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.
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. 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.
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.
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). 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.
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.
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.
Köpcke’s Legal Validity — The Fabric of Justice is an extremely rich and significant book which displays the excellent analytical and philosophical gifts of its author. It is, to my knowledge, the first book-length treatment of its subject, and contains much food for thought, and comfort, especially for hard and soft positivists. It is a manifesto for neither of those arguments, but its central topic, legal validity, is a preoccupation of both. But its treatment of its other central topic, justice, provides numerous arguments that are of keen interest for natural lawyers. The book, then, puts new ideas onto the table that promise to help break new ground in existing debates about the nature of law.
This brief review cannot hope to mention, even in passing, all of the many insights and lines of argument contained in the book, and, where necessary, simplifies points that are in fact very complex. Furthermore, since this is a review of what the reviewer likes about the book, it will for the most part refrain from intellectual criticism of some of the book’s arguments. I shall, however, raise parenthetical questions. (These are friendly questions. I do not suggest that these questions particularly disturb the author’s account, merely that they are raised by that account.)
It should be noted that the book’s project is pursued further in another book by the same author, A Short History of Legal Validity and Invalidity (2019) that is not reviewed here.
The book begins by drawing attention to the numerous contexts in which lawyers and legal scholars talk about legal validity: legally valid marriages, passports, licences and legally valid criminal statutes. (P. 1.) It asks (i) whether the uses of the term ‘validity’ across these contexts are united by underlying similarities; (ii) what is the moral import of legal validity; and (iii) whether legal validity is limited? (Pp. 3-4.) It answers (i) by noting that legally valid acts are always made, and always amount to a legal power to change legal relations; (Pp. 4, 14) (ii) by replying that legal validity makes possible, and defends, crucial aspects of human good, through ‘specific convergence’ (P. 4); and (iii) by answering that, although legal validity brings specificity to aspects of human wellbeing that are under-determined, it cannot completely close off room for human choice without annihilating human wellbeing. (Question: if legal validity is always a power, what is the significance—legal and moral—of rights, immunities and liberties?) It is an important characteristic of legal validity, or rather of legally valid acts, that they are often the product of many minds at different points in time. (P. 5.) For, by contrast, a tyrannous or repressive regime would typically involve acts of a small number of officials deciding everything about human conduct in advance.
Next, the book briefly examines the treatment of legal validity, or valid legal rules, by Hart and Raz (Pp. 20-24), but the book’s own examination begins (P. 26) with the claim that legal validity is a form of ‘say-so’, e.g. by making an application or concluding a contract. By saying so, one changes one’s legal position (and therefore the legal position of another or others). (Question: is the say-so itself capable of being valid or invalid? Would it thus lose explanatory power?) Oftentimes, one’s say-so produces changes that are not envisaged in the mind of the agent him/herself: for example one rarely reads the lengthy terms and conditions to which one is ‘agreeing’ when downloading an update to a computer’s operating system. But legal relations are changed nonetheless. For this reason it is necessary to contrast certain ranges of legal changes (such as a contract of employment ending one’s entitlement to unemployment benefit) from the acts that trigger those changes. (Pp. 49-50.)
Because a legally valid act comes into being by saying so, the book enters into an analysis of speech-acts (ways of doing/acting by saying) (Pp. 37-48) but wisely avoids a foray into formal semantics (theories of substantive meaning). (Question: is something always legally so because it has been said? Are there not some standards that are so prior to being said? Common law principles/‘rules’ are given their first expression by judges but are held to have existed unformulated and implicit in the common law.) It might be wondered how legally valid acts (one’s say-so) can exist over time, but it is obvious that legal powers and relationships last over time, or ‘circulate’ as the author puts it. (P. 51.) Furthermore, it is possible to commit unintentional legally valid acts, for legally valid acts manifest an intention, but not necessarily an intention to manifest an intention (P. 55), for example by entering into a contract to which one does not wish to be bound, and it is for this reason that the law contains provisions for the avoidance of such acts: the need for witnesses, procedures or other formalities. (Pp. 54-55, 58.) (Question: a tortious wrong changes legal relations unintentionally, but is surely not a legally valid act?)
