As a private law theorist, I have been captivated recently by the work of public lawyer Thomas Poole on the concept of prerogative. Poole developed his account most fully in his analytically brilliant and deeply learned book, Reason of State: Law, Prerogative and Empire (Cambridge 2015). Poole has continued to refine his thinking about the concept of prerogative in more recent work, including The Strange Death of Prerogative in England, in response to a spate of recent cases in England. What is so compelling and illuminating about Poole’s work on prerogative for a private law theorist? Private law theorists have long assumed that the most philosophically interesting questions in the field concern the structure of interpersonal rights and duties—what we owe each other. As a group, we have tended to stick to those areas of doctrine, like tort and contract, that repay close attention to such structural questions. Other areas of private law doctrine, especially property and equity, have not been not well-integrated into accounts of private law focused on interpersonal relations. That may be because they raise questions and invoke concepts outside the core of private law theory today. Equity, in particular, challenges the sufficiency of understanding private law as a framework of predictable, durable and standardized rights and duties. I may have a property right in law only to find that equity directs me to exercise it in ways the law does not require of me—or be held in contempt. I may have a contractual right to your performance of a contract but equity may prevent my enforcing it when I have led you to act to your detriment on the belief that you need not perform. Equity appears, then, to be a cluster of doctrines that lie on the outer edges of private law.
One way to chart the path forward to a more complete and unified understanding of private law –one that includes equity—is to look at how, in the context of public law, Thomas Poole has worked out the idea of the prerogative in institutional, conceptual and normative terms. The concept of prerogative, Poole argues, is best understood not as the bundle of prerogative powers that public lawyers of old enumerated nor the purely political conception of emergency powers outside the grip of law, but rather as a constitutional idea of prerogative: a distinct claim of imperative authority associated with guardianship of the State and that functions to stabilize and maintain the integrity of the legal order itself.
The ramparts of Poole’s concept of prerogative are the classic accounts of Dicey, Locke and Blackstone, which, properly fortified, are defenses against the doctrinarism, sentimentalism and political cynicism that have weakened understanding of its nature, core elements and proper locus in the constitutional order. Poole takes himself to be sifting through these classic accounts, taking apart and reassembling the pieces in a way that better reveals the idea of prerogative as a complex whole. What Poole delivers is an idealized explanation of prerogative as a special and distinctive claim of authority that finds doctrinal expression in a number of familiar prerogative powers, including the power of mercy, war, empire and trade. In all of these powers, the elements of prerogative are present. The features of prerogative power, Poole argues, are that (i) it is residual in nature, belonging to the executive in its capacity as guardian of the state; (ii) it is authority of an imperative or directive kind (not expressing itself then in the form of laws of general application); (iii) it is directed primarily at officials (not subjects); (iv) it has distinctive analytical properties, including, most mysteriously, its affective aspect (“As a residual symbol of majesty and lordship, prerogative taps into a sentiment now barely glimpsed and almost shameful to modern constitutional sensibilities” (p. 54)); (v) the concept is a unified whole, weakened where any of its elements are diminished; and (vi) it has a place within the constitutional framework even as it occupies an almost external space, law looking in on itself.
Poole’s own thinking about the prerogative in the public law context is rather deflationary. He believes that crucial elements of the concept—especially its affective dimension and the deference that once provoked from courts— either have already been or are on the way to being eliminated from British constitutional thinking today. In the British courts’ increasing refusal to defer to the executive in the exercise of core prerogative powers (as in the Brexit case), Poole sees signs of the death of the prerogative.
Here, then, is where private lawyers can both profit from Poole’s conceptual and normative analysis of the idea of the prerogative and perhaps turn around and export some insights from private law on the role that the prerogative might continue to play within the modern constitutional order, despite the transformation underway. The power to do equity was itself originally bundled together with other incidents of royal prerogative, the power to pardon, grant dispensations, charters, dignities, all powers in some sense to make exceptions. Even as equity has migrated from the executive to the judicial branch, even as much of its operations have been juridified over time, equity continues to occupy a similar legal terrain in relation to private law as the prerogative does in relation to law generally. The power to do equity is the power to preserve and safeguard the integrity of a system of rights. Courts, not the executive branch, are now the agents of equity and custodians of the private law order (not merely refusing to defer to officials within the executive branch but wholly taking over guardianship authority in their stead). But core elements of equity that are so like core elements of prerogative power —its affective dimension, found in its appeal to conscience and honor, its function to safeguard the framework of rights, its imperative nature, directing those with discretion and power within the system of rights to exercise it in ways that conduce to the stability of that system—all remain. Courts in doing equity thus claim a kind of authority that we can and should distinguish from the core judicial authority courts wield when they are simply enforcing private rights. Even as equity has undergone profound institutional change, equity as a concept remains, a standpoint on the private law order required to ensure its integrity. This points, perhaps, to a future for the development of prerogative in public law, whatever branch of government is the repository of that authority.
