panic of the hour (so long as, I would add, the newly-to-be-criminalized class is powerless). In evidence, John cites a recent decade in which the UK created an astonishing 3000 novel criminal offenses. This is not as draconian as we would assume, because it is buffered by a counter-trend toward selective under-enforcement. But, as John points out, the counter-trend itself is alarming, and especially so for its insidiousness.

The rule of law, for law-and-order types, demands strict obedience by the public. Where that strict obedience is not forthcoming, then for the law-and-order types among us, officials ought to use lawless means. John rightly rejects this “symmetrical” view. The rule of law makes asymmetrical demands of officials and of citizens (as Rawls, among many others, recognized). Simply put, “We ordinary folk should laugh at stupid laws; officials, poor things, have to uphold them.” (P. 7.) When the law is ridiculous, or, worse, it is unknowable and unmemorable, the rule of law suffers because the law cannot guide us. It cannot rule us, only officials can. But officials, in turn, cannot rule us by law either, despite even their earnest efforts to do so, if too much is left to their discretion.

Of equal concern to John is the accelerating privatization of the domain of private law. This trend is most obvious to us when we agree to “click-through” to access on-line resources that would otherwise be closed to us. In the process of “agreeing” we waive rights too numerous and extensive even to want to know about; and the rule of law suffers, as Margaret Radin and Judith Resnik have argued. John focuses on one aspect of this: the take-it-or-leave-it consignment of consumer disputes to private arbitration. This kind of privatization is especially insidious when, as is typical, it uncouples dispute resolution and judicial oversight. Here, the familiar Diceyan objections to droit administratif—as judicially unsupervised bureaucratic lawmaking—are amplified by the fact the corporations that insist upon isolating legal power from legal oversight do so solely to maximize profit. The parties may benefit from the legal enforceability of private arbitral outcomes but the public good of legality goes unprovided.1 There is no common law, no judging with an eye to wider consequences, and no working pure of the legal doctrines that ought to guide the interpretation and application of contract terms.

John deftly debunks the libertarian notion that the law is coercive whenever it interferes with private orderings except when it enforces the supposed terms of private orderings; and he summarizes:

any effect that the law gives to contractual norms should be an effect that the law, through the courts, ultimately get to determine. And that implies, I suggest, no ouster of the courts’ final jurisdiction over questions of law arising under the contract, including its legal construction, which is an integral part of the determination of its legal effects. (P. 8.)

The global corporate behemoths are not (yet?) so far along on their way toward becoming outright Hobbesian Leviathans that they need not appeal to public governments to enforce their legal rights. Their ideal is “juridification without legality,” which can be seen as another aspect of what Elizabeth Anderson2 calls private government, and what Samuel Freeman3 counts as feudalism: the appropriation, for the purpose of extending private dominion, of the normative forms of public power.

What do these trends mean for those who would become lawyers, and those who train them? The germ of the article is his Irvine Lecture, delivered in 2015 to faculty and students at Cornell Law School. John concludes with reflection upon his career as a barrister, during which interval lawyers came to be thought of as a pricey category of service-providers. To invoke the lawyer’s special responsibility to assure “access to justice” is the easier part of tailoring lawyers to the service-provider template: “Much harder to integrate into the service-provider model…is our special responsibility, as lawyers, for upholding the rule of law. That is because the rule of law is for the most part a public good in which our clients may well have relatively little individual interest.” (P. 16.) Winning strings of victories for underdogs is not enough:

Today’s young lawyers…have a “special responsibility for the quality of justice” going beyond any that the original drafters of the Bar Model Code of ethics could have anticipated. For they face a world more hostile to legality, and yet more wedded to juridification, than any we have seen before. (Id.)

Tackling the special “evil of privatization” manifest in the displacement of legality by juridification is now an indispensable task of lawyering “in the best sense”—a task left to us to pursue without John Gardner along to guide us.

  1. On concierge justice between well-resourced commercial parties, see VIP Courts, Private Eye (July 2019), at P. 39.
  2. Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It) (2017).
  3. Samuel Freeman, Liberalism and Distributive Justice (2017), at 87-88.
Cite as: W.A. Edmundson, Juridification Without Legality, JOTWELL (September 26, 2019) (reviewing John Gardner, The Twilight of Legality, 43 Australasian J. of Legal Phil. 1 (2019)), https://juris.jotwell.com/juridification-without-legality/.

Reasons to Comply With the Law

Everyone agrees that law has a conduct-guiding function. Moreover, most legal theorists assume that this conduct-guiding occurs, or is supposed to occur, by providing reasons for action. This very readable book is about the kind of reasons to comply with the law that law can provide and—under favorable conditions—does provide. As most of us know, officials applying legal requirements largely act as if these requirements trump (nearly) everything else for law subjects. In terms made famous by Joseph Raz, they treat law as giving rise to pre-emptive reasons to comply. These are reasons that (a) are ordinary reasons in favor of conduct and (b) exclude some opposing reasons, in the sense that they are not to be considered in a law subject’s practical reasoning. But this is not how civil disobedients and otherwise law-abiding motorists treat many legal requirements. (The latter, notoriously, consider what appear to be excluded considerations, such as the speed of traffic and the apparent likelihood that speeders will be apprehended, to reach decisions about obeying the posted speed limit.)

This gives us two views about what sort of reasons law (potentially) provides for action: (1) reasons that pre-empt competing reasons, and (2) reasons that compete with others in terms of weight. Gur carefully criticizes the two positions as inadequate before developing a refreshingly different sort of answer. The reader will be surprised to learn what this difference implies about the law and its authority.

In a nutshell, according to Gur, what is wrong with the first, pre-emption model is that it provides the wrong answer in cases in which officials create a clearly very immoral directive, and in cases in which they create a directive that has a clearly very immoral application. In such situations, the law subject should not comply. This is true even when the legal officials have legitimate authority and are competent. Moreover, one cannot rescue the pre-emption model by arguing that all moral considerations are not excluded by—and therefore, not pre-empted by— legal directives (or by these sorts of directives). Gur contends that it is only by reasoning from the (entire) balance of reasons that instances of grave immorality in directive-application can be identified by the law subject.