Valid choices can be identified without recourse to justice. (P. 69.) This makes validity hazardous, but the law achieves justice not despite but because of this feature. For justice requires ‘specific convergence’: the convergent conduct of many persons following specific patterns; it highlights the specific conduct that is due from each individual in the context of a human good that can only be brought about by collective efforts, e.g. refraining from maliciously injuring another as an aspect of promoting the human good of health. (P. 71.) But such conduct only becomes ‘especially apt’ (due?) when there is a context of other practices that foster that good (such as clean air, water and easy availability of food). Such convergent conduct does not mean the same conduct: a tax system typically does not require the same contribution from every person. (P. 74.)
It is necessary to distinguish the law’s marking mechanisms from its enforcement mechanisms (P. 82); both are required for convergence, but legal validity is the law’s mark (P. 83); it is not only a mechanism for change, but a signal that a change has happened. The identification of a valid choice must not be based predominantly upon its merits or content. (P. 87.) (Question: what is the scope and force of this ‘predominantly’? Could this, e.g. leave open the door to natural law theories?)
The next part of the book’s argument is subtle and complex, and impossible to summarise in a short review. It deals with ‘reasons to empower’, which are considerations of justice (Pp. 101-118): these involve four types of reasons: expertise and capacity, proximity, the rule of law and self-direction. The book’s analysis in these pages summarises the principle of subsidiarity and its implications, and contains a lengthy discussion of the rule of law in a manner reminiscent of Fuller: not only in kind, but also in the ambition to connect the abstract requirements of ‘inner-morality’ with concrete legal concerns. If it were possible to identify the best part of an excellent book, this would be it.
In the book’s final chapter, we are told that justice requires the law’s positivity, that is (i) its relative determinacy, (ii) its relative identifiability, and (iii) that it is relatively targeted in approach. What stands out in this section is the following proposition: ‘By the law’s positivity I mean the fact that the legal positions persons are in at any point are determined by the legal meaning of valid acts rather than by moral considerations that are not part of the legal meaning of valid acts.’ (Pp. 124.) Critics may come to ponder the significance of this proposition alongside Gardner’s definition of positivism and Raz’s sources thesis. (Pp. 151-52.) (Question: if moral considerations are sometimes part of the ‘legal meaning’ of valid acts, how does one distinguish between this morality and the morality that is not part of legal meaning? For this is unlikely to be amenable to sharp distinction.)
Later, the author repeats the warning given in this section that ‘validity could not serve as a technique . . . if identifying valid decisions predominantly turned on moral judgments.’ (P. 160.) But I close this very brief and exceedingly schematic review with a quotation from its last page (I hope the author will forgive the very short treatment given to the book’s very rich and complex arguments): ‘Validity makes it possible to craft just relations between persons by dressing those relations in clothing that hides their justice from view. This is why injustice, too, can bear validity’s mark.’ (P. 163.)
“Capital = Asset + Coding” is the axiom that serves as Katherina Pistor’s tool of analysis, to lay bare the role of law in the history of capitalism. An asset can be anything—a plot of ground, a machine, an idea, a debt, a sequence of molecules—but an asset becomes capital when, but only when, it has been “coded,” that is, when it has been endowed with specific modules of legal protection: she calls them priority, durability, universality, and convertibility.
Pistor, the Edwin B. Parker Professor of Comparative Law and Director of the Center on Global Legal Transformation at Columbia Law School, laments that “economists … have clung to the notion that capital is a physical input, one of the two factors of production, when in fact, capital has never been about a thing, but always about its legal coding; never just about input and output, but always about the ability to capture and monetize expected returns.” (P. 116.) Her book has won awards already, including two “best books” citations from the Financial Times. The financial press is taking heed, and legal academics should, too. This wonderful book is destined to inform the difficult way ahead, as global capitalism’s second crisis in a dozen years overwhelms us.
Lawyers have enclosed all manner of assets in these four modules of protection. “Priority” determines who has an enforceable claim on an asset, and in what order. “Durability” is the possibility of capital surviving the death of an owner or the dissolution of a partnership or the claims of a creditor or regulator. “Universality” protects the capital owner against all comers, wherever the asset may be, at home or abroad, or nowhere at all. “Convertibility” means that capital, in whatever asset, wherever held, can be exchanged, on demand, for “state money.” (P. 3.)
