Foucault and Rights is intriguing and impressive at two levels: one exegetic; the other political. They can only be separated analytically, and they overlap and are interwoven in this book, but beyond a brief characterization of the exegetical virtues of the work, I will focus on politics, for two reasons. The first is simply that I am not a specialist on Foucault’s oeuvre. So I will not pretend to provide for Golder what he does so well for Foucault: an immanent exegetical critique. I will just say that Foucault and Rights is a masterly account and meticulous excavation of some of the deeper layers of Michel Foucault’s thought, postulating and persuasively arguing for underlying coherences in the face of apparent surface inconsistencies. It is exemplary immanent critique: immanent because the aim is primarily to explore the internal theoretical resources of Foucault’s thought to situate what he has to say about rights; and critique in a classical sense that does not immediately imply disagreement, still less hostility but is compatible with deeply sympathetic archaeological recovery and reconstruction; to use Golder’s phrase from another context, ‘critical affirmation’. The exegesis is assured, authoritative, intimately versed.
A second reason to think separately about the political concerns of this work is that they are important and unconcealed motivators – not determinants but motivators – of the interpretation Golder arrives at. For Foucault’s late invocations of rights present not merely an apparent problem of intellectual coherence, given his early critiques of what many have taken to be the metaphysical grounds of liberalism generally, and rights talk more specifically, but an apparent source of both political embarrassment to adepts and disciples of the earlier Foucault, and unembarrassed glee mixed with Schadenfreude to erstwhile liberal critics, who are pleased he had come to his senses at last.
People of a certain age, and alas I am one, might have a feeling of déjà vu all over again, confronted with this predicament. We have been here before. There was Althusser’s strenuous and Stalinist insistence on an ‘epistemological break’ in Marx’s thought, to avoid being sucked into his political embarrassing critical philosophy. Later, and at the darkest extreme, they will remember the discomfort of many of Heidegger’s philosophical admirers or those of Paul de Man, when their political allegiances were revealed. Altogether less sinister, and closer to our subject, is the furore that that doyen of Marxist historians, E.P.Thompson, caused when in Whigs and Hunters, a book which for 258 of its 269 pages would have raised no controversy on the Marx-inspired Left, ended with an eloquent paean to the rule of law as a ‘cultural achievement of universal significance’. There would not have been much of a fuss, or even notice, if Hayek had written such a coda, but it was deeply disquieting to many who considered themselves to have been on Thompson’s team. Many of his erstwhile supporters found these eleven pages in a life’s work inexplicable, and if explicable unforgivable. He had gone over to the Dark Side. My own feelings in 1976 were a bit different. I became fond of Thompson precisely at that time, and for that reason, and have remained so. Reading Golder’s account, it’s beginning to happen again with Foucault.
I should come clean. I like liberal rights. My aim will be less to engage with the detail of Golder’s exposition of Foucault, which, to repeat, I find meticulous, impressive and persuasive, than with the Other of the book: the liberal challenge. Golder nowhere denies that Foucault made numerous, often eloquent, invocations of rights in his later political interventions; indeed they are the occasion of his book. But he resists any interpretation of these as a conversion to liberalism. At his most positive, he sees in them ‘critical affirmation’ of rights talk. (P. 154.) As the book goes on, however, affirmation pales in the stronger light of subversion. For Golder finds Foucault not appropriating or subscribing to liberal rights ‘in a way that is consonant with and thoroughly contained by the ordering idioms of liberal political thought … [but rather] in ways that might seek playfully to contest, mimic, subvert, or tactically outrun them, that is, to read them performatively and put them to different, contrary uses.’ (P. 67.) He develops ‘a critical, subversive, appropriatory praxis of rights which, far from denying their value or utility, actually celebrates the ways in which they can be put to different, and contrary, uses.’ (P. 159.)
As the argument picks up speed, the language becomes increasingly militarized. On Golder’s account, explicitly drawing on Clausewitz, Foucault’s use of rights is ‘tactical’, ‘instrumental’, not ‘strategic’, they are ‘deployed’ rather than respected; in the service of subversion, resistance, and ‘critical counter-conduct’. Affirmation is never rejected in this account, but I must say that by the end of the book it is pretty tightly squeezed; with affirmation of this sort, you might prefer some rejection. Thus, although Foucault ‘expresses his political interventions via the liberal idiom of rights, [he] ‘performative[ly] undermine[s]’ them in the process.’ (P. 20-21.) Again, he employs law ‘(or any other assemblage) [as] a kind of insubordinate, disobedient, and potentially subversive deployment that plays the game in a way that does not respect the stated purpose of the game and hence troubles and possibly undermines it.’ (P. 117.)
Why is it so important to emphasize the critical, subversive, ruptural, possibilities of Foucault’s invocation of rights and human rights so much more than the apparent plain and simple affirmation of them that appears to occur in his critiques of Iranian and Polish dictatorship, arbitrary treatment of prisoners, and so on, where subversion of rights seems the last thing on his mind? One can learn that from the contrasts Golder employs in the last pages of his book, and the language Golder uses to characterize what is at stake. His own interpretation is, he says, ‘a far more revealing (and convincing) framework with which to view Foucault’s late turn to rights than one of a resigned and defeatist rapprochement with an anti-utopian liberalism of human rights and rule of law promotion.’ (P. 154.) Golder offers ‘an antidote’ to the ‘glib reclamation’ of Foucault’s writings ‘as “liberal”’. Foucault does not ‘suddenly pick up the tools of liberalism because of a Damascene, utopian faith in their possibilities. Nor does he turn to rights disappointedly because revolution has failed.’ (P. 155.) The way Golder sets up the options, if Foucault can’t be reclaimed as a practitioner of ‘critical counter-conduct’, the alternative would seem to be that he must be a liberal, with all the commitments, ontological, epistemological, moral, economic, and above all political, of the species. And who wants that?
In one footnote, Golder concedes that his account of liberalism might not be as close or meticulous as his rendering of Foucault, but he says fairly enough that Foucault, not liberalism, is the subject of his book. (P. 171-72.) And yet, liberalism, or Golder’s substantial characterizations of it, its presuppositions and its contrasts with what Golder finds to be laudable in Foucault’s deployment of some of its instruments, are the constant foils with which his own account is contrasted. Liberalism, or ‘orthodox’ liberalism, is assumed to carry all sorts of identifying commitments, metaphysical, sociological, political, and normative. If we were to concede that Foucault had joined the camp of liberals in his eloquent and passionate invocations of rights, we are led to believe, he would have to share all those commitments, which we don’t like, and some of which in his earlier writings he had trenchantly and influentially criticized.
I believe, by contrast, that to pit Foucault’s thought against such a homogenized ‘liberal’ package can mislead for at least two reasons. First, as Stephen Holmes has observed, ‘One of the greatest obstacles to a fresh understanding of [liberal] rights is the tyranny of false polarities. Political theory lives in thrall to a sequence of binary schemes’. Secondly, and in part because of this stark sort of polarization, because the noun can too easily at once include too much and exclude too much, it is both over and under inclusive. The universe of political choice might well be miscast if too quickly boxed into one or another allegedly distinct and self-sufficient, worse still exhaustive or exclusive, style or tradition of political thought.
A few examples. Golder treats liberalism as an ideology that has deep ontological and other commitments, whereas Foucault by supposed contrast ‘treats liberalism not so much as an ideology but rather as a way of governing.’ (P. 69.) The same might be said, however, of Montesquieu and Tocqueville, Holmes and Judith Shklar, for whom the ‘overt purpose [of liberal interventions]… is purely political.’ Again, among many splendid Foucaultian aphorisms that I have now learnt from Golder, there is: ‘My point is not that everything is bad, but that everything is dangerous.’ (P. 103.) Lord Acton, Shklar and Holmes could not have said it better; they might be proud to have said it as well.
We are told liberals and particularly liberal human rights theorists are disposed ‘not to condemn the structural violence of poverty or inequality, but rather to expose practices like state killing and torture.’ (P. 151.) But what then of the concerns of Rawls, Sen, Waldron, Holmes, and American liberals as distinct from conservatives, who fight with libertarians over just such matters as the structural violence of poverty and inequality (and also dislike torture)? Again, liberals are taken to be stuck with a fundamental and intertwined dichotomy between the individual and the state, whereas Foucault ‘problematizes the liberal dyad of state and individual.’ (P. 130.) He is hardly the first to do that. It puts him square in the camp of his French ancestors, Montesquieu and Tocqueville, liberal giants who constantly ‘subverted’ such a dyad, obsessed as they were with the significance of ‘intermediary groups’, civil associations, the tyranny of the majority, and so on. Finally, Foucault is praised for challenging existing arrangements without relying upon a ‘positive’ (substantial and substantializing) normative vision of what the world should be.’ Rather than postulating some specific alternative, his enterprise is, in terms of his coinage, ‘”nonpositive affirmation” … “essays in refusal.” … Foucault’s critical stance commits him to neither advocacy nor rejection of either of these elements [foundationalist account of subjectivity and a juridical theory of sovereignty] of rights discourse.’ (P. 37.) His ‘mobile and iterative understanding of freedom refuses, as per liberal or utopian understandings, to reify the concept or to mark it as foundational or as a finished state of affairs. Freedom is a ceaseless work without any guarantee.’ (P. 112.) How welcome would this statement be to the tradition that Judith Shklar expounds and endorses as ‘the liberalism of fear’, which:
‘concentrates on damage control … one may be less inclined to celebrate the blessings of liberalism than to consider the dangers of tyranny and war that threaten it. For this liberalism the basic units of political life are not discursive and reflecting persons, nor friends and enemies, nor patriotic soldier-citizens, nor energetic litigants, but the weak and the powerful. And the freedom it wishes to secure is freedom from the abuse of power and intimidation of the defenceless that this difference invites. (P. 9.)