In brief, what is wrong with the second, weighing model is that its method of reasoning is highly susceptible to a cognitive and motivational problem that legal regulation (ceteris paribus) isn’t. Gur contends that social problems are caused by the fact that people are fallible in judging the balance of reasons, in part because people commonly have cognitive biases. Law is less vulnerable to the biases— because of features such as the generality and prospectivity of its directives—yet it can solve these social problems. These facts help justify using legal regulation to guide conduct and provide a reason why the law subject should not rely on an individual assessment of the balance of ordinary reasons for (and against) compliance with a legal directive—such an assessment can too often be mistaken.

Gur defends a third position he thinks of as a middle ground that he calls “the dispositional model.” This model treats motivation as bearing on an agent’s practical reasons for action because, as Gur puts it in his last chapter “the problem is partly motivational,” so its solution must be also partly motivational. (P. 217.) According to the dispositional model, reasonably just and well-functioning legal systems give rise to reasons to adopt a certain general normative attitude toward the legal system. (This is in addition to the ordinary reasons that legal requirements sometimes give rise to.) The attitude in question is both settled—“reasonably stable,” Gur says—and motivating. This attitude is composite; behaviorally, it shows itself in, or is composed in part of, a disposition to comply with the law. This disposition is deep-seated, yet defeasible in its force. Someone with it is persistently somewhat resistant to reasons for non-compliance, but never entirely.

Gur argues that his is the right position to take, given the likelihood of a law subject’s biases and the structural features of law in a system that meets certain conditions. We should adopt this particular normative attitude because its disposition averts some error in practical reasoning—in the kinds of good legal systems Gur has in mind. In other words, in legal systems meeting certain conditions, it is likely that we ought to comply. The disposition pulls against our contrary cognitive biases and tends to make us reach this conclusion. Yet our biases and our fallibilities in practical reasoning do not give us reason to go so far as to exclude opposing considerations in our practical reasoning when faced with legal demands.

Gur further argues that this distinctive disposition cannot be replaced by ordinary moral dispositions. You don’t have the normative attitude in question if all you have are moral attitudes such as respect for dignity, a commitment to justice, and sensitivity to the suffering of others. His argument is that reliance on moral attitudes may not combat biases against compliance with mala prohibitum directives, and that moral disagreement would undermine the “necessary compromises” law makes.

Space does not permit me to comment on his interesting discussions on related topics—such as an extended critique of Raz’s Normal Justification Thesis for authority and what research reveals about why people obey the law.

I think Gur is very largely correct in his major claims. And if so, it matters; for it raises a problem about the legitimacy of actual legal systems, such as our own. For: (a) legal officials act as if law subjects have reasons to comply even when the legal system isn’t reasonably just and well-functioning (and even when officials know or suspect this fact); and, as I mentioned at the outset, (b) legal officials act as if legal requirements create pre-emptive reasons for law subjects.

Cite as: Barbara Levenbook, Reasons to Comply With the Law, JOTWELL (August 12, 2019) (reviewing Noam Gur, Legal Directives and Practical Reasons (2019)), https://juris.jotwell.com/reasons-to-comply-with-the-law/.

A Normative Sociological Jurisprudence

A sure sign of a terrific book is that various readers can agree that it is illuminating and impressive but identify different aspects of the book as its most insightful and important elements. Contrasting positive reactions are a testament to the richness of a book. That is what struck me upon reading Sean Coyle’s JOTWELL review of Roger Cotterrell’s Sociological Jurisprudence.1 I second Coyle’s praise for this “very interesting, thought-provoking, and beautifully written book.” And I concur with his assertion that all jurisprudents will profit from reading it.

This review provides an account of what makes Cotterrell’s sociological jurisprudence so different from other contemporary jurisprudential works. While Coyle’s title, “A New Jurisprudence?,” suggests that Cotterrell has a novel take on jurisprudence, he does not explain precisely what makes it new. That is what I focus on in this review. I encourage readers to examine Coyle’s review. He concisely describes the three-part structure of the book—the role of the jurist, transnational regulation, and legal values in sociological perspective—while raising probing questions about each part. I will therefore forego providing a descriptive overview of the book.

To get at what’s new about his jurisprudence I will first say what is not new. His extensive discussion of transnational law and regulatory matters in Part II is a welcome correction to jurisprudential neglect of these topics. Cotterrell frames his analysis in terms of legal pluralism, and rightly argues that the plurality of legal and regulatory forms on the transnational level challenges long held assumptions about the nature of law. These are important issues, but this is not what distinguishes Cotterrell’s sociological jurisprudence. Legal pluralism and transnational law are extensively taken up in Nicole Roughan’s and Andrew Halpin’s In Pursuit of Pluralist Jurisprudence (2017), which includes essays by a stellar cast of contributors.2 Cotterrell’s lead theoretical chapter in Part II is also a chapter in their collection. Roughan and Halpin claim that pluralist jurisprudence is a new jurisprudence. Whether that claim is correct is not relevant here—the point is that this aspect of Cotterrell’s book is not unique.

The combination of two distinctive elements make Cotterrell’s sociological jurisprudence unlike any other. The first element is that Cotterrell links jurisprudence to the work of jurists in a way that renders it normative as well as narrow. The second element is that Cotterrell incorporates social science within jurisprudence to help fulfill its normative task. This combination is what makes it normative sociological jurisprudence, as the title to this review indicates. There are versions of normative jurisprudence, Finnis’s natural law,3 and there are versions of social scientifically infused jurisprudence, like my realistic theory of law,4 but I know of no other contemporary jurisprudence that combines the two. Roscoe Pound’s sociological jurisprudence also combined the two, so in that sense Cotterrell’s sociological jurisprudence is a throwback, though his approach is very different from and far more sophisticated than Pound’s.