The book exposes the continuity over centuries that connects the feudal estate, and its exotic encoding, to the even more exotic collateral debt obligation and credit default swaps circulating in the run-up to 2008, and to the blockchained private currencies of the moment. We lawyers are the masters of this code. Legislatures and courts are the late-comers who ratify—but rarely disturb—what the lawyers do in service to private capital. It was the English solicitors who enclosed the commons for the landed gentry while shielding their enclosures from the reach of creditors. It was the lawyers too who devised debt instruments for the creditors, and who later, as ingenious “conveyancers,” eventually broke open or conveyed-around the code-laid-down. It is the legal code-meisters of our era who have enclosed the digital commons and even segments of the genetic code, converting these raw assets into capital, and then into fabulous private wealth for the few, in the midst of the sinking expectations of the many.
One of many examples: Google owns the data inputed to and generated by the program PageRank —not as a matter of patent (it was Stanford’s, and has expired), but as a trade secret, which is not time-limited. It amounts to a lawyer-devised genus of “data-generating patents” (P. 128) unknown to statute. Pistor calls this and like maneuvers “the second enclosure (this time of knowledge rather than land)…We are now in danger of losing access to our own data and to nature’s code for the sole purpose of giving select asset holders yet another opportunity to expand their wealth at the expense of the rest.” (P. 131.)
Universality and durability are the modules that give capital wings to fly from one jurisdiction to another, as if on “legal steroids,” (P. 9) endowing capital with freedoms that not even the wealthiest natural persons can know. “Capital coded in portable law is footloose; gains can be made and pocketed anywhere and the losses can be left wherever they fall.” (P. 9.)
The limited-liability corporation is a key invention: corporate investors stake only what they pay for shares. The uniquely anglophone device of the “trust” adds another durability: an asset settled into a trust is shielded from creditors of the settlor, of the beneficiary, and of the trustee.
The corporate form and the trust allow practically limitless subdividing, cloning, and nesting, and enable capital to elude the taxing and regulatory authority of the state. Coding can turn a firm into a “capital-minting operation,” in addition to or instead of a business participating in the real economy. (P. 48.)
To illustrate, Pistor performs an autopsy of Lehman Brothers, in its transmogrification from a retail operation in antebellum Montgomery, Alabama, set up by three Bavarian immigrants, to a go-to funding source for clients of Goldman Sachs, to a holding company “with 209 registered subsidiaries in twenty-six jurisdictions” and “hundreds, if not thousands, of special-purpose vehicles, or SPVs, in the form of trusts or limited liability companies” (P. 51) on the verge of its collapse in September 2008, precipitating the Great Recession. Tranched and nested again and again, the underlying assets—in essence only IOUs—became inscrutable. Nobody knew what they were buying and, until the music stopped, nobody cared. The tale has been told elsewhere, yet Pistor’s unpacking of the legal devices involved is novel and chilling.
She spotlights the importance of a shift in the choice-of-law rules. The once-dominant “seat” or “real-seat” theory required firms to incorporate in any jurisdiction where they do business, if they wished to enjoy the benefits of doing business there as a corporation. With the ascendance of neoliberalism, real-seat theory was unseated in favor of “incorporation theory,” which allows a corporation to incorporate in its favorite jurisdiction and nonetheless to enjoy the advantages of the corporate form everywhere it does business—assuming those places accede, as states practically must to play in a globalized economy. Capital is unwilling to call unless it can bring its favorite corporate law along.
Incorporation theory makes it possible for corporations to choose the tax rate they wish to pay. Pistor cites the case of Apple in Ireland. Apple was booking its EU revenues in low-tax Ireland until the EU—despite its adherence to incorporation theory—stepped in and docked Apple for having taken “illegal state aid.” Even so, “tax” and “regulatory arbitrage” and a race to the bottom in labor and environmental standards and corporate tax rates is rampant.