The liberalism of fear, Shklar goes on to insist,
does not …offer a summum bonum toward which all political agents should strive, but it certainly does begin with a summum malum, which all of us know and would avoid if only we could. That evil is cruelty and the fear it inspires, and the very fear of fear itself. (P. 10-11.)
No form of liberalism has any business telling the citizenry to pursue happiness or even to define that wholly elusive condition. It is for each one of us to seek or reject it in favour of duty or salvation or passivity, eg. Liberalism must restrict itself to politics and to proposals to restrain potential abusers of power in order to lift the burden of fear and favour from the shoulders of adult women and men. (P. 13.)
Of course, not all liberals agree with Shklar. Some have metaphysical commitments, others different political commitments. But that is part of my point. Liberalism is a broad church. Foucault comes to condemn tyranny in Iran and Poland, for example, in eloquent, incisive, and highly liberal terms; he says in conversation with Jonathan Simon (and it appears to the latter’s surprise) that ‘we could define the right as the limits of the exercise of power: limits which are implied by the definition, the goals, and the rational structure of power‘. I think he should simply be praised for that without fear that he is hitching up to a host of commitments which many liberals who agree with him do not share.
I conclude with a semantic point that has, I think, more than semantic significance. If I were to voice one criticism of the semantics of Golder’s book, it is that the major choices it posits are between Procrustean collective nouns rather than differentiating adjectives. I think it should be the other way around. If the question is whether the late Foucault embraced liberalism, became a liberal, then the answer seems to force a huge choice, which those unwilling to sign up to a laundry list of ‘liberal’ commitments might baulk at. But if you ask whether the attitudes he expressed, and the sensibility he expressed in his writings on Iran and Poland etc are liberal, then it seems to me simply and wholly accurate to say: of course they are. And I don’t find much ‘critical counter conduct’ in them.
I was in Poland at roughly the same period as Foucault – post-Solidarity; pre-post Communist – and there is not a word he wrote with which I would disagree, though I could not have said it as well. These are liberal sentiments, and there are hosts of people of illiberal sentiment who would then, and do now, reject them – in Poland and elsewhere, particularly but not only in our Trumped-up world. In my view, such liberal sentiments should be sources of celebration, not embarrassment. One should be less uneasy to find them displayed without subversion, rupture, playfulness, than to celebrate them, defend them, worry about their fragility, treat them with utmost seriousness, and strive to protect them. Because they were then and they are now precious, and under threat all over the world. As I read these invocations of rights, in all but the somewhat overrefined remarks on euthanasia that Golder takes to be exemplary and that seem to me excessively ‘playful’ about unplayful states of affairs like dying in excruciating ways, Foucault understood all this and was admirably liberal in his responses to them. In the light of that, whether or not he can be convicted of being a card-carrying liberal, a liberal pur sang, is the least of my worries.
Every once in a while a book comes along that completely changes the way scholars think about their field. In the realm of what is referred to as “Action Theory,” Elizabeth Anscombe’s Intention was such a book. Together with Ludwig Wittgenstein and Gilbert Ryle, Elizabeth Anscombe pioneered a revolution in philosophical thought that replaced the Cartesian paradigm of inner reflection with an emphasis on thought and meaning grounded in intersubjective practices and public criteria of meaning.
John Hyman works in the tradition of analytic philosophy of mind just described. His previous work has been in aesthetics (he is Professor of Aesthetics at Oxford) but, over the years, he has developed a position in action theory that is informed by the work of philosophers in the tradition mentioned above. In the book under review, Hyman works through the work of the philosophers just mentioned and advances a new way of thinking about human agency. His book should be of special interest to lawyers as it contains illuminating discussions of many topics found in law (e.g., will, action, act and knowledge).
Hyman’s book centers on what he calls “The Modern Theory of the Will.” Starting with Descartes and running through much of British Empiricist philosophy (as well as Bentham and Mill), human action is conceived of as a mental act of will that manifests itself in physical action. As the source of all voluntary or intentional action, the will is the engine of human activity: the will is the mark of human agency.
Hyman argues that the Modern Theory of the Will is a simplistic and explanatorily troubled picture of human action. It is simplistic in that all of human action is reduced to a single paradigm: the will as the seat of all action. It is explanatorily troubled because, owing to its simplicity, there is confusion over the proper explanatory categories for human action. I shall consider one of these in a moment. First, let me present Hyman’s taxonomy for understanding human action.
The centerpiece of Hyman’s analysis is his view that human action has four distinct and irreducible dimensions: physical, psychological, ethical and intellectual. The principal error of the modern theory of the will is to confuse and conflate these four dimensions. By disentangling each of these from the garbled narrative that is the modern theory of the will, Hyman demonstrates how human action can be understood in more perspicuous and efficacious terms.
One of the best examples of the power of Hyman’s four dimensions of human agency is found in the distinction between intentional and voluntary action. At least since Anscombe, voluntariness and intention have been joined together. The conventional wisdom is that an act done intentionally is done voluntarily. Hyman shows why this view is false. In drawing the distinction between these two concepts, Hyman identifies voluntariness not as a psychological notion but as an ethical one. An act is voluntary, Hyman argues, “if it is due to choice as opposed to ignorance or compulsion.” (P. 7.) Voluntariness is a negatively-defined concept. A certain act is voluntary “if, and only if, it is not done out of ignorance or compulsion.” (P. 77.) Compulsion, such as duress, has the effect of negating voluntariness. Hyman shows how voluntariness—properly understood—gives us fresh insight into duress. If he is right, then the law may need to rethink its understanding of this central notion.
I shall consider Hyman’s argument from the point of view of contract law. The question about duress, Hyman argues, is “whether a person who acts under duress acts voluntarily.” (P. 81.) When voluntariness is linked with the intentional, this can lead to paradox. In one of the most interesting discussions in Action, Knowledge & Will, Hyman analyses this paradox, specifically in the legal context. Generally speaking, “voluntariness is associated with choice.” (P. 81.) When he was Lord Chief Justice, Lord Widgery gave the following summary of duress in a perjury case (Hudson and Taylor). He wrote:
It is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) if the will of the accused has been over- borne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused.
Hyman notes that “the majority of judgements in criminal and civil cases involving duress have endorsed Lord Widgery’s position.” (P. 82.) But there is an opposing view, one held by some jurists and not a few scholars. The view is simply stated: threats, no matter how terrible, “influence but do not abolish choice, and therefore do not negate voluntariness.” (P. 82.) This position—Hyman dubs it “the revisionist position”—has serious implications, if for no other reason than “[a]t the limit, it might seem to undermine the justification for a defence of duress entirely.” (P. 83.) Hyman puts it this way: “a person who gives way to duress could choose to resist, even if doing so would be dangerous; and a person who pays a fine or joins the army as a conscript could refuse to do so, even if this would be unwise, futile, or wrong.” (P. 81.) Taken together, the two positions present an antinomy (a paradox) about duress, which expresses itself in competing intuitions.
Getting clear about duress means understanding the relationship between ability, possibility, and choice. In every case of duress, the victim could have refused to comply with the demand and endured the threatened act. In such situations, we say “I had no choice.” Hyman thinks that this statement—which is quite common in such circumstances—is “a clue rather than a solution to the puzzle about voluntariness and choice.” (P. 93.)
Hyman offers a three-part test of voluntariness. This test dissolves the antinomy regarding duress in a way that accommodates our competing intuitions about the concept. First, if one does an act to avoid a threatened harm of sufficient gravity, then the act is not done voluntarily. Whether someone acted voluntarily may turn on whether they believed they had a choice, an alternative. Thus, “there is an inescapable subjective element in the concept of voluntariness . . . .” (P. 97.) Second, whether or not someone really had a choice “depends both on the severity of the threat and on the value of the interest sacrificed by giving way.” (P. 98.) Finally, a person compelled to do something in response to a threat is—ceteris paribus—able to resist. Thus, “if it is possible for someone to avoid doing something, it does not follow that he does it voluntarily.” (P. 98.)
The conventional legal understanding of duress is that the party asserting the defence needs to show that the wrongful threat or act was such that his or her will was overcome. I have no doubt that focus on the will—a psychological focus—can be explained as a corollary of the dominance of the modern theory of the will. Hyman substitutes focus on the will with a revised conception of voluntariness. His three-part test replaces the “will theory” of duress.