Now I will fill out these two elements to provide a sense of his theory. His starting point is jurists—legally trained individuals who pursue knowledge about law—whose specific role “is that of maintaining the idea of law as a special kind of practice and enabling that idea to flourish. One might say that the jurist’s role, on this understanding, is to safeguard and promote law’s general well-being.” (P. 32.) Drawing on Radbruch, Cotterrell indicates that law’s well-being depends on maintaining a balance between three aspects of a value structure within law: 1) justice, 2) order, or security and certainty, and 3) purpose, or expediency or utility. (P. 38.) The first two are primary, for without order there can be no justice and without justice order can be tyranny. Purpose is taken from ideas, values, and interests circulating in a given society. The jurist’s job is to see that law maintains all three.

Cotterrell ties jurisprudence to jurists: “jurisprudence is properly seen as an important body of thought that aims at exploring, aiding, and developing the prudentia of jurists.” (P. 45.) To serve this role, jurisprudence must be empirically grounded, informed by social scientific research on the operation and consequences of law and on social values. Jurisprudence in his account is not a discipline or field, but rather “a patchwork of insights related to the idea (and ideal) of law as a practice of regulation to serve social needs and social values, as these are recognized in particular times and places.” (P. 45.)

Since the role of jurists is normative committed toward law’s well-being, yoking jurisprudence to facilitate the work of jurists renders jurisprudence normatively committed. It bears emphasis that this is Cotterrell’s view of jurisprudence generally, not just sociological jurisprudence. (P. 13.) “The term ‘sociological jurisprudence,’ ideally, should indicate no more than jurisprudence in general that is aware of its responsibility to link law’s enduring value commitments to a systematic, empirically grounded understanding of the diverse contexts of legal experience.” (P. 13.) He grants that theoretical approaches not dedicated to serving jurists can also be informative, like the philosophy of law and social legal theory, but asserts that jurisprudence should be reserved for this narrower role.

Social scientific research can shed like on values in relation to law in multiple ways: identify the values people hold and their consequences, explain why value debates and choices matter in given social contexts, guide the implementation of value choices, reveal the likely consequences of value choices, show how value choices can benefit society, and identify moral principles necessary to stable relations. (Pp. 172-203.) This information—provided by sociology, anthropology, and other empirical disciplines—should be integrated into jurisprudence and utilized by jurists in their effort to advance the well-being of law. “Sociological jurisprudence is distinguished from sociology of law, according to the approach of this book, because of jurisprudence’s explicit commitment to the pursuit of values through law, indeed its recognition of values as at the heart of legal practice and experience.” (P. 226.)

Cotterrell’s book contains much more of interest and value than this brief account can relate.5 What I have conveyed is the core of what makes his theory not only unique but also essential reading for jurisprudents. He is sounding a call to all jurisprudents to recognize that we have a responsibility for maintaining the good of law while insisting that the way to carry out this responsibility is to be informed by the best available empirical research. In many countries around the world today, including the United States, there appears to be increasing pressure on and threats to the integrity and functionality of law. That is why Cotterrell’s message, although unorthodox and against the grain of jurisprudence today, should be taken seriously.

  1. Sean Coyle, A New Jurisprudence?, JOTWELL (February 11, 2019) (reviewing Roger Cotterrell, Sociological Jurisprudence: Juristic Thought and Social Inquiry (2018)).
  2. See Brian Z. Tamanaha, The Promise and Conundrums of Pluralist Jurisprudence, 82 Mod. L. Rev. 159 (2019).
  3. John Finnis, Natural Law and Natural Rights , (2011).
  4. Brian Z. Tamanaha, A Realistic Theory of Law, (2017).
  5. For a detailed look at sociological jurisprudence generally and Cotterrell’s version in particular, see Brian Z. Tamanaha, Sociological Jurisprudence Past and Present, Law Soc. Inq. (forthcoming).
Cite as: Brian Tamanaha, A Normative Sociological Jurisprudence, JOTWELL (July 11, 2019) (reviewing Roger Cotterrell, Sociological Jurisprudence: Juristic Thought and Social Inquiry (2018)), https://juris.jotwell.com/a-normative-sociological-jurisprudence/.

The Semantics and Pragmatics of Legal Statements

Stephen Finlay & David Plunkett, Quasi-Expressivism about Statements of Law: A Hartian Theory, in 3 Oxford Studies in Philosophy of Law 49 (John Gardner, Leslie Green & Brian Leiter eds., 2018).

When people talk about the law what, if anything, are they talking about? What do their sentences mean? Much of the philosophy of law has revolved around this question. In this essay, Finlay and Plunkett offer a novel answer—and a plausible reading of the answer proposed by the foremost Anglophone philosopher of law, H.L.A. Hart.

In The Concept of Law, Hart draws a distinction between external and internal legal statements. External legal statements describe people’s beliefs, attitudes, and behavior concerning legal standards. An example is “In England, they accept as law what the Queen in Parliament commands.” Internal legal statements (ILSs), by contrast, apply legal standards and usually put their conclusions using normative language.1 An example is “You (legally) ought not drive over 55 m.p.h.”.

The semantics of external legal statements is unproblematic. But ILSs are a challenge for legal positivists, like Hart, who hold that the existence and content of the law ultimately depend solely upon non-normative social facts about a community—in particular, facts about the beliefs, attitudes, and behavior of the community’s officials. If positivism is correct, why aren’t all legal statements external? In using normative language, ILSs appear to give support for non-positivist (particularly natural law) approaches. ILSs seem to describe normative facts, that is, facts that non-contingently give one reasons for action.

Positivists often respond to this problem by borrowing from semantic accounts of moral statements that deny that these statements describe normative facts. If moral statements can employ normative terms without describing normative facts, the same thing can be true of ILSs. The most commonly borrowed account is expressivism.

Consider the sentence “Hurrah John!” In uttering this sentence, one does not attribute a property (say, hurrahness) to John. If one did, the sentence would be either true or false, depending upon whether John had that property. But “Hooray John!,” although meaningful, is neither true nor false. Rather than describing John, it expresses the speaker’s positive attitude toward John. Its meaning can be understood in term of this expressive role.