While the internal culture of the big law firm master-coders is restlessly innovative, the external visage of law itself is the opposite. Law presents itself not as an accumulation of clever, contingent, humanly devised advantages, but as an enshrinement of natural entitlements, whose fundamental legitimacy is beyond question. “Choosing the assets” to be encoded is “an exorbitant privilege” accorded to lawyer/coders to the benefit of those who hire them —“exorbitant” because this choice “is tantamount to controlling the levers for the distribution of wealth in society.” (P. 19.) This privilege is “the mother of all subsidies” (P. 222), which is all the more valuable for its sheer legality, giving private interests “enormous cognitive sway” over politics and polities. (P. 20.)
Marx and Engels wrote that capitalism constantly revolutionizes the means of production. Pistor shows how neoliberal capitalism has turned away from research and development of productive means, and toward asset-sheltering and debt-minting best done by the “best lawyers.” (P. 161.) Despite their “special responsibility for the quality of justice” (MRPC Preamble), lawyers “tend to ignore the external effects of their coding efforts.” (P. 166.) The wealth they help create bears less and less relation to the real economy, and skyrocketing inequality leads to popular resentment, alienation, and the widely remarked, ever-growing “democratic deficit.” Capital on steroids cannot stop itself.
The truth is that in a world in which well-coded roving capital faces a diffuse and unorganized public scattered over multiple polities, a social contract is beyond reach,even if capital wanted it for the sake of its own survival. (P. 223.)
Pistor sketches a program for reform, whose “basic task would be to roll back control by current asset holders and their lawyers over the code of capital by limiting the choices at their disposal.” (P. 224.) Leading the roll-back is “a bright-line rule to refrain from offering capital legal privileges over and above the basic modules….” (P. 225.) This will mean limiting capital’s liberty to choose fora and governing law, and refusing enforcement of “purely speculative” contracts. (P. 227.) What else? Abolish the trust? Insist on codetermination in corporate governance? Forbid trading in debt, the asset distinctive of capitalism (77, 200)? She never says what’s “basic” or where the roll-back stops. And how to deal with capital’s push-back?
Claims that [rolling-back] would deny some actors the opportunity to increase the pie to the benefit of all should be eyed with suspicion, as past experience shows that even big pies are usually devoured in solitude or only by invited guests. (P. 225.)
As for the politics, Pistor hopes that the “persistent incrementalism” (P. 229) that has worked for capital’s encoders might also work for the roll-back needed to restore democratic legitimacy. The alternatives are either a “true revolution” or “the further erosion of law’s legitimacy as a means of social ordering.” (P. 234.) In short: expect some form of noncapitalism (to arrive by increments or by revolution), or—despite its recurrent crises—a persistently incremental neo-feudalism (i.e., more of the steroidal same).
If Justice Holmes was right, that the law is nothing more pretentious than a prediction of what (our heretofore largely irrelevant) judges will do, then we, at our “current conjuncture,” haven’t any idea what the law is.
Editor’s note: For a previous review of The Code of Capital see Robert Gordon, Masters of the Code, JOTWELL (September 28, 2020).
Dan Priel, The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory
, Osgoode Legal Studies Research Paper (June 12, 2020), available at SSRN
In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.
Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence.
Priel is dismissive of the type of conceptual analysis that has been central to contemporary analytical legal philosophy (and featured especially by those more inclined towards legal positivist positions, like Joseph Raz, Andrei Marmor, and Scott Shapiro). Priel correctly points out that there is something inherently problematic about offering claims about the “necessary” or “sufficient” attributes of an ongoing social practice like law. He writes: “we have a debate with two moving parts: There is disagreement on both the objects in the world that are laws, and on the account of law. And as a result, no argument can be decisive against a competing view.” (P. 8.)
It should be noted that in this part of the argument Priel occasionally overstates his case. For example, he states that “it is notable that philosophers do not think that philosophy has much to say with respect to ‘what is…’ questions on other human creations.” (P. 5.) He thus overlooks a substantial literature on topics like “what is art?” and “what is democracy?” Even the author’s reduction–why do philosophers not inquire into the nature of golf (Pp. 5, 6, 7)?–has a relatively recent counter-example in a dispute from 2001 (Casey Martin had a medical condition that required him to use a golf cart rather than carrying his own golf bag, but the administrators of the professional game would not allow it–there was a mixed legal and philosophical question, for the purposes of the American with Disabilities Act, regarding whether carrying one’s own clubs was integral to what counted as “golf”.)