In addition to resolving the antinomy regarding duress, Hyman’s analysis shows what is really at stake in judgments about duress. What we care about is not so much the will (a causal focus) but the impropriety of the threat that gives rise to the claim of duress. What Hyman accomplishes is a reorienting of our understanding of duress from a psychological to an ethical perspective. This will not only clarify what is really going on in these cases. Further, it will set the stage for a wider inquiry into the relationship between legal doctrine and the four dimensions of human agency.
There is a great deal more I could discuss from this fascinating book. For one thing, Hyman offers a new account of the nature of knowledge, a topic that has preoccupied philosophers for millennia. There is so much in this book for lawyers. Written in accessible prose, the book is a must read for anyone with an interest in the philosophy of action, epistemology, and legal theory.
Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in
The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics
, forthcoming 2017), available at SSRN
Law is pervasively interested in the proper understanding and application of texts: contracts, wills, trusts, agency regulations, statutes, constitutional provisions, etc. Legal interpretation is obviously central to legal practice, and it is not surprising that legal scholars would come to look to literary interpretation and philosophy of language for insight. The discussion of literary interpretation, and what lawyers, legal scholars, and judges might learn from it, has been one of the themes of the Law and Literature movement. The recourse to philosophy of language has been slower and less well publicized; however, there is now a growing literature applying philosophy of language to problems in law (e.g., Alessandro Capone & Francesca Poggi (eds.), Pragmatics and Law (Springer, 2016); Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law (Oxford, 2011)).
Brian Slocum is one of the most important scholars working at the intersection of legal interpretation and philosophy of language, as exemplified by his recent book, Ordinary Meaning (University of Chicago, 2015). In that book, Slocum contrasted one of judges’ favorite touchstones when interpreting documents, “ordinary meaning,” with the idea of “communicative meaning.” In the present article, Pragmatics and Legal Texts, Slocum offers a parallel contrast: between “literal meaning” and “communicative meaning.” To understand the “literal meaning” of a text or statute, one need only understand the meanings of each constituent term and how they fit together grammatically and logically to express a proposition. This process is meant to be independent of any considerations of the context of utterance. The article defines “communicative meaning” differently, as “what an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context.” (P. 2, footnote omitted.) This meaning can differ from the literal meaning because communication is a cooperative activity, which presupposes several further norms that can affect the communicative meaning of a statute or text in the context of utterance.
These matters touch on ongoing debates in legal interpretation. There are formalists in contractual interpretation who oppose interpretation in light of customs or context or on the basis of party understandings that vary from the apparent meaning of the text. There are “textualists” who argue that statutes should be interpreted according to the “plain meaning” of the words enacted, without any reference to the statute’s purpose. There are originalist theorists who argue that the meaning of provision of the United States Constitution is “fixed,” or at least significantly constrained, by the original understanding of the terms used (“original” here meaning at the time of ratification). What is sometimes missed is that when judges and legal scholars argue for and against such “literalism” in legal interpretation, they are not really advocating for literalism in its most narrow and precise meaning. As Slocum points out, a certain amount of reference to assumed communicative intent is accepted even in the most “literalist,” “textualist,” “formalist,” or “originalist” approaches. The article illustrates this using a commonly referenced canon of interpretation, “ejusdem generis,” under which a general term at the end of a list is assumed to be constrained by the category in which the other items in the list fall. Slocum gives the example of a statute that regulated “gin, bourbon, vodka, rum and other beverages”; in that statute, “other beverages” would be understood as not covering (non-alcoholic) sodas, even though sodas clearly fall within the literal meaning of “beverages.” (P. 13.) It is the immediate context of the term “beverage” in the text—the other beverages listed—that alters what the term is held to mean. Also, a sign on a building stating that “no dogs, cats, or other animals allowed” would not be read as applying to human beings, even though human beings are animals. (Pp. 19-20.) The way that context can make perceived meaning of a word or sentence vary from literal meaning (narrowly understood) often goes under the labels “pragmatics” or “implicature”—both discussed at length in Slocum’s article and in his other works.
A basic question for those working in—or just reading about—the intersection of philosophy of language and philosophy of law relates to the ultimate objective of the exercise. Is it description or prescription? Are we just getting a clearer understanding of what we (judges, lawyers, law professors) are already doing when we interpret and apply legal texts, with some of the benefit being a more sophisticated terminology for our descriptions; or are we learning the proper way to interpret, lessons that will lead us to change our current interpretive practices? For some academics, no research project is valuable unless it is prescriptive: that it leads to some “bottom line” argument for reform (or defense of current practices against other scholars’ arguments for reform). I think that this attitude is too narrow, and that good descriptive projects are also worthy of our time and attention. In Slocum’s work, the project appears to be primarily about clear explanation (and, secondarily, contesting the explanations by some other commentators), rather than any argument about changing legal practices. For those who want a clear overview about interpretive issues in law, and how these can be understood in terms of philosophy of language, Slocum’s works are an excellent place to start.
Cite as: Brian Bix, Philosophy of Language and Legal Interpretation
(May 29, 2017) (reviewing Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in
The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics
, forthcoming 2017), available at SSRN), https://juris.jotwell.com/philosophy-of-language-and-legal-interpretation/
For too long the focus in philosophy of law has been the national legal system. As some have already observed, this ignores public international law. But it also ignores private international law, or (as Americans would call it) the conflict of laws. Private international law is less about creating laws and judgments that bind nations than it is about coordinating nations’ existing laws and judgments. Philosophers of law also tend to ignore similar coordination within a national legal order. Not much is said about federalism, subsidiarity, and administrative law.
The focus on the unitary national legal system extends to how philosophers of law use the concept of authority. As Joseph Raz has argued, an authority provides a service: those subject to the authority are better able to comply with their reasons for action by doing what the authority says than by considering the reasons directly. For example, a doctor will be an authority for me if I am better able to do the right thing medically by following the doctor’s orders than by acting on my own reasoning about medical matters. Simply because lawmakers are considered to be authorities does not mean they are. But because lawmakers claim authority, even if they may not have it, authority is considered essential to understanding the law. Because of the focus on the unitary national legal order, however, philosophers have concentrated on the relationship between a single authority and its subjects—how the authority mediates between its subjects and their reasons for action.
In this article, Timothy Endicott considers the question of coordination between authorities. When should an authority go along with the decision of another authority, even when it thinks that decision is in error? Here is one of his examples: “A mother arrives at the school football game to find her son fighting with another small boy, and the other boy’s father is trying to exert his authority to solve the problem.” (P. 1.) The goal is to use general lessons drawn from such situations to illuminate areas of the law that concern the coordination of authorities, like private international law and administrative law. (My focus will be the former.)
These general lessons, Endicott repeatedly emphasizes, are very modest. Too much depends upon the particulars. Nevertheless, he is able to put important concepts in private international law in a new light.
An example is jurisdiction, both adjudicative (that is, the power to issue a judgment binding on the parties to a concrete dispute) and prescriptive (the power to create laws that prospectively regulate transactions). In private international law, jurisdiction tends to be read territorially. Under Endicott’s reading, this can be explained by the fact that French officials are probably better (and certainly no worse) at exercising the service of authority concerning persons, property, and events within France than American officials are. The point is not that this is the actual reason for the territorial nature of the positive law of jurisdiction. That may be based in the extent of the sovereign’s capacity to coerce. Rather, this is a reading of jurisdiction in the light of the law’s claim to authority.
But the biggest payoff is Endicott’s interpretation of the fuzzy and contested concept of comity. Assume that a French court issues a judgment in favor of a French plaintiff against an American defendant concerning a French business transaction. The French plaintiff then sues in an American court, asking that the defendant’s American assets be seized to satisfy the French judgment. The reason for the American court to give effect to the French judgment, it is sometimes said, is comity.
But theorizing about comity seems to vacillate between two unsatisfying poles. On the one hand, comity is understood as mere courtesy or reciprocity between sovereigns. That makes it sound too weak and discretionary. On the other hand, comity is understood as a duty of one sovereign to another. That makes it sound too strong and unyielding.
Endicott argues that we cannot understand comity by considering only the relationship between the authorities. We must think of their relationship to the people they serve. To the extent that the American court should go along with the French court’s decision (whether or not French courts would do the same were the situation reversed), this is because it would serve the parties subject to the authority of the American court. If the American court unjustifiably ignores the French court’s decision, the wrong would be to the parties, not to France.
Notice that it does not follow that an authority should always go along with the prior decision of another authority within its jurisdiction, even when one throws in independent justifications, like the benefits of finality. The service the second authority provides is likely to be different from the first’s. As Endicott emphasizes, there are too many relevant considerations to come up with hard and fast rules. But, out of concern for those subject to its authority, the second authority should act, whenever possible, with respect for the legitimate authority of the first.
In this interesting and clearly argued article, Kimberley Brownlee investigates the extent to which the law can serve as a model of virtue. She rightly points out that many ethicists understand law deontologically, as a set of principles that determine rights and duties: in other words, that for law to embody a morality, this morality must be essentially law-like. The article observes that the law’s various concerns cannot be entirely reduced to deontology (P. 5), but there is in any case room for dissatisfaction with the idea that deontology and “virtue ethics” are opposing conceptions of morality. Aquinas, for example, devotes the entire secunda-secundae of the Summa Theologiae to a discussion of the virtues, but does not hesitate to identify duties to be performed (including the human being’s duties to God).