Many expressivists understand the meaning of the normative terms in moral statements (like “good”) similarly. These terms express the speaker’s affective states, rather than attribute normative properties to the world.2 An advantage of this approach is that it can explain in an acceptably naturalistic fashion why someone who makes a moral statement thereby takes herself to have a reason for action: why someone who says “Keeping one’s promises is good” takes herself to have a reason to keep her promises. Her reason is the affective state expressed, not the presence of some mysterious normative state of affairs.

The prevailing reading of Hart is that he employed expressivism in his account of ILSs.3 An ILS’s meaning is tied to its role in expressing the speaker’s affective state, in particular, her acceptance of the foundational rule of the relevant legal system (which Hart calls its rule of recognition).4

But expressivism has a serious difficulty, commonly known as the Frege-Geach problem. If the meaning of “good” is tied to its role in expressing the speaker’s positive attitude, how are we to understood its meaning in non-assertoric contexts—for example, when one asks, “Is keeping promises good?,” or says,“ If keeping promises is good, then it is good for Joe to keep his promises.” If expressivism were correct, these sentences should be nonsense, the way “Is it the case that Hurrah John!?” or “If Hurrah John!, then…” are. Expressivists have tried to solve this problem, but whether they have succeeded is questionable.

The same point applies to ILSs. If the meaning of “ought” in “You (legally) ought not drive over 55 m.p.h.” is tied to its expressing the speaker’s acceptance of the relevant rule of recognition, how are we to understand its meaning in the sentences, “Is it the case that one (legally) ought not drive over 55 m.p.h.?,” or “If one (legally) ought not drive over 55 m.p.h., then Joe (legally) ought not drive 60 m.p.h.?” Clearly these sentences aren’t nonsense.

The view that normative terms describe normative facts, by contrast, does not suffer from the Frege-Geach problem. Unlike expressive sentences, descriptive sentences (such as “The cat is on the mat”) are generally understood as having two elements to their meaning: their propositional content (that-the-cat-is-on-the mat) and the way that the content put forward or used. In “The cat is on the mat” the proposition is put forward as an assertion. But in other sentences the same propositional content can be put forward non-assertorically.

Recently, philosophers working in metaethics have offered positions that share with expressivism the view the moral statements do not describe normative facts, but deny that the semantics of such statements is expressivist. The relationship between making a moral statement and having a particular affective state is pragmatic rather than being tied to the statement’s meaning. Stephen Finlay’s quasi-expressivism, which Finlay and Plunkett apply to ILSs in this paper, is an example.

We are all familiar with the use of “ought” in a hypothetical imperative—such as when one says to the failed murderer, “You ought to have used poison, rather than a gun.” Such statements can be understood as describing a probabilistic relation between an act (using poison) and the realization of an assumed end (killing someone). Philosophers commonly claim that this use of “ought” is semantically distinguishable from its use in moral contexts. Moral norms impose categorical imperatives—they provide us with reasons for action that exist whatever our inclinations. It is these categorical norms to which the term “ought” in moral statements refers. But Finlay adopts the surprising position that the semantics is the same in both contexts. A moral statement—such as “You ought to keep your promises”—describes a probabilistic relationship to an assumed end.

This isn’t to say that there is no connection between moral statements and ends. But Finlay argues that the connection is pragmatic, rather than following from the statements’ semantics. Under normal circumstances, speaking of a probabilistic relationship to an end would make a helpful contribution to a communicative exchange only if the speaker and hearer favor the end. By uttering the sentence about the probabilistic relation, the speaker will therefore pragmatically express that she favors that end—which explains why someone making a moral statement takes herself to have a reason for action. But this expression is not part of the meaning of the speaker’s moral statement: she can appropriately use the sentence without favoring the end at all.

And what if it is clear that the listener does not favor the end? What if one says “You ought to keep your promises” to someone who manifestly does not care about keeping his promises? It is here that most philosophers would say that the moral statement must be describing normative facts. That is the only way to explain the statement’s categorical nature—its applicability to the listener independent of her inclination.  But Finlay again relies on pragmatics. He argues that to speak as if an end is accepted by one’s listener when it clearly is not is a rhetorical way of making a demand that it be accepted. (Something analogous goes on when one says to one’s child, “You will take out the trash.”) Semantically, the statement remains a description of a probabilistic relation to an assumed end.

I am quite skeptical about whether quasi-expressivism is an adequate account of moral statements. But it is very promising when applied to ILSs, as Finlay and Plunkett do in this essay. Under their account, ILSs state that a certain relationship to the relevant rule of recognition exists. For example, when one says, “It is the law that one ought to drive 55 m.p.h. or less,” one asserts a proposition that the rule that one ought to drive 55 m.p.h. or less satisfies the rule of recognition of the relevant legal system (say, California). That proposition is either true or false as a matter of descriptive fact.5 Because ILSs have this propositional content, the same content can occur in non-assertoric contexts. The Frege-Geach problem is solved.

Notice that although ILSs are descriptive, there remains a relationship between making an ILS and taking oneself to have a reason for action. But the relationship is the result of pragmatics, rather than following from the ILS’s semantics, as the expressivist claims. This pragmatic approach has an unexpected payoff: it can easily explain the many circumstances in which someone who makes an ILS lacks any positive attitude toward the rule of recognition. Many ILSs are, as Joseph Raz has put it, detached. And yet a detached ILS and an ILS made by a committed participant in a legal system seem to have the same meaning. Finlay and Plunkett’s quasi-expressivism explains why.