Priel does not doubt that there are important philosophical questions to be asked in connection to the nature of law. However, he doubts that the questions that need to be asked are distinctive to law. For example, we should inquire about metaphysics (ontology, grounding) of law, but there is, he argues, no reason to assume that the answer in regards to law will be different than that for other social practices. Similarly, Priel contends, for all the inquiries regarding the “normativity” of law. He rejects the view, put forward by a number of legal theorists, that there is something distinctively troubling about the way mere facts of legal official actions appear to create reasons for action. As Priel points out, we are surrounded by human actions apparently creating norms (of different types): from promises to etiquette to proper language use.
Priel would redirect the focus of jurisprudence: “instead of thinking of jurisprudence as unique because it plays a preliminary role to other inquiries, jurisprudence can make a unique contribution to our understanding of law because it presents the bird’s eye view on law.” (P. 21.) The author describes his own approach as “artificial law theory,” not (primarily) as a contrast to “natural law theory,” but to reflect a focus on law as artifact–as a human creation meant to serve certain purposes. (“Artifact” appears to be the current fashionable focus for legal theory: it is central to recent natural law writings of Mark Murphy and Jonathan Crowe, and it was the focus of a 2018 collection, Luka Burazin, Kenneth Einar Himma, and Corrado Roversi (eds.), Law as an Artifact (2018).)
The second half of the article offers a novel view about the connection between law and morality: but not the well-worn path of the debates between legal positivists, natural law theorists, and others, regarding whether there are or are not necessary moral/evaluative aspects to systems or norms that count as “law.” As a threshold matter, Priel, as a naturalist, is skeptical of the objective view of morality (and the sharp distinction between conventional morality–social norms–and critical morality) that is assumed in most of those discussions. Additionally, Priel wants to question the standard view that law does or should reflect morality: that (e.g.) contract law should, to the extent possible, reflect promissory morality, and that tort law should reflect moral views about liability and compensation.
The picture Priel paints is one where law often diverges from morality, and, in doing so, helps to change and improve morality. The divergence of law and morality in part reflects the artificial nature of law–its technologies of procedure and enforcement, and the developments that follow through doctrinal legal reasoning. Additionally, legal rules and legal enforcement can overcome the well-known problems of self-serving biases and other cognitive biases. As Priel writes, “Morality is a poor guide to action, and it is the poor guidance provided by morality that law fixes.” (P. 33.)
Priel’s vision of legal philosophy ultimately is expansive, incorporating knowledge and tools from other disciplines, and seeking the sort of explanations currently associated with other approaches, like sociology of law and cultural studies:
It includes within its remit questions about the role of ideas and culture in legal development, in the relationship between human nature and law, between technological change and jurisprudential change. It includes discussing how the institutional perspective ties with the individual one (how what “the law says” on a certain issue is related to the attitudes of individuals); the ways legal cultures (legal families, legal traditions) are created, how they are sustained, and how they evolve; and the relations between different areas of law and law in general. (P. 21.)
So while Priel would take away from legal philosophers old discussions about “what is law,” he still leaves jurisprudence with a great deal of work to do.
Cite as: Brian Bix, Dan Priel’s Naturalism
(September 22, 2020) (reviewing Dan Priel, The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory
, Osgoode Legal Studies Research Paper (June 12, 2020), available at SSRN), https://juris.jotwell.com/dan-priels-naturalism/
There is a default theory of legal content that many legal positivists – and non-positivists – accept. It is that the legal contents of texts, or of authoritative pronouncements in general, are, or match, their full (that is, pragmatically-enriched) linguistic contents. Nine years ago, Mark Greenberg published an influential article called The Standard Picture and Its Discontents, attacking what he called the “Standard Picture” predominant among legal theorists. The aforementioned default theory of legal content is one of what Greenberg called the Standard Picture’s “prongs.” Among Greenberg’s objections to this theory, which is sometimes referred to as a “communicative content theory” of law, is that it cannot account for aspects of familiar legal practice. Dale Smith refers to this type of objection as a “practice-based objection.” (He notes that Greenberg is not the only legal theorist to raise a practice-based objection to the communicative content theory.) Practice-based objections, from Greenberg and others, depict an apparent gap between communicative content and legal content. This gap is especially troublesome for many theorists of statutory legal content. In particular, the gap poses a problem for anyone attracted to the idea that statutes are communications from the legislature and ought to be understood and applied the way ordinary communications are.