One interesting observation at the outset of the article is that the law “tends toward injustice.” This is a very arresting comment, and it is a shame that there is no discussion of it. For one thing, it runs contrary to the much-repeated idea of Lon Fuller that the law “works itself pure,” that is, tends toward justice over time, or to the classical common law philosophies of writers such as Hale or Coke, which regarded the law as the accumulation of reason. One could also point to the natural law content of positive law: the suppression and punishment of criminality, maintenance of the inner tranquility of the state, the restraint of fraud, sexual crimes and civil wrongs, regulation of contracts and so forth. In all such cases the tendency of the law seems to be toward justice rather than its contrary.
The article discusses five ways in which the law can model virtue, the most significant of which is that of the Virtuous Person, the person who is “a purported ideal of immutable, full, and perfect virtue.” (P. 6.) The discussion touches upon the “pluralism objection,” that if “morality is fundamentally pluralistic, then ‘full and perfect virtue’ is impossible.” (P. 7.) This rejects the classical Aristotelian doctrine of the unity of virtue (P. 6), that in order to possess one of the virtues, it is necessary to possess all of them. (N.B. this doctrine relates only to the so-called cardinal virtues.) Both Aristotle and Plato—and later Aquinas—regard virtues as mutually reinforcing, unlike the merely pleasurable interests of the masses which vie with and undo one another. The underlying principle, that the truth harmonizes with all data, whereas falsehoods clash and contradict one another, is not there defended by Aristotle, although a defense is available.
There are five ways in which the law can “model” virtue, of which I shall mention here only two: first at the level of specific laws and policies (e.g. “open-mindedness” in allowing individuals freely to choose and pursue their own ends), and secondly at the level of the law’s foundational structures. (Pp. 10-11.) Here there are two problems, the “poisoning problem” and the “emulation problem.” The poisoning problem is that the coercive properties of the law appear to model non virtuous modes of behavior: “The law necessarily calls on its members, as officials and citizens, to do things such as threaten people, attack people, make laws that harm people, lie to people, detain people, isolate people, charge people with offences, make judgments on people’s guilt, sentence people to be punished, impose punishments on people, deprive people of their resources, and perhaps, in extreme cases, incarcerate and possibly kill people.” (P. 15.) I did not entirely follow the reasoning here. Of this list, some—such as the punishment and incarceration of criminals—are not contrary to virtue, and others (such as determining guilt) are virtues (here the virtue of prudence). But it would be useful to have examples of other members of this list, such as occasions when the law requires one to lie. This latter Aquinas would regard as an unjust law to which one is bound in conscience to disobey, as being contrary to virtue. (and duty!)
The emulation problem is that if one acts virtuously for the sake of the law, one is not acting virtuously for the right reasons (and thus technically not acting virtuously); but if one acts for the right reasons, the law is not serving as a model of virtue. (P. 15.) It is probably true to say that certain branches of law fall foul of this objection. Where it acts successfully as a deterrent, the criminal law does not instill virtue into would-be criminals, but the majority of people do not need the deterrent and are thus unaffected by the law as far as virtue is concerned. But there are other areas of law where the law does appear to be a guide to virtue: tort law is one such example, since an ordinary lay person may wish to do the right thing but without knowing what the right thing is.
There are two respects in which the article could have gone further. In the first place, it could have considered the Thomist doctrine that the law seeks to bring people to virtue, but not all at once, and that the function of law is not to require the practice of all the virtues. Consequently, there is an important difference between the good citizen and the good person. (A good citizen pays her taxes even if resentfully, whereas a good person does so willingly.) In the second place, the article could have given a longer and systematic discussion of the law’s two most important virtues: justice and prudence.
In a comment of this length it is impossible to recount and discuss many of the article’s arguments and analyses, and I would encourage anyone interested in jurisprudence to read the full article, and in doing so gain a sense of its many virtues.
A question seldom asked is what actual legal knowledge legal theorists require in order to theorize about law, or, indeed, what areas of law they should visit in order to confirm their theories. Without wishing to suggest there might be a mandatory list of legal subjects, or a set of legal treatises that amount to required reading, my present purpose is to draw attention to an area of law and its treatment in a recent book by M. Sornarajah that would not obviously fall within the purview of legal theorists but which offers them particularly stimulating material.
The area of law is international law on foreign investment, an area Sornarajah is well positioned to write about, being commonly regarded as one of the founding expositors of a specialist sub-discipline of international law, whose rapid development in recent decades is a significant manifestation of the fragmentation of international law. This area of law, whose development has centred on the place and role allowed to arbitration on international investment treaties, accordingly provides an extraordinarily accessible set of data regarding the creation, recognition, and development of law.
Sornarajah’s principal thesis in writing this book is itself a theoretical one. From a detailed examination of the developments of the law over a period of twenty-five years, he aims to provide an explanation of change that is applicable more widely to international law, and addresses the (undesirable) phenomenon of fragmentation. (P. 8.) His explanation involves the ideological capture of this area of law, amounting to the exclusive promotion of partisan interests, in turn followed by resistance to the unjust condition of the law, holding out the prospect of change towards a more just condition.
The ideology capturing the law was neoliberalism (Pp. 10-15, 43-45, 62-63), and the partisan interests it favoured belonged to multinational corporations at the expense of developing countries. (Pp. 21, 27, 330, 398, 407.) The legal tactics employed to this end are charted meticulously by Sornarajah. They are founded on an interpretive move which allowed investment treaties to be taken beyond the consent of the parties to be serving an overriding interest of investment protection (Pp. 136-43), reaching an “acme of aberrations” (Pp. 168-73) when financial instruments involving government junk bonds acquired in foreign secondary markets were regarded as protected investments under a treaty contemplating investment in the party country. Sornarajah points to the unfounded “extreme adventurism” of this interpretive move: “It is not possible to enter the state as an investor through obligations or economic rights such as securities sold on foreign stock markets.” (P. 171.) The tactics extend to innovative uses of devices to consolidate neoliberal gains in the face of emerging opposition, such as the fair and equitable standard (Ch. 5) and the proportionality principle. (Ch. 7.)
Resistance occurred not simply from the affected states (Pp. 5-6, 66-67, 300) but also by dissident arbitrators (Pp. 5, 66, 168, 186, 399) and some academic commentators (Pp. 29, 301) who were alarmed by the transformations the area of law had undergone. The process of change displayed in the more recent approach to “balanced treaties” (P. 5) is currently ongoing. It is a process that is fiercely resisted by the forces of neoliberalism (Pp. 67-68, 417-18), resulting in a “contest between norms” (Pp. 69, 399-404) and a clash between the forces championing them. (P. 7) However, the very existence of conflict and efforts at accommodation are regarded as a manifestation of change, change from the absolute priority accorded to foreign investment. (Pp. 68, 418.)
Ultimately, Sornarajah looks towards a realignment of the field with the general principles of international law. (P. 8.) To some extent this is sought to ensure that interests other than those of investment are not excluded from the picture. (Pp. 8, 29, 76, 303, 418.) There is also a suggestion that a function of international law in “securing [wider] interests of poverty reduction, environmental protection and the promotion of human rights” aligns it with “its moorings in notions of justice.” (P. 29.) The author certainly considers interests precluded from the protection of the law by hegemonic power as being supportable by claims of justice, and that the exclusive concentration on the interests of investment is insupportable as clearly unjust—without having to invoke and defend a particular conception or specific principles of justice. (Pp. 22, 71, 417.)
Indeed, there is much to suggest that Sornarajah does not consider his extensive case study to be a celebration of the triumph of justice. Despite proposing a general theory of change for international law based on his study (involving hegemonic power, resistance including an appeal to justice, and change through accommodation or replacement of norms) (P. 420), the driving force which promotes and limits the detailed changes that occur is more often identified as a struggle between competing interests. (Pp. 1, 5, 7-8, 392-93, 418.) And in that struggle, control of the law is paramount. (Pp. 20-21, 26-27, 68-69, 398-99.)
Sornarajah reserves his harshest criticism for the legal officials (arbitrators and lawyers), abetted by academics (Pp. 29, 58-59), who have worked to allow control to be taken by the wrong side. He denounces these arbitrators for “ignor[ing] the higher values of the profession such as neutrality and fidelity to the trust placed in them by the parties.” (P. 61.) As for the large law firms, their motivation was “enlarging the market for their services.” (P. 65.) Because of the economic gains of arbitrators and lawyers (P. 65), they remain “dominant forces that will resist change,” given the huge stakes “in terms of [personal] monetary loss” that change would bring about. (P. 399.) Significantly, he applauds the proposal to exclude or limit the involvement of large law firms. (P. 420.)
It would appear that the business of Judge & Co., excoriated by Bentham, can still be found flourishing. Of greater analytical interest is how the activities of these legal officials, portrayed in Sornarajah’s book, shed light on our understanding of the creation and recognition of law. It is difficult to find any evidence showing officials following a rule of recognition here. It is equally difficult to maintain that their internal attitude to the law is morally neutral or based upon a disinterested legal point of view. Rather it appears that an ideologically charged, or self-serving, attitude is essential. There is also clear evidence that in the period of greater conflict in this area of law, there was not a legal point of view to be found but whatever happened to be the point of view of the individual (or majority) arbitrator. (Pp. 62-63, 417.)