In addition to offering quasi-expressivism as their own account of ILSs, they also offer it as Hart’s view. Although I cannot pursue the details here, I think they are clearly right. Most notably, their reading can make sense of the fact that Hart was probably aware of the Frege-Geach problem before writing The Concept of Law6 –something that makes an expressivist reading of him awkward.7

  1. For a more nuanced description of Hart’s conception of external and internal legal statements, see Luis Duarte d’Almeida, The Grounds of Law, in The Legacy of Ronald Dworkin 165, 175-86 (W. Waluchow & S. Sciaraffa eds., 2016). Finlay and Plunkett’s understanding of the distinction is somewhat different from Hart’s. As they see it, an external legal statement speaks of a relationship to an identified rule of recognition of a legal system (such as “In China, it is the law that L.”) ILSs, by contrast, are unrelativized to a legal system (“It is the law that L.”) P. 59. I do not think their definition is adequate, for relativized statements can still be ILSs. I cannot pursue the matter here, however.
  2. Technically, Hart held a form of non-cognitivist expressivism concerning ILSs. See Kevin Toh, Hart’s Expressivism and His Benthamite Project, 11 Legal Theory 75, 78-81 (2005). It is not essential to expressivism that the relevant sentence expresses a non-cognitive state like an affect.
  3. See supra Toh note 2.
  4. Note that Hart’s view might have been that an ILS has expressive and descriptive meaning. See Pp. 49-86. But its use of normative language is tied to its expressive function.
  5. It may not be true or false as a matter of social fact, however. I would argue that the statement is about the relationship between abstract objects, rather than social facts. See Michael S. Green, The Semantic Thesis in Legal Positivism, in Cambridge Companion to Legal Positivism (Torben Spaak & Patricia Mindus eds., forthcoming). Finlay and Plunkett are somewhat equivocal on this matter.
  6. See supra Toh note 2, at 103-05.
  7. Thanks to Stephen Finlay for helpful comments.
Cite as: Michael Green, The Semantics and Pragmatics of Legal Statements, JOTWELL (June 18, 2019) (reviewing Stephen Finlay & David Plunkett, Quasi-Expressivism about Statements of Law: A Hartian Theory, in 3 Oxford Studies in Philosophy of Law 49 (John Gardner, Leslie Green & Brian Leiter eds., 2018)), https://juris.jotwell.com/the-semantics-and-pragmatics-of-legal-statements/.

Repackaging Normativity

Triantafyllos Gkouvas, The Metric Approach to Legal Normativity, in Unpacking Normativity (Kenneth Einar Himma, Miodrag Jovanovic & Bojan Spaic, eds. 2018).

The subject of legal normativity has attracted a great deal of attention recently. The collection in which Tria Gkouvas’s chapter appears does much to display the variety of perspectives, themes and issues that inform the current debate. Or, perhaps, current debates, given that a number of positions being expounded here and in other works on normativity over recent years tend to fix the normativity debate with a particular character prior to making a contribution to it. Gkouvas’s chapter is particularly stimulating in seeking to develop an approach that cuts across different perspectives and joins together different roles of normativity in what he presents as a “standard of normative robustness.” (P. 17.)

This approach is styled the “metric approach” precisely because it can be used to measure the normative robustness of quite different legal theories. It offers to do this by concentrating on “the Nexus space of reason-giving facts,” (P. 18) in which the different roles of action-guidance, evaluation of action, and explanation of action cohere in a single fact (Pp. 18-19). Gkouvas’s notion of Nexus is borrowed from Joseph Raz’s use of the term in From Normativity to Responsibility to indicate the connection between the normative force of a fact and its explanatory potential in a normative/explanatory nexus. Gkouvas amplifies this nexus as covering the three normative roles just mentioned of guidance, evaluation, and explanation; corresponding to “three distinct component functions (metaphysical, evaluative and explanatory).” (P. 18.)

Gkouvas stresses (P. 21) that the use of the Nexus is to measure normative robustness within a theory of law and not to investigate the extent to which legal facts for their existence depend on possessing normative force. By this he means to indicate that the Nexus is neutral as between positivist and non-positivist theories of law. What the Nexus does measure in terms of normative robustness is then the ability of a particular theory to deliver legal facts that can fulfill the three roles, or the three “component functions.” After detailed investigation, he concludes that the theories of Raz and Greenberg do, whereas those of Dworkin and Shapiro amount to “deviant” theories that may nevertheless be measured by the Nexus. (P. 31.)

Within the detailed examination of both compliant and deviant theories, we are given further insights into how Gkouvas understands the three roles/components within the Nexus. Of particular interest are the different ways in which he sees Dworkin and Shapiro deviating in “need[ing] supplementation by extra-legal facts in order to account for the performance of one of the three functions that constitute a Nexus reason.” (P. 31.) Dworkin falls down on the second, in not providing “a robust evaluative role for legal facts” while Shapiro on the third in failing to deliver “the explanatory potency of legal plans.” (P. 36.)

As devised and utilized by Gkouvas, the metric approach accordingly provides a novel framework in which to assess different characteristics of legal theories, beyond the familiar oppositions of positivist/non-positivist. It also stimulates further lines of inquiry on legal normativity. The neutrality he claims for his approach is clearly one that is premised on “answer[ability] to the Nexus standards” (P. 31), yet the Nexus itself is regarded as governing theories that relate legal facts to moral and social facts in different ways (P. 17), so the metric approach is extensive in its reach. Its fuller implications merit further reflection. Among them is quite possibly an interesting angle on the sui generis perspective on legal normativity, which has been featured in recent writing. If the satisfaction of normative robustness by a theory is dependent on not requiring supplementation by extra-legal facts, but the legal facts can exist “atop a stratified ontology featuring moral and/or social facts,” (Id.) it seems to follow that a robust legal normativity without the need for supplementation may nevertheless incorporate moral and social facts into a fully legalized normativity. This holds out the prospect of a sui generis understanding of legal normativity enjoying a richer profile than might at first be thought.

Cite as: Andrew Halpin, Repackaging Normativity, JOTWELL (May 10, 2019) (reviewing Triantafyllos Gkouvas, The Metric Approach to Legal Normativity, in Unpacking Normativity (Kenneth Einar Himma, Miodrag Jovanovic & Bojan Spaic, eds. 2018)), https://juris.jotwell.com/repackaging-normativity/.

The Neuroscience of Responsibility

William Hirstein, Katrina Sifferd & Tyler K. Fagan. Responsible Brains: Neuroscience, Law, and Human Culpability (2018).

The interface between law and neuroscience has been a continuing source of interest for lawyers and philosophers. Many scholars have hailed developments in neuroscience as singularly transformative for our understanding of human agency. Further—it is argued—once we understand human agency from the neuronal point of view, we will be forced to alter the ways in which our practices of responsibility—especially law—regulate human conduct.