In this intriguing article, Smith is both friend to a communicative content theory and foe. He is a friend by demonstrating, again and again, how practice-based objections raised so far can be accommodated by such a theory. But he turns foe with his consideration of the practice of using what he refers to as “retrospectively operating modifier laws.” His thesis is that practice-based objections to date are not fatal to a communicative content theory of law, but that there is a practice-based objection that may be.
Smith’s central point from legal practice is that retrospectively operating modifier laws are treated in practice as altering the legal effect of earlier statutory provisions. This produces a gap, sometimes quite significant, between the linguistic meaning of an earlier statute and its legal effect. One of his chief examples is a section of the 1998 Human Rights Act, which changed, in an important way, the interpretation of earlier U. K. statutes. He argues that a statute such as the Human Rights Act cannot be treated as a direction to judges to make new law. Nor is its legal effect a simple aggregation of the linguistic meanings of the earlier statute and the relevant section of the Human Rights act. Rather, the later modifier law substitutes one legal effect (without, in the case of the Human Rights law, sufficiently specifying that substitution) for what the earlier statute’s pragmatically-enriched linguistic content might suggest.
In his argument, Smith assumes that no satisfactory account of pragmatic enrichment of language can take a later modifier law as an input. That assumption appeals to the many legal theorists committed to the view that the pragmatics of statutory language must make essential reference to the intention(s) of the enacting legislature (either actual or what it would be reasonable to suppose they were). (The relevant intentions might be alleged to be either communicative or referential.) If Smith is correct in his assumption, he has made a valuable contribution by clarifying what legal practice does and does not reveal about legal content as communication (according to the received wisdom about the nature of communication). But I must add a cautionary note. It would be premature to conclude that Smith’s is the last word on the communicative content theory. Whether it is depends, in part, on the success of the theory of legal content elucidated by Hrafn Asgeirsson in the first chapter of his The Nature and Value of Vagueness in Law (2020). The debate, in other words, goes on.
It is curious that Anglophone philosophers of law (many of whom have had some training in logic in conjunction with the classwork required for a Ph.D.) ignore deontic logic — the branch of logic that deals with propositions that employ normative concepts like obligation and permission. The point is not that deontic logic can answer problems in the philosophy of law, but that it can help reveal them. This very short paper by Robert Mullins is a wonderful example. It concerns the apparent incompatibility between a commonly accepted inference rule in deontic logic, deontic detachment, and the core principle of positivism, the social thesis.
According to deontic detachment, the following reasoning is valid (if the premises are true, the conclusion must be true):
1) It ought to be that if P then Q.
2) It ought to be that P.
3) It ought to be that Q.
Mullins’s legal example is a law obligating all those who file income taxes to do so by the close of business Friday and another law obligating one to file income taxes. It follows from deontic detachment that one is obligated to file income taxes by the close of business Friday.
Now for the social thesis. Mullins’s formulation is controversial:
Legally it ought to be that φ if and only if the proposition that it ought to be that φ is accepted by legal officials.
Given this understanding of the thesis, there is indeed a conflict with deontic detachment. Although the premises in Mullins’s legal example are accepted by legal officials, the conclusion (that one ought to file income taxes by the close of business Friday) need not be. But that doesn’t matter to its status as a legal fact.
Now someone might question whether legal officials might not accept the conclusion. True, there is no law under which one ought to file income taxes by the close of business Friday. But officials, putting two and two together, would surely have accepted that fact. But as the number of laws (and other law-making acts) increases, one will reach a point at which there are many legal consequences that have not been entertained by any official, much less the bulk of officials. That does not appear to make a difference to their status as legal facts.