The subject of legal reasoning has stimulated an enormously wide variety of books and essays, articles and comments, offering the reader systematic exposition, technical illumination, practical guidance and critical commentary. The reader is clearly unsatisfied. The production of material continues without any sense that the latest contribution is about to close the debate and complete our understanding. Maks Del Mar’s recent book is not likely to provide the last word on legal reasoning. It does provide a novel perspective on where the elusiveness of legal reasoning might lie. It seems that we cannot capture the subject because however learned we might become in the techniques of reasoning with the law that we have, there is always the problem that imaginary laws might be invoked to disturb the precedents and doctrines, the templates and patterns, into which we fit existing legal materials.
That is a gross oversimplification and mischaracterization of Del Mar’s book, in at least three respects. First, for Del Mar, an imaginary realm of law does not exist outside of existing legal materials but rather legal materials possess an imaginative capacity. Secondly, legal reasoning does not get subverted by stretches of the imagination; instead, the imagination is a core faculty employed in legal reasoning. And thirdly, despite the limitation suggested by its subtitle, this is not simply a book about imagination, nor simply a book about legal reasoning.
To take the last point first, we can glean from the Introduction alone that this is a book which offers articulated views on the nature of theorizing: regarding “key theoretical questions” as the product of the biography and attitude of the theorist (Pp. 2, 13, 20-21, 23-25); and elevating the contingency of models over the necessity of concepts (P. 23). On the nature of language: seeing language as providing neither an obstacle nor a guide, but “a communicative and cognitive resource.” (Pp. 5, 22-23.) On the nature of inquiry: seeking a richer notion beyond the dichotomy between discovery and justification. (Pp. 8-9.) These early signals are enough to reposition Del Mar’s book away from any escape into the imaginary, as a serious exploration of the realities of law’s social potential and of the practical and theoretical perspectives adopted towards that potential.
To return to the first two points, the book also does what it proclaims in its title. It offers a thorough investigation of the role of imagination in legal reasoning through the deployment of four “artefacts” that assist in the process of inquiry regarded as the heart of legal reasoning, or adjudication. The substantive investigation undertaken in the book is split into two parts. Part I provides theoretical treatments (“models”) of inquiry, artefact and imagination, and then relates these ideas together by elucidating the author’s idea of the dynamic and socially involved process of inquiry that informs legal reasoning. Part II illustrates this process with studies of four artefacts commonly found in legal reasoning: fictions, metaphors, figures (personifications), and scenarios (hypotheticals). A brief conclusion reflects on further directions the project might have taken but which are not followed in the book. The slightly apologetic tone of the conclusion seems out of place considering how much is packed into the book.
The book displays an extraordinary breadth of learning, fully living up to its interdisciplinary aspirations. But this is not just interdisciplinarity for its own sake. Del Mar works with an astoundingly rich array of intellectual resources to advance his own carefully thought-through positions. And he does work with them, not simply citing them as scholarly adornments. So, for example, he refers to Anthony Laden’s social aspect of reasoning but extends it beyond Laden’s own approach so as to press the “interactive level” of legal reasoning and provide a third way out of the deadlock between Stanley Fish and Ronald Dworkin. (Pp. 39-42.) At other times, he chooses a passage between opposing views in the literature so as to steer towards the destination he has in mind. So, moving closer to Peter Goodrich’s view of rhetoric, in opposition to Chaim Perelman’s, Del Mar reaches an understanding of rhetoric capable of inverting the traditional respect for Plato’s reason over the sophistry of Gorgias. (Pp. 85-88.)