In the view of some scholars, claims for the transformative impact of neuroscientific developments on law are overblown. Taken to an extreme, those who trumpet the transformative effects of neuroscience on law have sometimes been found to suffer from the malady Stephen Morse labels “Brain Overclaim Syndrome.” Labelling the syndrome a “cognitive pathology,” Morse argues that claims made by those in the grip of the pathology make claims that cannot be conceptually or empirically sustained.1

The authors of this provocative and interesting book make strong claims for the importance of neuroscience for our practices of responsibility. Their strongest conceptual claim is one they make often. In fact, the claim is the central thesis of their book. When it comes to responsibility assessment, the authors argue that the brain itself—specifically its executive functions—are “the seat of human responsibility.” (P. viii.)

The first of the book’s eleven chapters begins with a description of three recent high-profile criminal cases where the state of the defendant’s brain was at issue. The most well-known of the three is that of Anders Brevik. In July 2011, then 32-year-old Brevik killed 77 people—including many youths on the island of Utøya—using both explosives and automatic weapons. Alternatively found to be insane and then sane, Brevik’s case raises the question of the relevance of mental illness to responsibility and, thus, punishment. Mental illness has always been treated as a mitigating factor in both culpability and punishment assessments. The authors want to go beyond conventional approaches to these issues with the argument that “specific facts about the brains of the agents discussed in these cases…strongly inform assessment of their culpability.” (P. 8.)

It is important to be clear about just what the authors are claiming when it comes to the relationship between facts about the brain and normative evaluations of conduct (e.g., the criminal law). No one disputes the fact that neuroscientific assessments can and should impact responsibility assessments. The usual form such assessments takes are pleas for mitigation at the sentencing stage of criminal proceedings. While the authors take no issue with these conventional approaches, their central claim is much stronger than one commonly encounters in the literature. They write: “Neuroscience is both relevant to responsibility and consistent with our ordinary ‘folk’ conceptions of it. Evidence from cognitive science and neuroscience can illuminate and inform the nature of responsibility and agency in specific, testable ways.” (P. 12.)

The authors develop their position with an account of “executive functions” (responsibility for action presupposes that the agent in question is possessed of a MWS (minimal working set of executive functions)). After a review of the current neuroscience of executive function (Chapter 2), the authors integrate executive function with reasons responsiveness (Chapter 3) and legal theory as well as criminal law (Chapter 4). Chapters 5-7 are an extended engagement with the work of Neil Levy, who developed a theory of responsibility out of a theory of consciousness. Chapter 8 applies the authors’ theory to the special problems of juvenile responsibility. Chapter 9 considers insanity and Chapter 10 takes up punishment theory. The book ends with a chapter on future work and what issues remain open for further development.

So what are executive functions and why are they so important? Executive functions are usually thought to be located in the prefrontal cortex of the brain. Recent work in neuroscience suggests that “all executive functions (or at least a core set of them) are accomplished by a single, unified brain network, the frontoparietal cognitive-control network (working together with adjunctive areas, some of which are unique to the particular executive process involved).” (P. 21.) They regulate a variety of human behaviors, most importantly perception, memory, and emotion.

The language of moral assessment—both everyday terms and specialized vocabularies like the criminal law—are disparaged by reductionist hardliners (e.g., Patricia Churchland) as mere “folk psychology.” Reductionist physicalists want to replace folk psychological terms like those employed in the criminal law with the language of science, specifically neuroscience. The motivation for this approach is the belief that folk psychological terms refer to nothing in the world. For the naturalist/reductionist/physicalist, because all behavior is the result of causal forces alone, only the language of science is appropriate in ascribing responsibility for action. Folk psychological terms are dismissed as vacuous and non-referential. They have no traction in the real world.

The authors describe themselves as naturalists and physicalists, but they wear their philosophical positions lightly. None of the arguments in their book turns on adoption of a particular metaphysics of action or responsibility. Nowhere is this more apparent than in their treatment of the relationship between the folk psychological vocabulary of the criminal law and neuroscientific facts about executive functions. Before further discussing this important aspect of their argument, let me deal with a preliminary issue.

Many philosophers claim that the criminal law presupposes free will. The argument is straightforward. The law punishes agents for wrongful acts committed with a guilty mind (mens rea). Agents choose whether to commit criminal acts through the exercise of individual will. The law assumes exercise of will is a matter of free choice. Agents decide (choose) whether to commit bad acts. The law punishes bad acts committed with the requisite mental state. As such, law presupposes free will.

Some philosophers claim that the criminal law rests on a mistake: there is no free will. All behavior is caused. Human action is not the result of individual choice as we are all just nodes in a long causal chain. The experience (i.e., the feeling) that we are in control and making choices is just an epiphenomenal illusion. We are no more in control of our behavior than a robot.

The authors describe themselves as “compatibalists,” meaning “that despite the laws of physics and our increasing ability to understand the mechanistic, causally determined nature of the physical underpinnings of human actions and decisions, we are still responsible for such actions and decisions….” (P. 75.) Nevertheless, the authors acknowledge the philosophical sophistication of some of the arguments of determinists. They reply with a discussion of the case of “Bert.” Bert forgot that he had custody of his kids for the weekend and left for Las Vegas. The kids spent the weekend alone in Bert’s apartment and he was arrested for child neglect. Bert’s executive capacities were all working (he possessed what the authors describe as “diachronic agency”): he had no excuse. He was responsible for the kids and he failed to meet that responsibility. Hard determinists want to argue that Bert had no choice in the matter: his genes, his environment, and his brain all made him act as he did. The authors spend little time with the arguments of hard determinists, likening the position to hardcore skepticism: “Nothing—no causal powers available to persons within our universe—could satisfy the free will skeptics.” (P. 209.)