What is more, Mullins argues that other rules besides deontic detachment can generate legal facts that outstrip official acceptance. Assume that there is a law under which one ought not camp on public property. Employing closure under logical consequence, it is also the case that Fred ought not camp on public property, and that he ought not do so on Wednesday, and that he not do so on Wednesday while wearing a brown suit. But none of these legal facts has been entertained by legal officials.
Mullins emphasizes those unacknowledged legal facts that follow from laws. But at times laws themselves can be unrecognized. It is possible for a law to have been enacted without the lawmaker, or other officials, being aware of that fact. Accidental lawmaking can occur.
Mullins’s initial account of the social thesis is too strong, however. The usual way that the thesis is put is that the existence and content of the law (or, alternatively, all legal facts) ultimately depend solely upon social facts. The core social facts upon which legal facts ultimately depend do indeed concern acceptance by a community’s officials, but positivists do not insist on a one-to-one correspondence between the legal fact that φ and officials’ accepting that φ. What is required is official acceptance of fundamental rules of the legal system. The legal fact that the United States Constitution is binding ultimately depends upon American officials’ accepting that it is. But countless other legal facts concerning the American legal system can obtain without American officials’ recognizing them at all.
In the end, this is precisely the point that Mullins seeks to make. The social thesis must construe official acceptance narrowly, in a way that allows legal facts to outstrip official attitudes. And this is, I believe, an exceptionally important point — the implications of which have not always been taken to heart by positivist philosophers of law. If the legal fact that φ can obtain even though officials do not accept that φ, there must be some facts other than social facts about official acceptance by virtue of which it is a legal fact that φ. What are those other facts?
I think positivist philosophers of law should concede that the requisite facts concern abstract objects: facts about the fundamental rules of the legal system and facts about the rules that are identified as laws by those fundamental rules. Although this point has not been widely recognized by positivists, I think some would be quite willing to concede this role played by abstract-object facts in determining legal facts. See Shapiro, Legality 102-04 (2011).
An analogy with a language is appropriate here. Some philosophers of language understand languages as abstract objects — in particular, functions from strings of scribbles or phonemes to propositions (which are themselves abstract objects). Under the abstract object that is French, “Il pleut” takes one to the proposition it-is-raining. Such facts about French are not social. They can’t be, for there is an infinite number of such facts about French, more than any person could ever entertain. Nevertheless, what makes it such that the French speak French — what connects them to that abstract object (rather than, say, to Esperanto) — is social facts about the French people.
Positivists should take the same approach. The abstract object that is the American legal system is not social. It can’t be, for (as Mullins shows) there are more facts about this system than can ever be entertained by American officials. But what makes it such that Americans have the American legal system — what connects them to that abstract object — is social facts about American legal practices, in particular, facts about official acceptance.
This is a relatively limited challenge to positivist theories of law. A prominent theme in Ronald Dworkin’s writings is the existence of theoretical disagreements, in which officials disagree about even the fundamental rules of the legal system, while nevertheless thinking that their disagreement has a preexisting legal answer. Dworkin, in effect, argues that social facts about official acceptance cannot determine what legal system should be assigned to a community. That can be done only if we include moral facts as well. This challenge to positivism takes us well beyond the one presented in Mullins’s paper.
As a private law theorist, I have been captivated recently by the work of public lawyer Thomas Poole on the concept of prerogative. Poole developed his account most fully in his analytically brilliant and deeply learned book, Reason of State: Law, Prerogative and Empire (Cambridge 2015). Poole has continued to refine his thinking about the concept of prerogative in more recent work, including The Strange Death of Prerogative in England, in response to a spate of recent cases in England. What is so compelling and illuminating about Poole’s work on prerogative for a private law theorist? Private law theorists have long assumed that the most philosophically interesting questions in the field concern the structure of interpersonal rights and duties—what we owe each other. As a group, we have tended to stick to those areas of doctrine, like tort and contract, that repay close attention to such structural questions. Other areas of private law doctrine, especially property and equity, have not been not well-integrated into accounts of private law focused on interpersonal relations. That may be because they raise questions and invoke concepts outside the core of private law theory today. Equity, in particular, challenges the sufficiency of understanding private law as a framework of predictable, durable and standardized rights and duties. I may have a property right in law only to find that equity directs me to exercise it in ways the law does not require of me—or be held in contempt. I may have a contractual right to your performance of a contract but equity may prevent my enforcing it when I have led you to act to your detriment on the belief that you need not perform. Equity appears, then, to be a cluster of doctrines that lie on the outer edges of private law.