When it comes to his pivotal chapter on Imagination, Del Mar masterfully draws the literature together in an apparently effortless but incisive way, stressing particular points and emphases (for example, justifying the inclusion of supposition, Pp. 154-57), so as to produce a resource that provoked by and responding to artefacts can “enable the activities of inquiry in adjudication.” (P. 196.) The process of inquiry fed by the imagination is regarded by Del Mar as operating on an individual or social level (P. 202), but, in either case, the inquiry may become defective: if it is not open to imaginatively taking into account the perspective of another, if it fails to exhibit responsiveness to others, if it does not stress the importance of community, and if it does not embrace all members of a community in the invitation to imagine. (Pp. 216, 222, 226, 231.)
This represents Del Mar’s vision. I shall say less here about the practice, as illustrated in the four case studies forming Part II. It should, however, be noted that each chapter devoted to fictions, metaphors, figures and scenarios provides a valuable study of its subject matter as well as a stimulating account of how that device is regarded by the author as enabling inquiry. It is the enablement of inquiry that is the unifying theme of this book. The theme holds together Del Mar’s advertised undertaking of an investigation of the role of imagination in legal reasoning, but it also supports his understated but equally significant development of an aspirational theory of law – which places legal reasoning, adjudication, and the character of law itself, at the service of a wholly inclusive human society.
It is evident that such a society has not been produced by law, and this leaves Del Mar’s project with something of a futuristic air to it. He repeatedly stresses the open-endedness of the exercise of imagination through the artefacts it employs, which in turn leaves inquiry (“never-ending and incomplete”, P. 76) open to continue to deal with those interests and vulnerabilities in society as yet unreached by the law. It is telling that he couches law’s normativity in terms of interests and vulnerabilities that need to be addressed in preference to rights that have been recognized. (Pp. 66-67, 72-73.) Does this, after all, mean that Del Mar’s project has been primarily concerned with imaginary laws?
The answer to that question depends on how one regards the present (or past) state of law and envisages its potential state. As for relying on imagination to ensure that law’s potential adequately addresses the interests and vulnerabilities of all its subjects, again, that is likely to depend upon the idealism or scepticism of the reader. Imagination is a faculty capable of sympathetically including the concerns of others, or forcefully suppressing them. Del Mar’s book provokes us to reconsider how that faculty has been employed by the law. And how it might be.
Andrew Halpin, Imaginary Laws
, JOTWELL (May 14, 2020) (reviewing Maksymillian Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication
, (2020)), https://juris.jotwell.com/imaginary-laws/
Although we have made substantial progress since the late nineteenth century in supervising the process by which sausages are made, we have failed to make any significant progress in supervising the procedures used by legislatures. Stephen Gardbaum recommends that we remedy this situation. He argues that courts should use the Due Process Clause to review the procedures by which laws are enacted, as well as reviewing the substance of the enactments. His title indicates that he is building on the path-breaking article by Hans Linde, Due Process of Lawmaking, published more than forty years ago. Professor Gardbaum breathes new life into the idea and invites us to think about a promising and innovative means of improving our much-troubled system of government.
Procedural due process, Professor Gardbaum argues, demands that all branches of government–legislative, executive and judicial–follow constitutional decision-making procedures in addition to reaching constitutionally acceptable results. The applicability of this principle to executive and judicial decisions is unchallenged, but the prevailing view is that it does not apply to legislation. Perhaps this is because legislation is promulgated by popularly-elected officials and thus regarded, contrary to Burke, as an act of will rather than an act of reason. Professor Gardbaum doesn’t challenge this view; his point is that actions carrying out the will of the legislators can also suffer from procedural defects that demand attention and correction. He offers two examples: if legislators decide between alternative proposals by flipping a coin, and if they enact legislation in return for campaign contributions. These examples reflect two general categories of procedural defects: legislating without sufficient reasons and legislating for the wrong reasons. Professor Gardbaum refers to the first category at several points. It includes a failure to state the rationale for a statute, the failure to provide any empirical basis for it, or the failure to subject it to open consideration and debate. But the primary focus of his article is on the second category–legislating on the basis of the wrong reasons, and specifically ones that are wrong because they are corrupt.