How do the authors get from facts about the brain (i.e., executive functions) to responsibility assessments? Recall that the unique claim made by these authors is that neuroscientific facts can inform responsibility assessments, not just by providing facts to be taken into account but by setting standards for responsible conduct. In the case of Bert, they argue, he was possessed of all the cognitive capacities necessary to conform his conduct to the law. He could have trained himself to be more aware of his schedule. He could have given himself reminders. It was not that difficult for Bert to habituate himself to be a responsible agent. Bert has no defense to the charge of neglect.

A critical comment on this approach to responsibility is to agree that one cannot be held responsible for action if one lacks the neuronal faculties necessary for proper conduct. This is uncontroversial. But the authors of this engaging book make a further claim. They claim that these very capacities themselves set the standard for responsible action. Such a claim looks dangerously close to a violation is the is-ought fallacy. Selim Berker—in a sublime article on this point—argued that no scientific facts can generate normative consequences. Neuroscientific facts, he argued, are normatively inert.2 Thus, sentences like this one are worrying: “Evidence from cognitive science and neuroscience can illuminate and inform the nature of responsibility and agency in specific, testable ways.” (P. 12.)

It is one thing to identify cognitive capacities necessary for action and to then use neuroscientific as well as behavioral evidence of their presence or absence to make responsibility judgments. It is quite another thing to suggest that the neuroscientific evidence for those behavioral capacities and neuroscientific evidence generally provide the criteria for assessments of responsible conduct. To the extent that the latter claim is made, such a controversial move requires further argument, lest one attract the criticism of Brain Overclaim Syndrome.

This is a thoroughly engaging and well-written book. The authors survey much of the responsibility literature and provide engaging discussions of the leading positions. Their suggestions for the use of neuroscientific evidence in various contexts (e.g., assessment of minors) is particularly persuasive. This is a book to be read by anyone with an interest in law and neuroscience, responsibility, criminal law, and ethics.

  1. See Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 Ohio St. J. Crim. L. 397 (2006).
  2. See Selim Berker, The Normative Insignificance of Neuroscience, 37 Phil. and Pub. Affairs 293 (2009).
Cite as: Dennis Patterson, The Neuroscience of Responsibility, JOTWELL (April 17, 2019) (reviewing William Hirstein, Katrina Sifferd & Tyler K. Fagan. Responsible Brains: Neuroscience, Law, and Human Culpability (2018)), https://juris.jotwell.com/the-neuroscience-of-responsibility/.

“Who Do You Think I Am?” or What it Means When We Lose Our Privacy

Craig Konnoth, An Expressive Theory of Privacy Intrusions, 102 Iowa L. Rev. 1533 (2017).

In the spring of 2018, we learned that Facebook, the technology company we cannot seem to get away from, allowed a political analytics group to obtain Facebook users’ data. In late 2018, Facebook admitted another, even more egregious intrusion. The New York Times showed us how the technology company gave millions of users’ personal data to other companies. It also allowed other companies to read the content of personal messages made on the platform, messages users assumed to be private. CEO Mark Zuckerberg testified before Congress and Facebook ran an apology ad campaign, including airing an apology video during the NBA playoffs. In a Facebook post, Zuckerberg pledged: “We have a responsibility to protect your data, and if we can’t then we don’t deserve to serve you.” In doing so, Zuckerberg signaled its users’ importance, and their importance required privacy protection. In other words, Facebook acknowledged that when it allowed a privacy violation, it inherently disrespected its users.

In An Expressive Theory of Privacy Intrusions, Craig Konnoth explicitly argues what Zuckerberg implicitly acknowledged: privacy intrusions involve more than what is being taken or how the intruders use that information. Intrusions express something about the breacher and the breachee beyond the material consequences; according to Konnoth, the social meaning of privacy intrusions suggest the victim’s lower social status, a form of “disrespect.”

In this article, Konnoth makes two main contributions that can help us understand the problem of privacy breaches. First, he argues that the very act of information intrusion harms, even when that information is relatively benign, does not stop actors from acting, or where the intruders protect that information against others. “Instead,” Konnoth argues, “the very act of intrusion sends a message about the values society holds dear and the status that particular individuals have in society.” (P. 1535.) He grounds this argument in expressive theories of law, placing privacy intrusions within theories of how state action communicates certain values. For example, he shows how the Supreme Court’s Fourth Amendment jurisprudence acknowledges these expressive purposes of searches: when schools conduct drug tests on student athletes, the search conveys an important value, the “abhorrence of…drug abuse.” (P. 1545.) In addition, privacy intrusions say something about their victims. For example, when a school drug tests athletes, the search expresses a belief that students are inherently immature and unable to make good choices.

Konnoth’s second contribution closely follows the first. He argues that when privacy intrusions affect a particular group, the intruder communicates a belief in the relatively lower social standing of that group vis-à-vis other groups not similarly affected. For equality purposes, Konnoth argues that rather than lower social standing triggering the privacy intrusion, the intrusion itself can also signal to others to regard the group as having lower social standing: “[P]rivacy intrusions are often combined with other forms of status expression…that specifically identify certain groups as undesirable.” (P. 1561.)

Of course, Facebook is not the government, the subject of Konnoth’s piece. Facebook is a private entity engaging in the intrusion, thus while its actions are disrespectful, it does not have the social-status-generating power that the law does. It cannot grant social status, while the government can. Konnoth argues that if the government legally could do what Facebook did, it would create a unique status problem because when the government disrespects, it marks social status more generally. And it also marks those who intrude with impunity as having higher status.

What to do? Konnoth offers three solutions. The first and third are familiar: end the intrusion and apologize for the intrusion. But it is his second solution that brings the article together: change the privacy norms so that when privacy breaches occur, they don’t feel like intrusions at all. A breach that does not feel like an intrusion likely will not trigger feelings of disrespect. Indeed, so-called “data breaches” are becoming ubiquitous in our modern society, and fears of government spying are widespread. From companies whose job it is to monitor our most personal financial information (Equifax) to technology companies like Facebook, such breaches have already led many of us to feel that there is no such thing as privacy anymore. Furthermore, we have gotten so used to the breaches—what is one or a thousand more?

If Konnoth is right, maybe having more breaches, not fewer, is not such a bad thing.