Another issue of wider theoretical appeal illuminated by the material in this book is that of the relationship between law and the interests of members of the community. The issue arises in a disagreement between Gerald Postema and Joseph Raz, which can be concisely represented as concerning whether social existence under law emerges as a harmonious order serving the common interests of members of society, or is founded on an imposed order irrespective of the dissonant interests of individual members of society. The material Sornarajah provides certainly speaks to imposition of law over dissonant interests, but it stimulates further theoretical reflection in two respects. First, on the nature of the capture of law by one side of the conflicting interests, and on the resistance by the other side that impacts upon the law, extending beyond a simple picture of the exclusionary authority of law. Secondly, regarding the possibility of law being in a state of conflict itself.
Sornarajah’s book is a masterful account of an extraordinary, relatively short, period of dynamic change in the international law on foreign investment. It should obviously excite the interest and commitment of those working in the field. Perhaps, less obviously, it should equally demand the attention of those with interests outside of that field, both practical and theoretical, within international law and law more generally.
Paul Gowder’s article Equal Law in an Unequal World is an exceptionally fine piece of scholarship, and a terrific addition to the growing philosophical and jurisprudential literature on the Rule of Law. It sets out to accomplish several tasks—and largely succeeds. The first and major goal of the piece is to introduce a novel conception of the Rule of Law that is grounded in the widely accepted norm that law must be general. This is a familiar understanding of the meaning of the “Rule of Law,” but Gowder gives it distinctively unfamiliar—but ultimately quite compelling—content. Any law, Gowder argues, drawing on an emergent moral-philosophical literature elucidating related concepts, to be “general” and therefore compatible with the Rule of Law, must be backed by public reasons that can be rationally understood by all citizens, but most important, by all citizens it directly targets. Those reasons, in turn, must be consistent with each such citizen’s basic equal worth and equality (among other requirements as well: the law must also be justified by reasons that are aimed at a sound public policy, and third, by reasons that reflect loosely the community’s self-conception and values). A law justified by reasons that can be understood by the law’s presumed targets only by first accepting the claim that they are inferior to others—such as a law requiring black citizens to sit in the rear of buses, or a vagrancy law forbidding both rich and poor from sleeping under bridges (etc.) in the face of widespread homelessness, or theft laws that forbid the theft of food, given the existence of severe poverty—therefore, violate the Rule of Law. These laws can only be understood by those whom they target as resting on or justified by reasons that in turn presuppose affective commitments of the lawgiver and of the community to the inferiority, or unacceptability, or indeed the contemptibility of black people, or the homeless, or the poor. Particularly for those who have no choice but to commit the prohibited act—such as homeless people who must after all sleep somewhere, or poor people who are hungry and must eat to survive—the laws prohibiting these acts cannot be understood in any way other than as resting on a claim that their very existence is offensive, or at best that their status is lower. This claim is in turn inconsistent with the generality required by the Rule of Law, when that generality is properly understood as requiring not any formal or linguistic property, but rather, a commitment to the general equal worth of all citizens. Therefore, Jim Crow laws, and literacy requirements for voting, but also quite ordinary laws prohibiting theft or vagrancy, are violations of the Rule of Law because in each case, they are premised on reasons that in turn rest on affective attitudes that presuppose the inferiority of the groups they target—and, thus, their lack of “generality.”
This is, Gowder shows, a far more ambitious and robust understanding of the “generality” required by the Rule of Law than the “formal” interpretation one more commonly finds at the heart of dominant interpretations of the Rule of Law and the Equal Protection Clause both—interpretations that typically require (at least in the legal literature) only that “likes be treated alike,” with no substantive reference to either substantive equality, or the equality of citizens. An interpretation of the Rule of Law that requires the latter, Gowder argues, rather than the former, is both more consistent with the history of the ideal itself (drawn from English legal history) and more consistent with the politically and morally ambitious goal of a substantively equal and fair society—a goal that is least arguably at the heart of this country’s reconstruction amendments, as well as our history of progressive politics.
The article’s second major goal is to put to rest progressive worries about the Rule of Law, and its purportedly inexorable connection to the protection of property and property rights, and, therefore, its antipathy for progressive causes, particularly the amelioration of wealth disparities. That worry, which has been a staple of left wing academic political and legal writing since Marx, but most recently voiced by Morty Horwitz, Gowder contends, is misplaced: the Rule of Law is a vehicle, not an obstacle, for progressive politics. Progressives, he argues, should “learn to love the Rule of Law.” The Rule of Law, he shows, understood as requiring generality in the sense he describes, is basically incompatible with a legal system that criminalizes, through laws against theft or vagrancy, poverty that renders compliance with these laws prohibitive or impossible. Therefore, a legal system that confers property rights—as legal systems typically do and should do—must ensure that all citizens have sufficient resources to comply with the laws of theft that give those property rights heft. The Rule of law then requires not just sufficient economic welfare rights so as to provide basic biological needs, but rather, sufficient welfare so as to ensure the capacity of all citizens to comply with (and to understand) fundamental laws—including whatever material resources are required to facilitate that compliance.
Third, Gowder wants to show that these minimal welfare rights are required by virtue of the Rule of Law—by legalism, in effect—rather than, or in addition to, whatever may be required of a decent society by distributive justice, or utilitarianism, or any particular constitutional scheme, or liberalism, or Rawls’ principles of justice, or Kantian morality (etc.). Although he doesn’t dwell on it as much as perhaps he should, this is an important contribution and ambition of the piece. It is the idea of law itself, Gowder contends, and not the idea of justice, or utility, or Kantian morality (etc.) that requires the provision of economic resources in any legal system that also confers property rights. Therefore, anyone (whether they be constitution drafters, or critics, or legislators, or academics) committed to the ideals embedded in the Rule of Law, whether or not they are committed to social justice, or Rawlsian liberalism, or Marxist egalitarianism, must be likewise committed to the eradication of poverty—at least to the degree required so as to render its property regime, and the laws that sustain it, compatible with Rule of Law principles. This is a very strong claim, not only for the strategic reason that it puts the burden on the shoulders of those committed to the Rule of Law to worry more about poverty than perhaps they have done to date. It also provides a much-needed first step toward the end of explicating the moral value of law itself, in a healthy and admirable direction. If Gowder is correct, then law is not only premised upon, for example, the moral value to all of physical security, as Hobbes posited. It is also premised upon the moral value of the equality of persons, including to some degree the amelioration of those material conditions that render some lives so radically unequal, or lesser. That connection—between core legalistic values and substantive equality—is both not at all obvious and, if sustainable, hugely important; it would impact, for example, not only how we theorize, but also how we teach, study, and practice law quite generally.
Finally, Gowder’s most ambitious goal in the piece, I think, although he doesn’t say it this way, is to reconfigure the moral grounds of property rights in liberal legal regimes. A property regime that is imposed by law, as opposed to one imposed in some other way, (by force or conquest) must itself meet moral conditions—and must do so regardless of its political commitment to constitutionalism, or to any other justificatory principles. A property regime imposed by law—through property rights protected by legal rule—to be general, and hence to be consistent with the Rule of Law, must ensure that all citizens have recourse to the material resources—the property—necessary to comply with all legal rules that protect property itself. Thus, laws against theft—which are essential to property regimes—violate the Rule of Law if they coexist with extreme poverty, no less than do segregation rules or literacy requirements for voting in the face of white supremacy: like the latter, the former can only be understood as resting on reasons that presuppose the inferiority or inconsequentiality of the group they target. This too is a vital finding. If protection of property is at the heart of liberal legal social orders, and if that protection is inconsistent with legalism itself without some provision for welfare rights, then the property regime, if structured by law, is not only not a threat to those rights but virtually requires them. This is an original and significant understanding, then, not only of the relation of the Rule of Law and welfare rights, but also of property itself, and its connection to the eradication of poverty.
Those I take it are the major objectives of Gowder’s piece. I think he is remarkably successful in making the case for each. I suspect this article, along with Gowder’s earlier and related work on the Rule of Law, will have a considerable impact, not only on Rule of Law Scholarship, but more broadly on jurisprudence and constitutional law scholarship as well. The thesis is novel and deep: the Rule of Law scholarship, with only a few exceptions, has dwelt on the purported procedural virtues of law, (Fullerian understandings of the requirements of generality, prospectivity and the like) on the requirements of formal equality (the like treatments of likes), the requirements of notice, and the idea that law bind the lawmaker as well as its subjects. Both Rule of Law devotees and Rule of Law critics have for the most part accepted these definitional limitations. Gowder has a genuinely novel argument and interpretation of the Rule of Law that opens up a very new area of inquiry: perhaps the Rule of Law, properly understood, requires much more. If so, then we need to re-think not only our commitment to, or criticisms of, the ideal itself, but also how we think about and how we teach law.