Professor Gardbaum’s primary example is the Trump Administration’s tax reform act (Tax Cuts and Jobs Act 2017). Its obeisance to the demands of the Republican Party’s wealthy contributors, which is obvious on its face and confirmed by naively self-revealing statements by its sponsors, demonstrate its essentially corrupt character. The Hobbs Act declares that legislators who take action in return for money–a quid pro quo, according to the now-notorious terminology–are guilty of a criminal offense. It is also an offense, Professor Gardbaum argues, for a majority of legislators to enact a law that represents a similar pay off to wealthy contributors. He notes that the Supreme Court has largely eviscerated the application of the Hobbs Act to legislators, most notably McCormick v. United States , which precludes conviction unless the legislator’s action is based on an explicit promise, and United States v. Johnson , which precludes conviction on the basis of a legislator’s votes on proposed legislation. But the application of the Due Process Clause to legislative procedures does not depend on any demonstration of individual wrongdoing. Its focus, rather, is on the legislation itself. In this context, the corrupt behavior of individual legislators may provide evidence of the legislature’s general violation of due process, but it is not the essence of the violation.
In addition to reviving the general idea that the concept of due process should apply to lawmaking, Professor Gardbaum argues for a means of implementing the concept, which is through judicial review. Hans Linde shied away from this solution, and it has since been ignored or rejected by most legal scholars with the exception of several thoughtful articles by Itai Bar-Simon-Tov. Professor Gardbaum argues that an action declaring that legislation like the Trump tax reform is void under the Due Process Clause would be both less problematic and more effective than prosecutions under the Hobbs Act. It would be less problematic because no specific person would be punished, so that the concern for fairness to individuals that may have motivated the Supreme Court decisions in McCormick and Johnson does not apply. It would be more effective because the conviction of an offending legislator leaves the offending law in place. More generally, criminal prosecution is only viable for dealing with outliers from a general pattern of social or governmental behavior. Procedural due process review can correct a general pattern, as it has for many executive or judicial practices.
This admirably short article does not attempt to refute all the objections likely to spring to the mind of legally-trained readers. But Professor Gardbaum delineates both an empirical and a theoretical answer to some of the most obvious concerns. He points out that courts in several other democratic regimes, including Colombia, Israel and South Africa, have struck down legislation on procedural grounds, thus demonstrating that the idea is not presumptively impractical. With respect to theory, he argues that judicial review of legislative procedures does not violate the separation of powers doctrine. Given the countervailing, and arguably more important principle of checks and balances, separation of powers is best understood as preventing one branch from taking over the assigned responsibilities of another or disabling another from fulfilling those responsibilities. Judicial review of legislative procedures would not create this problem; far from legislating, the courts would only be doing what they do on the basis of many other doctrines, which is to strike down legislation that violates the doctrine’s underlying principles. Consistent with checks and balances, due process review of legislative procedures would provide much-needed supervision over truly offensive practices that, according to the classic Footnote Four argument, the subject institution is disabled from remedying on its own. Professor Gardbaum, again in the interest of brevity, does not delineate the contours of a due process doctrine to provide this supervision. Instead, he invites us to think about it, and alerts us to the all-too-apparent defects in our governmental system that should motivate us to do so.
Jeremy Waldron, Rule by Law: A Much Maligned Preposition
, available at SSRN.
As Jeremy Waldron well states in his article, Rule by Law: A Much Maligned Preposition, “there are lots of tough questions surrounding this one little phrase–‘the rule of law.’” (P. 2.) There is indeed a lot of controversy surrounding this political ideal, this little phrase. And this controversy gets a lot more complicated when we change a little preposition in this little phrase and start to distinguish between the rule of law and the rule by law: the first, taken as a synonym of legality; the latter, a caricature of it. Waldron seeks to discuss it all, and to show that maybe the rule by law is a lot more demanding than it seems to be.
First, though, some definitions. Although it is impossible to arrive at a canonical definition, it is also safe to assume, for analytical purposes, that the rule of law is—contested as it might be, and broadly understood—one of the many values in (liberal) political morality, according to which people shall be governed by clear, stable, general norms; “a situation in which the government is subject to legal limitation and constraint.” (P. 18.) Contrasted to that, some take the rule by law to be a degraded version of this ideal; as Waldron states: “the use of law as a tool or instrument to serve the ends of power in an authoritarian regime.” (P. 3.) But is that warranted?