Cite as: LaToya Baldwin Clark, “Who Do You Think I Am?” or What it Means When We Lose Our Privacy, JOTWELL (March 14, 2019) (reviewing Craig Konnoth, An Expressive Theory of Privacy Intrusions, 102 Iowa L. Rev. 1533 (2017)), https://juris.jotwell.com/who-do-you-think-i-am-or-what-it-means-when-we-lose-our-privacy/.

A New Jurisprudence?

This important and impressive new book by Roger Cotterrell represents a new and original perspective on legal theory, building considerably upon the author’s previous, justly celebrated, work. It calls for a “sociological jurisprudence” (not a mere sociology of law) and for a reorientation of jurisprudential study as a form of social inquiry. The book is not likely to please all jurisprudential scholars, but all should read it and will profit from doing so.

The book is divided into three parts: first, concerning the ‘juristic point of view’; second, transnational legal theory; and third, on “legal values.” I will very briefly explore each in turn.

The first part of the book is devoted to the argument that there is not one single idea of “law” that holds true of all forms of legal order at all times and places. Instead, the inquiry must be an empirical one, generalizing a model with which to describe a great array of regulatory systems. This is possible if one begins one’s theorizing from the perspective of the “jurist,” addressing specifically juristic concerns. For the jurist’s responsibilities and characteristic modes of action are likely to be different in different social orders: in a tyranny, a bureaucratic state, a theocracy or a police state. (P. 34.)

It is nevertheless possible to ask, if the instances of regulation are so various and resistant to being described by one single model, how is one to distinguish between one empirically grounded generalization (which will only fit a percentage of actual regulatory systems) and another? Moreover, the book does not, it seems to me, adequately explain what a “jurist” is, beyond referring to it as an ideal-type. (P. 43.) If jurists’ responsibilities differ within different systems of regulation, how, again, can we distinguish jurists from non-jurist officials who govern otherwise than through law? It would be interesting to compare this idea with Finnis’s viewpoint, which also starts by considering the formation of concepts for sociological inquiry and develops (borrowing from Aristotle) the idea of “focal” concepts.1. Perhaps a second edition of the book might challenge this viewpoint.

The second part, on transnational legal theory, argues that many of the systems that have formed to address transnational legal problems do not readily fit within the models of legal order that are prevalent within domestic jurisprudence. Rather than categorizing all such systems as non-legal (for they are often treated as legal by participants in those contexts), Cotterrell argues that it is our definition or understanding of law that should shift and evolve. Indeed, Cotterrell believes that the presence of such systems indicates that there may be no timeless “essence” of law or legality by which we can measure social systems, to determine whether or not they embody distinctively legal governance. Again, many legal philosophers might reject this idea, but Cotterrell’s sophisticated defence of the idea should at least oblige philosophers to look at and understand anew their theories and underpinning assumptions. Indeed, this part of the book will be of intense interest not only to jurisprudential scholars, but also those working in and around such transnational systems of regulation and “soft law.”

The final part of the book is an extended consideration of “legal values.” Here, the book seems to occupy the same ground as that of legal positivists, for it argues that the values that animate the law (such as justice and security) are not universal but time-bound and place-bound; and that we must therefore resort to what the book calls a “client-orientation” or perspective. Cotterrell writes:

If values are important, it has to be asked how they are important to those whom legal experts address…How do, for example, values of justice and security vary in significance and meaning for different client groups? How does the balance between such values vary in the aspirations and expectations of the legal expert’s clients and audiences—in various public or official perceptions; in certain social groups as contrasted with others? How does it vary in the perspectives of various agencies of the state or in the regulated citizenry, among academic audiences of students and scholars of law, or among diverse popular audiences outside the academy? And how far can any legal expert speak to society at large as the ultimate client or audience? (P. 22.)

Presumably then, this (empirical) perspective must be value-neutral and descriptive? But this leaves open the question how we are meant to elicit these values, even supposing particular “client groups” all hold the same values. Furthermore, if the legal expert’s “clients and audiences” are indeed diverse, how (aside from armchair sociology) are we to go about finding out the values of agencies, citizenry, students, scholars, and popular audiences? Not with such a blunt instrument as voting; but even a careful survey requires the surveyor to choose certain questions and not others, to structure a survey in this way rather than that. But more to the point, if individuals do indeed get their values not from abstract or universal principles, but in the heat of particular contexts and difficulties, how could even the most careful survey provide an accurate account of people’s values?

The final chapters of the book discuss two values in particular that Cotterrell argues are central to at least modern, western states: individualism and social solidarity. The former value has been extensively explored in legal and political theory, so that its inclusion comes as no surprise. But the latter receives virtually no sustained attention, making this the most interesting part of a very interesting book. Clearly individuals will not themselves promote the value of social solidarity in their actions (unless toward family, friends, and perhaps colleagues), so it is up to the law—the jurist—to promote social integration. Cotterrell argues that social solidarity directly arises from economic interdependence (P. 189); but it seems arguable that such extensive and complex economic relationships depend upon prior social cohesion and shared goods such as language.

The book’s discussion of the importance of social solidarity is reminiscent of the work of an earlier positivist, Thomas Hobbes. (In fact Hobbes was also a natural lawyer, but that is a matter for another day.) As Hobbes makes clear, the internal peace and security of the community is more important than, and a prerequisite of, any other form of social good. But the idea of social solidarity is perhaps superior to that of Hobbesian security, for it intimates a realisation that safety and order can only be achieved if they also incorporate at least a degree of justice. I hope this latter idea is one that Cotterrell will return to in future writing.

In all, this is a very interesting, thought-provoking, and beautifully written book. The foregoing scarcely breaks the surface of the ideas involved, and I would encourage anyone who works in jurisprudence to read it carefully and sympathetically.

  1. See John Finnis, Natural Law and Natural Rights (2011), Ch I.
Cite as: Sean Coyle, A New Jurisprudence?, JOTWELL (February 11, 2019) (reviewing Roger Cotterrell, Sociological Jurisprudence: Juristic Thought and Social Inquiry (2018)), https://juris.jotwell.com/a-new-jurisprudence/.