I have three reservations about the overall argument. First, I’m not convinced that Gowder has fully responded to the Marxist/Horwitzean complaint regarding the Rule of Law, for a number of reasons. First, to fully respond to this complaint I think requires an engagement with the intellectual history of the idea, and not just a possible theoretical reconstruction. It may well be possible to reconstruct the Rule of Law so as to require, rather than preclude, economic justice sort of rights, but that doesn’t respond to the complaint that the Rule of Law has historically been associated with property rights, and interpreted in ways hostile to social justice. Second, though, I’m not sure Gowder sees the strength of the Marxist/Horwitzean complaint that the Rule of Law is theoretically (and not simply historically) at odds with social justice sorts of concerns. Gowder’s response turns heavily on the insight that property law (and the theft prohibition at its core) requires the impossible of the very poor: just as vagrancy laws forbid the poor as well as the rich from sleeping under bridges, so anti-theft laws prohibit the hungry as well as the well fed from stealing food. They are then not “general” because they cannot be interpreted in a way that doesn’t presuppose the inferiority of the poor, the hungry, or the vagrant: they say to those targeted, “you can’t comply with these laws (because of your hunger/homelessness), but these laws are good laws required to maintain both property and public order, so you are just no good—we’d all be better off if you didn’t exist.” So, because they are not general in their impact, they violate the Rule of Law. Therefore, Gowder concludes, basically, the Rule of Law requires either that legal systems get rid of property rights—not a good idea—or that they get rid of the extreme poverty that leads to these dignity-denying interpretations.
Even if this is convincing, however, it doesn’t counter the Horwitzean claim that by virtue of the generality at its core, Rule of Law ideology (and Rule of Law adherents) are blind to the very real and the very particular misery in the midst of the sometimes wealthy and lawful societies in which the Rule of Law is regarded as key. One way to see this is by looking at Gowder’s interpretation of Anatole French’s complaint that “the law in its majesty forbids the rich as well as the poor from sleeping under bridges.” Gowder understands French as objecting to the law’s lack of generality (because the law as applied will prove fatal to the poor in ways he explicates). But one can as easily understand French as complaining in Horwitzean fashion about the law’s blindness to poverty, precisely because of its obsession with generality. “The law is so obsessed with generality, it doesn’t notice that some are differentially suffering.” If the latter is what the comment is expressing, then it isn’t cured by providing only the minimum legal entitlements that would render the poor able to sleep under bridges without violating the law—nor, though, would it be cured by providing the poor enough shelter that they wouldn’t have to resort to bridge-sleeping. The law might make such provisions—it might make sleeping under bridges legal, or provide shelters for homeless people—but still be overly obsessed with generality, and at the cost of attending to misery. This I take it is what Horwitz means when he complains that the Rule of Law seemingly forbids “benign” uses of power to eradicate poverty or subordination. Another way to see the problem is through a counterfactual: Assume that the legal system responds to Gowder’s argument, and changes the facts on the ground so that the poor are not forced to break the law when they sleep under bridges or steal bread (thus breaking theft laws). That still leaves quite a bit of poverty, or more simply a lot of misery. Can the law address that poverty, or misery, directly, by, for example, redistributing income from the rich toward the poor? Horwitz’s worry is that Rule of Law thinking and Rule of Law ideology has driven too many to the conclusion that it cannot: that the very idea of “law” puts burdens on progressive, redistributive understandings, of say, tort law, or contract law, or for that matter tax law, because “generality” forbids this kind of eyes-open, wide-awake differential treatment of rich and poor. Even if Gowder is right that the Rule of Law, best understood, stands as a challenge to the forms of extreme poverty that drives the hungry to steal or the poor to violate vagrancy laws, Horwitz may still be right that the same Rule of Law—the same over-idealization of the idea of generality—would stand as an obstacle rather than a facilitator of redistributive efforts, through the mechanisms of law, above this minimum.
My second objection is that I’m not sure why Gowder wants to insist that the heart of the Rule of Law, under his interpretation, is generality, in any form. This seems just odd. The sorts of values that he’s underscoring, and that he believes to be central to the Rule of Law, are equality, dignity, and equal worth. Laws that are justified by reasons that run afoul of those central values, he argues, are not general, and therefore they violate the Rule of Law. I don’t know that it makes sense, though, to ascribe these values to generality. Why not leave generality out of it? The Rule of Law, we might think, these days, requires that laws rest on reasons that in turn respect the equality, dignity, and equal worth of all citizens. I’m not sure that much is gained by claiming that there is some strong and almost logical connection between the idea of generality that has historically been at the heart of Rule of Law thinking, and these values. Maybe better to suggest that we need to turn a corner in Rule of Law jurisprudence, and move past the idea that it’s all (or only) about generality.
And third, and finally, I’m not sure who the audience for Gowder’s piece might be, and although sometimes there’s no need to specify, here there might be. Is it Rule of Law philosophers? Statesmen and legislators? Judges? Constitution drafters? Constitutional lawyers? He indicates throughout (but particularly and explicitly at the end of the piece) that he believes his argument should inform interpretation of the Equal Protection Clause of the Fourteenth Amendment. That suggests an audience: if Gowder is right, then his conception of the Rule of Law might in turn influence the path of constitutional law. Perhaps that connection should be made explicit, and the full legal argument for it provided. Otherwise, the piece still stands as an important contribution to an ongoing debate, and literature, among political philosophers and some legal theorists regarding the Rule of Law. But beyond the constitutional-interpretation payoff, it isn’t clear what of our current legal doctrine or doctrinal debates the argument should impact, and how. I can imagine all sorts of possibilities: it could affect, for example, international “Rule of Law” projects, or alternatively, it could affect, very generally but perhaps powerfully, how judges and legislators (and educators) think critically about ordinary domestic law—from tort to contract to property law. But it would be helpful if these implications could be drawn out. Perhaps that’s a larger and contemplated project.
This is very exciting work! Gowder has taken not just one—but several—stalled debates and given them new life: he’s given a fresh interpretation not only to the Rule of Law, but also of our stalemated debates over the role of welfare rights, positive rights, and economic and social justice, in liberal-legal and constitutional orders. His writing is stylistically almost flawless and he brings to the project a wide base of learning—sophistication both in the legal and philosophical materials. It is an excellent example of interdisciplinary work in law and philosophy that nicely illustrates the value of the genre. This is a worthy contribution to several related bodies of work as well, in constitutional law, public law theory, international human rights law, and jurisprudence. The implications of his argument, in other words, are broad as well as deep.
- Dan Priel, Holmes's 'Path of the Law' as Non-Analytic Jurisprudence, 35 Univ. Queensland L.J. 57 (2016), available at SSRN.
- Markus D. Dubber, New Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Critical Analysis of Law 1 (2015), available at SSRN.
Of late there has been a notable burst of attention to the interaction between history and legal theory generally, and historical jurisprudence specifically. This includes a symposium in the Virginia Law Review last year on Jurisprudence and (Its) History, and a forthcoming book, Law in Theory and Jurisprudence, both with contributions from prominent scholars. What makes this noteworthy is that decades ago historical jurisprudence itself was consigned to the dustbins of history. As Brian Bix declares in his leading Jurisprudence text, “historical jurisprudence has largely disappeared.”
Historical jurisprudence emerged in the nineteenth century in the influential writings of Friedrich von Savigny and Henry Maine. It revolved around the insight that law evolves over time in connection with surrounding social, cultural, economic, political, and technological influences. Law at any moment in any place is the cumulative product of the history of its society (including interaction with external influences). At the turn of the twentieth century, historical jurisprudence and legal positivism were the two main rival branches of jurisprudence, with natural law theory a distant third. Writing in 1906, prominent American jurist Melville Bigelow observed, “Two distinct schools have in succession held the field, more or less, of legal education in English and American law, the analytical of Bentham and Austin and the historical school.” Soon after Bigelow uttered these words, however, historical jurisprudence seemingly expired, not to be heard from again—until now. Dan Priel’s Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence and Markus Dubber’s New Historical Jurisprudence: Legal History as Critical Analysis of Law explicitly advocate a revival of historical jurisprudence.
Preil and Dubber’s respective visions of historical jurisprudence and their reasons for promoting it differ. Priel offers historical jurisprudence as a curative for the wrong turn taken by contemporary analytical jurisprudence. He writes, “The barrenness of conceptual jurisprudence has many sources, but one of them is its unselfconscious, untroubled pre-Darwinism, its continued search for explaining human practices in terms of unchanging, timeless essences.” (Priel, P. 18.) Framing Holmes’s essay as argument in historical jurisprudence, Priel presents an illuminating re-reading of Path of the Law. The three parts of essay, he suggests, can be understood in terms of Holmes’s three ages of law: beginning in primitive times as intuitive reflections of natural human responses to rights and wrongs, then becoming a technical system of artificial reason grounded in tradition, and finally in the modern age becoming a scientific mode of social engineering. When viewed within this historical framework, Priel shows that common debates over Holmes’s discussion of the “bad man,” though informative, largely miss the point. This demonstration supports his broader message that historical jurisprudence makes available insights about law that analytical jurisprudence overlooks or suppresses.