While discussing many of the different approaches regarding the rule of law (and the rule by law), in all of its contrasts, complexities, and nuances, Waldron suggests that “if we take the syntax and vocabulary of the phrase ‘rule by law’ seriously, that seems to be what it requires: we are not to be ruled except by law.” (P. 18.) If Waldron is right—and I do believe he is—the contrast that is usually made between the two phrases, “rule of law” and “rule by law,” is a lot more subtle than it might seem to be at first glance. When we ask of a government that it should rule by law, this demand can be read as “a demand that it should use only legally defined powers”. And “[i]f this makes sense, then we have to concede that the little preposition ‘by’ in ‘rule by law’ is by no means expressive of pure submission to government authority.” (P. 21.)
All this is quite controversial. And it is controversial, I suppose, for conceptual reasons. What do we even take law to mean in the first place? Be it the rule of law or by law, well, what is… law?
I believe that Waldron himself provides us with a key to get out of this mess. In his 2008 article, The Concept and the Rule of Law, Waldron articulates an interesting claim: what if grammar here is misleading? Maybe the best reading of both the concept of law and ‘the rule of law’ arise when we take them to be two connected propositions. Law, after all, can be a much more demanding concept than a positivistic approach would put it. Just as we cannot be too casual about what it takes for a system of government to be considered a democracy, maybe we should be more discriminating when the issue is about a system being a legal system. “Not every system of command and control that calls itself a legal system is a legal system” (2008, Pp. 13-14); there are some requirements. Throughout his article, Waldron suggests that for a system of governance to qualify as law it must have (A) courts; (B) general public norms; (C), “positivity” (i.e., law as “something that people have made and people can control” (2008, P. 30)); (D) orientation to the public good; and (E) systematicity (for law is not merely a heap of independent norms, but a corpus juris). If many of these requirements are usually associated with the rule of law, none the worse for that. Taken together, law and the rule of law inform and protect each other from any impoverishment, conceptual or normative.
Waldron has made a brilliant, unique contribution for analytic jurisprudence when he elaborated on possible connections between the concept and the rule of law. I strongly believe he has a point; if I am—if he is—correct, the rule of law and the rule by law are not really that different. Let us argue about what law is (and should be), and we will not admit defeat and “abandon to the authoritarians” (P. 22) too easily the idea of the rule by law.
In this very interesting article, the authors apply some insights from the philosopher Michael Oakeshott to certain issues of constitutional law, with specific reference to Oakeshott’s version of conservatism. Specifically, Oakeshott believed that a conservative disposition is necessary in the face of two related problems: (1) the conservative wishes to protect not the past but the present, for present practices, with all their imperfections, contain important principles and achievements of justice which should not be lightly exchanged for future uncertainties; and (2) appetites for change can be dangerous, for the change that one intends to bring about is always less than the total change one ends up making—change is unpredictable and very often throws up new problems, or permutations of old ones. Conservatives are not resistant to all change, or even to change in principle, but they mistrust change and are cautious about tampering with existing practices. Defined this way, a conservative disposition is not to be identified (certainly not in an unqualified way) with either the outlook of the British Conservative Party, or various political parties or movements around the world that are described as ‘conservative’. Conservatism is not essentially right-wing, and shares few characteristics with so-called neo-con groups, and few political movements if any properly understand the conservative disposition and its underlying concerns.
The authors of the present article echo these points, which they develop within the specific context of UK Constitutional Law. “Conservatism—and especially a conservative disposition—is poorly understood within constitutional thought.” (P. 527.) The initial part of the article thus spells out the various characteristics of a conservative disposition, observing that it encompasses “ideas about human nature, society, politics, law and government.” (P. 530.) The starting point for conservatism’s protection of existing arrangements (including, centrally, political arrangements) is that our present practices, however accidentally they may have come about, are founded upon human reason; upon efforts that are essentially collaborative and thus promoting of at least a basic level of peace, and embody stability over time, considered as a human good in its own right. The authors identify three components of a conservative disposition: traditionalism (which corresponds roughly to one above); skepticism (which roughly corresponds to two); and a third component, ‘organicism’, the view that “society [is] an organic whole that develops within the context of inherited institutions.” (P. 532.) ‘Organicism’ can be described (though the authors do not formulate it in these terms) as a concern for the protection of civil society considered as an ongoing, culturally rich form of human ordering, to some extent autonomous with respect to changing governmental regimes, that is a vital source of human flourishing. If people did not spontaneously act (or forbear to act) out of civility, society would be an impoverished and dangerous place.