One way to chart the path forward to a more complete and unified understanding of private law –one that includes equity—is to look at how, in the context of public law, Thomas Poole has worked out the idea of the prerogative in institutional, conceptual and normative terms. The concept of prerogative, Poole argues, is best understood not as the bundle of prerogative powers that public lawyers of old enumerated nor the purely political conception of emergency powers outside the grip of law, but rather as a constitutional idea of prerogative: a distinct claim of imperative authority associated with guardianship of the State and that functions to stabilize and maintain the integrity of the legal order itself.
The ramparts of Poole’s concept of prerogative are the classic accounts of Dicey, Locke and Blackstone, which, properly fortified, are defenses against the doctrinarism, sentimentalism and political cynicism that have weakened understanding of its nature, core elements and proper locus in the constitutional order. Poole takes himself to be sifting through these classic accounts, taking apart and reassembling the pieces in a way that better reveals the idea of prerogative as a complex whole. What Poole delivers is an idealized explanation of prerogative as a special and distinctive claim of authority that finds doctrinal expression in a number of familiar prerogative powers, including the power of mercy, war, empire and trade. In all of these powers, the elements of prerogative are present. The features of prerogative power, Poole argues, are that (i) it is residual in nature, belonging to the executive in its capacity as guardian of the state; (ii) it is authority of an imperative or directive kind (not expressing itself then in the form of laws of general application); (iii) it is directed primarily at officials (not subjects); (iv) it has distinctive analytical properties, including, most mysteriously, its affective aspect (“As a residual symbol of majesty and lordship, prerogative taps into a sentiment now barely glimpsed and almost shameful to modern constitutional sensibilities” (p. 54)); (v) the concept is a unified whole, weakened where any of its elements are diminished; and (vi) it has a place within the constitutional framework even as it occupies an almost external space, law looking in on itself.
Poole’s own thinking about the prerogative in the public law context is rather deflationary. He believes that crucial elements of the concept—especially its affective dimension and the deference that once provoked from courts— either have already been or are on the way to being eliminated from British constitutional thinking today. In the British courts’ increasing refusal to defer to the executive in the exercise of core prerogative powers (as in the Brexit case), Poole sees signs of the death of the prerogative.
Here, then, is where private lawyers can both profit from Poole’s conceptual and normative analysis of the idea of the prerogative and perhaps turn around and export some insights from private law on the role that the prerogative might continue to play within the modern constitutional order, despite the transformation underway. The power to do equity was itself originally bundled together with other incidents of royal prerogative, the power to pardon, grant dispensations, charters, dignities, all powers in some sense to make exceptions. Even as equity has migrated from the executive to the judicial branch, even as much of its operations have been juridified over time, equity continues to occupy a similar legal terrain in relation to private law as the prerogative does in relation to law generally. The power to do equity is the power to preserve and safeguard the integrity of a system of rights. Courts, not the executive branch, are now the agents of equity and custodians of the private law order (not merely refusing to defer to officials within the executive branch but wholly taking over guardianship authority in their stead). But core elements of equity that are so like core elements of prerogative power —its affective dimension, found in its appeal to conscience and honor, its function to safeguard the framework of rights, its imperative nature, directing those with discretion and power within the system of rights to exercise it in ways that conduce to the stability of that system—all remain. Courts in doing equity thus claim a kind of authority that we can and should distinguish from the core judicial authority courts wield when they are simply enforcing private rights. Even as equity has undergone profound institutional change, equity as a concept remains, a standpoint on the private law order required to ensure its integrity. This points, perhaps, to a future for the development of prerogative in public law, whatever branch of government is the repository of that authority.