Dubber presents historical jurisprudence as a powerful (albeit neglected) critical method: “Historical analysis of law, in this light, appears as one mode of critical analysis among others, including, notably, comparative analysis of law, along with economic analysis of law, or philosophical or sociological or ethical analysis of law.” (Dubber, P. 2.) Historical jurisprudence adds a critical perspective in two ways lacking in other approaches, he explains. (Dubber, P. 14.) First, a genealogical inquiry exposes pivotal moments in the development of legal institutions and legal doctrines, shedding light on their origins and how they took their current shape. Second, historicizing legal institutions and doctrines—viewing them within their specific social historical context—exposes ideological and material influences on law and the interests it served. Both aspects of historical analysis reveal influences behind contemporary legal arrangements and shows that they are contingent. This in turn open a critical distance, facilitating the functional evaluation of law—does it work in ways that achieves our collective goals and serves our interests?—and normative evaluation of law—is it good and just?
Despite having these very different orientations, both articles pointedly identify with early figures in historical jurisprudence: Priel with Oliver Wendell Holmes and Dubber with Savigny. Neither Priel nor Dubber endorses the particular theories of these pioneers—rather what they emphasize is the theoretical perspective Holmes and Savigny brought to bear on law as an evolving social institution, and the potential of this perspective to enhance our understanding and normative evaluation of law. Another trait in common is Priel and Dubber link their respective analyses to the current revival, after its own lengthy dormancy, of history on a grand scale, both citing among other works David Armitage and Jo Guldi’s The Return of the Longue Duree.
It is too soon to tell whether the recent spate of work on historical jurisprudence is a temporary blip or the beginnings of a genuine revival. The odds are not in its favor. Though we do not know what led to the original demise of historical jurisprudence, the fact that it fell away is a warning. One factor that likely contributed is the sheer difficulty of combining rich historical knowledge with sophisticated theory. The rare self-identified historical jurisprudents in modern times—notably Harold Berman and Peter Stein—are scholars with immense historical learning, as were Savigny and Maine. Mere mortals like the rest of us are unlikely to match their standards. A better way forward, I suggest, is to aim lower than grand narratives. The core insight of historical jurisprudence is law evolves in connection with surrounding social forces. This can be explored in innumerable contexts at scales small and large. One might even say that a lot of work along these lines is already being done, though it is not recognized as historical jurisprudence because everyone thinks, as is often repeated, this theoretical perspective on law died a century ago. Priel and Dubber make strong cases in their essays that there is much to gain by a return to historical jurisprudence. We may be witnessing its resurrection.
Dan Priel, Holmes's 'Path of the Law' as Non-Analytic Jurisprudence, 35 Univ. Queensland L.J. 57 (2016); Markus D. Dubber, New Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Critical Analysis of Law 1 (2015).
- Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015), available at SSRN.
- Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013), available at SSRN.
- John Gardner, The Evil of Privatization, Univ. of Oxford (2014), available at SSRN.
Privatization is a phenomenon that legal theorists and legal philosophers have begun to notice and to stake out positions on, for and against. Privatization is defined with reference to the (too?) familiar distinction between public and private actors. Privatization happens when a good, service, or a function that is typically supplied by state government, through the efforts of its officials and personnel, comes to be provided by private actors, perhaps still at state expense. In a pair of recent articles, Avihay Dorfman and Alon Harel have singled out private prisons and mercenary armies as paradigm examples of privatized public goods. Dorfman and Harel lament the fact that both advocates and opponents of privatization conceive the normative issue in purely “instrumentalist” terms. Which type of actor, public or private, can provide a given good or service more efficiently? Discussions therefore deal in contingencies, and at retail level. Dorfman and Harel argue in their 2013 article that this sort of approach fails to engage the intuitive sense that there is something intrinsically worrisome about privatization that pervades it wholesale. It isn’t centrally a question whether private prisons, say, are more or less likely to do the job efficiently (without compromising prisoner rights). It is rather a conceptual question whether there is a category of goods—“intrinsically public goods”—that can only be provided by the state, directly, by its officials; and, for instance, whether criminal punishment is among them. The answer to conceptual question, and the answer’s retail application might allow the possibility of privatization: in which case, but only then, they say, it is proper to go on to the contingent question about the relative efficiency of public and of private delivery.
John Gardner warns of the futility of erecting a “conceptual stop,” and distills from Dorfman and Harel a more promising proposal, in these terms:
when certain actions are performed by non-state operatives, such as the employees of private contractors, they are incapable of realizing some important value that they are capable of realizing when they are performed by state officials, and that the important value in question is not captured by those who merely compare “the quality of the execution of the enterprise” as between the two classes of potential executors. (P. 3.)
But for Gardner it is still unhelpful to frame the issue this way, for it is
too narrow. Why should one restrict oneself to comparing a public functionary with a private functionary, having already identified some function that each is expected to perform? Surely an instrumentalist is entitled to say that although a private company is better at detaining or deporting or delivering mail or babies than a public body, nevertheless there are other bad consequences of moving over to a system in which detaining and deporting and delivering are handed over to the private sector which are not reflected in the quality of the detaining or deporting or delivering itself? (P. 4.)
What Gardner is awake to is the threat of creeping . . . —what I would call creeping de-socialism.
For privatization is not only the transformation of detention centres, trains, tax inquiry offices, forestry operations, and so on – considered one service at a time. It is also the creeping transformation of our political system and public culture from one of democratic oversight to one of plutocratic oversight. (P. 4.)
By way of clarifying why privatization is equally a move away from public governance (of any kind) and toward governance by corporate behemoths, Gardner points out the
complementary and in some ways continuous … transfer of power away from relatively independent professionals such as teachers, lawyers, architects, and doctors, and into the hands of large corporations, with their elaborate schemes of patronage and discipline and bureaucratic repression, replacing professionalism with “customer service” and “performance management”…. The contemporary zeal for privatization is not a zeal for independent-minded people who are only erratically susceptible to official or corporate patronage…. The zeal of our age is a zeal for the ever-increasing transfer of power, including political power, to the money industry. (P. 15.)
The wholesale problem is therefore not a conceptual one, but a matter implicating both political philosophy and a normative theory of political institutions (what Jeremy Waldron calls “political political theory”). Framing the issue as narrowly as Dorfman and Harel do has consequences.
Indeed aren’t we already giving the plutocrats the edge even by assuming that a system of government should be judged as a provider of various severable services, or clusters of services, to those we are now supposed to describe as its “customers”? If so, then [Dorfman and Harel are] surreptitiously stacking the instrumentalist deck in favour of privatization … landing instrumentalists with a narrow service-provider picture of government which allows the private sector to compete on quality of service provision, when the real question is: Can they compete on quality of government itself? For government itself is what the private sector is gradually morphing into. (P. 5.)
Gardner’s remarks were made in Harel’s presence, at a workshop on his book, Why Law Matters? of which his and Dorfman’s analysis made up a chapter. The two respond accommodatingly in their 2015 article. (Oral argument can make a difference.) But Gardner’s closing remarks are, to me, a disappointment.
In politics and policy, by and large, what we should currently do depends on what we have most cause to fear, and how we can best undermine it in advance of its arrival. The problems of social organization are themselves contingent and contingency is therefore an unthreatening feature of the solutions. The question, then, is not that of how we should eternally be organized, of which public sector pursuits are “essentially” public and which are not, but, as Bentham saw most clearly, of how to protect ourselves most effectively against the most egregious forms of misrule. (Pp. 16-17.)
Not fifty years ago, John Rawls offered a detailed answer to the question, how we should be eternally organized, “we” meaning, we citizens of modern constitutional democracies. “Eternally” meaning, as a scheme of cooperation for mutual benefit, intended to stably reproduce itself from generation to generation. It has become fashionable to dismiss this as mere “ideal theory,” as Gardner seems to do while hurriedly invoking both Benthamite utilitarianism and Judith Shklar’s liberalism of fear. A careful (re-)reading of Rawls, particularly his Justice as Fairness: a Restatement (2001), offers a more coherent and practical way of thinking how to respond to “the coming plutocracy” (P. 9) that, in Rawls’s view, had long ago arrived and rested its boots on the common table. At least by 2001, Rawls was explicit that achieving justice as fairness requires democratic socialism or something very like it. It isn’t clear who Gardner has in mind, in admonishing “progressives who are bewitched by memories of a class war fought in a different era” (P. 16); but, which era is this? The war sounds awfully familiar.
Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015); Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013); John Gardner, The Evil of Privatization, Univ. of Oxford (2014).
What was Ronald Dworkin’s relationship to constitutional originalism? One might think that Dworkin rejected originalism. After all, he famously advocated a normative approach to constitutional interpretation—indeed, a “moral reading” of the Constitution—an approach seemingly at odds with the historical approach favored by originalists. Moreover, he was explicitly critical of appeals to the intentions of the framers; in particular, he was critical of appeals to the framers’ expected applications of constitutional provisions. The latter criticism figured centrally in his commentary on Justice Antonin Scalia’s Tanner Lectures, A Matter of Interpretation. But in Originalism and Constructive Interpretation, David Brink offers a novel interpretation of Dworkin, arguing that, in fact, Dworkin subscribed to a version of originalism. This originalism differs markedly, however, from Scalia’s form of originalism, as well as from other contemporary versions of originalism. For what Dworkin advocated was an originalism of principle.
Brink’s defense of his interpretation of Dworkin proceeds in roughly three stages. The first stage defends a view of the semantics of legal norms, claiming that Dworkin (who defended the determinacy of law) would need something like this view in order to respond successfully to H.L.A. Hart’s argument for legal indeterminacy in hard cases. Hart argued that legal rules are formulated in general terms, that general terms are “open textured” (with a core determinate meaning, and an indeterminate periphery), and that for this reason, hard cases are legally indeterminate: they must be decided by an exercise of judicial discretion. As Brink depicts Hart’s semantic assumptions, Hart assumes that the meaning of language in a legal norm is determinate as long as the meaning and extension of its terms is uncontroversial. Where there is disagreement about criteria for the application of a term or about its extension, the term’s meaning is indeterminate.
But this assumption, Brink argues, is problematic. “Disagreement does not imply indeterminacy. There can be a fact of the matter about the extension of a term even if there is disagreement about its criteria of application or its extension.” (P. 277.) As Brink explains, the fact that people may disagree about the criteria for toxicity or the extension of the word ‘toxin’ doesn’t show that there isn’t a fact of the matter about which substances are toxic. Similarly, the fact that libertarians and egalitarians disagree about the nature of justice doesn’t show that the criteria of application or extension of ‘justice’ is indeterminate. In fact, Brink argues, Hart’s semantic assumptions would have the result that when people apparently disagree in their criteria for application of a term, they actually mean different things, in which case they aren’t really disagreeing after all. “Disagreement is typically disagreement in belief about the extension of terms, which presupposes invariant meaning and extension.” (P. 178.) In contrast to Hart’s “descriptional” conception of meaning, Dworkin must, he thinks, be committed to a “referential” conception of meaning, according to which the meaning and extension of terms depends on substantive facts about the nature of the objects to which those terms refer. In the case of general terms that occur in legal norms, their extension is determined by “substantive facts about the nature of the institutions, processes, properties, and relations that these norms concern.” (P. 279.) Brink suggests that the contrast between views might also be expressed in terms of the contrast between concepts and properties, or in terms of the contrast between nominal (or dictionary type) definitions and “real definitions,” which attempt to characterize the essence of a kind or property.
Though not explicitly defended by Dworkin himself, this semantic view fits, Brink contends, with Dworkin’s claims about constitutional interpretation in Taking Rights Seriously, as well as with his critique of conventionalism in Law’s Empire. It aligns with Dworkin’s distinction between concepts and conceptions. People might share a concept, such as the concept justice, while holding different conceptions of justice. They might share, in the case of distributive justice, the concept of an “appropriate distribution of the benefits and burdens of social interaction and cooperation” and might agree on paradigmatic instances of justice and injustice, while holding competing conceptions of the extension of the concept (for example, libertarian and egalitarian). (P. 280.)
The second stage of Brink’s interpretation of Dworkin discusses his critique of originalist appeals to framers’ intentions. Such appeals have well known difficulties; Paul Brest discussed them extensively in “The Misguided Quest for the Original Understanding.” Dworkin stressed some of these difficulties as well, and this might lead one to conclude that he rejected originalism altogether. But Brink argues that “there is a form of originalism about constitutional interpretation with which Dworkin has reason to be sympathetic.” (P. 283.) To explain this form of originalism, Brink turns to Dworkin’s distinction between abstract and concrete (or specific) intent. Consider the interpretative constraint of fidelity to the framers’ intentions. What this constraint entails is uncertain until we know which of the framers’ intentions interpreters must be faithful to—their abstract or specific intent. Fidelity to specific intent would require legal interpreters to engage in historical-psychological investigation of the sort commonly associated with originalism. In contrast, fidelity is to abstract intent would require legal interpreters to engage in moral inquiry into “the nature and extension of the values and principles that the framers introduced.” (P. 283.)
Which controls, abstract or specific intent? Dworkin offered a counterfactual test that asks us to consider “what a framer would have supported if he thought he had to choose between his abstract and specific intent.” (P. 283.) Brink offers the following example. (Pp. 283-84.) Suppose that I intend to strictly regulate the manufacture and disposal of toxins. As it happens, I believe that only x is toxic, and so I aim only to strictly regulate x. But now suppose that I came to believe that y is also toxic. Would I give up my intent to regulate toxins or my intent to regulate x? Although Dworkin, Brink reports, seems to have thought that application of this counterfactual test may often yield indeterminate results, Brink himself thinks that it usually has a determinate answer, and one that treats abstract intent as controlling. He remarks, (Pp. 284-85)
one would have expected Dworkin to combine his critique of specific intent with a defense of abstract intent. For an originalism of abstract intent is very similar to Dworkin’s own claim that constitutional adjudication should be faithful to the normative concepts of the framers, rather than reproducing their normative conceptions. For the abstract intent of the framers is just the kind of normative constraint they sought to introduce, specified at the level of abstract concept, principle, or value, and their specific intentions are just their beliefs about the extension of that concept, which reflects a conception, whether explicit or implicit, about the nature and demands of that concept. But then Dworkin’s own conception of constitutional adjudication can be formulated as a form of originalism that insists on fidelity to abstract intent, rather than specific intent. This would be an originalism of principle.
Brink goes on to argue that an originalism based on fidelity to abstract intentions overcomes the problems Brest and Dworkin himself raised for appeal to framers’ intent.
The third stage of Brink’s defense of his interpretation of Dworkin discusses how Dworkin defends an originalism of principle in his comments on Scalia’s defense of textualism in A Matter of Interpretation. In the course of spelling out what he takes to be Dworkin’s view, Brink offers a map of the forms originalism can take. Whereas Scalia defends a form of textualism that accepts a public meaning view of constitutional language, along with a descriptional view of meaning, Dworkin defends a form of textualism that accepts public meaning but with a referential theory of meaning, as described earlier. (Alternatively, Brink suggests, Dworkin’s position might be described as accepting framers’ intent (rather than textualism) where the relevant intent is abstract intent.)
Brink reflects on the relationship between this originalism of principle and Dworkin’s account of constructive interpretation in Law’s Empire. “Insofar as constructive interpretation and law as integrity incorporate Dworkin’s earlier idea that interpretation of a legal provision should aim to articulate and apply the best conception of the concepts underlying the legal provision, they can reasonably claim to embody an originalism of principle of the sort I have argued that he elsewhere embraces.” (P. 289.) Yet, Brink notes an important difference between an originalism of principle and constructive interpretation. Suppose that a judge must decide a case according to one of two principles, P1 or P2. And suppose that P1, while less attractive than P2, better fits with precedent than P2. Whereas an originalism of principle would have the judge follow P2, constructive interpretation might lead her to follow P1. Thus, whereas constructive interpretation would have interpreters take account of both fit and justification (or “acceptability”), seeking a balance between them, an originalism of principle favors attending to justification. (P. 292.) Although both constructive interpretation and an originalism of principle aim to resolve cases by identifying and applying the best conception of the concepts expressed in a legal provision, an originalism of principle takes this to exhaust legal interpretation, whereas constructive interpretation treats it as one factor that must be considered along with fit. (P. 294.)
Brink offers an illuminating and compelling interpretation of Dworkin that aims to make coherent sense of his disparate commitments and of the differing ways in which he formulated his views over the years—in terms of principles v. rules, concepts v. conceptions, and abstract v. specific intent. He offers a persuasive account of the differing semantic assumptions of Hart and Dworkin and persuasively shows how Dworkin’s semantic views help to buttress his case against legal indeterminacy. He also offers persuasive considerations in favor of the dominance of abstract intent in constitutional interpretation.
Brink’s interpretation of Dworkin is perhaps best understood as itself an exercise in constructive interpretation, which seeks to fit and make sense of Dworkin’s diverse claims, while showing his views in their best light. As such, it is bound to spark both interpretive and substantive disagreement. For example, there is some textual evidence that supports interpreting Dworkin as accepting a speaker’s meaning view rather than a public meaning view of the constitutional text. And some will be more worried than Brink about how to reconcile Dworkin’s constructive interpretation and the originalism of principle that Brink attributes to him. Some might question whether an originalism of principle is really a form of originalism at all, since it seems distant from the historical approach associated with originalism; whether it is depends, of course, on what makes a theory of interpretation originalist, which is a matter of some dispute.
In any case, the interest of Brink’s article goes well beyond whether it is ultimately convincing as an interpretation of Dworkin. His discussion reveals the key decision points in formulating an originalist theory and gives us some important considerations in favor of formulating originalism in some ways rather than others. Moreover, whether or not an originalism of principle was Dworkin’s own view, and whether or not it is plausibly a form of originalism, it is a view that merits serious attention. Of course, Brink does not, in Originalism and Constructive Interpretation, undertake to defend an originalism of principle as a stand-alone view; such an undertaking is more properly the project of positive theory construction rather than the project of an interpretive article. But he has succeeded in showing why we should be keenly interested in such a theory.
Cite as: Connie Rosati, Brink on Dworkin’s Originalism
(November 18, 2016) (reviewing David O. Brink, Originalism and Constructive Interpretation
(Univ. of San Diego
Legal Studies Research Paper No. 14-167, 2014)), https://juris.jotwell.com/brink-on-dworkins-originalism/