A significant part of the article is concerned with the issue of change. The authors rightly observe that “[a] conservative disposition is concerned with the problem of change.” (P. 534, my emphasis.) This statement is significant: for few people, and fewer political theorists, even view change as a ‘problem’ with which we ought to be concerned. The subject of ‘change’ is explored in relation to the three dimensions of conservatism mentioned above: traditionalism, skepticism and organicism. Traditionalism, first of all, is not necessarily hostile to change, but wishes for change to be continuous with the past rather than revolutionary. For example, an evolving language is preferable to a dead one, for it makes possible new forms of expression and artistic choices, as well as new scientific vocabulary appropriate to scientific discovery. But it is also important to hold onto the vocabulary, grammatical forms, dialects, and customary usages that make a language what it is. Scepticism, at the same time, is innately suspicious of the intellectual hubris of one mind seeking to change cultural/political forms that are the outcome of countless minds. (P. 537.) (This is rather reminiscent of the famous justification of common law as an “artificial perfection of reason.”) Again, such an attitude is not one of hostility to all change, but rather cautions against wholesale change, immoderate system-building, and ambitious revolutions, and argues that it is greatly easier to destroy than to rebuild. Organicism, finally, offers salient reminders that the purpose of politics and law is not to impose on society some final unified end to which people must contribute, but rather to allow all persons, to the extent reasonable and possible, to flourish in their own way according to ends that they devise for themselves. Such organic flourishing is the proper purpose of politics and law irrespective of the fact that laws need to be put in place in order to ensure that one person’s pursuit of their goals does not unreasonably impede another’s pursuit of theirs.
The middle section of the article considers three apparent problems with the conservative disposition. The first is that conservatives are more than usually content to uphold unjust, burdensome or structural inequalities, vested interests, and ignore the situation of the poor or those who in one way or another lose out under existing arrangements. But the authors point out that this is untrue: present arrangements are not upheld at any cost, and conservatives certainly do not cling to practices without critical scrutiny. (P. 540.) No institution is removed from the possibility of change. The second criticism examined is that conservatism fails to provide sufficient guidance for change, where change is acknowledged to be necessary. Here, the authors argue, “That it is difficult to craft an account of deliberate change is not to refute a conservative disposition, but to affirm its central arguments….The complexity of prevailing practices, along with the fact that the consequences of change cannot be confidently predicted, suggests that only limited guidance can ever be offered about when change is justified.” (P. 541.) This response is not terribly persuasive, and a better is available: that a conservative disposition is not the beginning and end of anyone’s practical deliberations; once the case for change has been established, one can employ the full range of capabilities of practical reason to work toward a solution. Conservatism does not exclude creativity; if it did so, conservatism would not be an attractive philosophy. A third criticism is that conservatism is incoherent because it tends to respond to change only in context and in the light of concerns then in play. It does not, for example, seek to apply sweeping and general principles across all areas of social life. To this criticism the authors respond with a version of the argument that was made in response to problem one: that a conservative’s response to a problem is not uncritical or random, and need not be entirely focused on only the matter presently in view. (P. 542.) Again, a better response is available in line with that to problem two: conservatism is not the same thing as political or moral relativism (e.g. relative to time, issue, or problem). It is perfectly possible for a conservative to adhere to a fully worked-out moral system, one which must be employed, just as conservatism itself is, in every context and in relation to every problem. Once again, a conservative disposition is not to be mistaken for an entire moral system nor for the totality of practical reason’s response to legal-political problems.
The second half of the article comprises two sections which apply conservative insights to matters of UK Constitutional Law. Since I am not a constitutional lawyer, I hope I will be forgiven for passing over these sections more briefly, although they contain a great deal of insight and analysis. The authors note that present constitutional law in the UK does not contain many traces of the conservative disposition, either in terms of the volume of reforms, or their substance and ambition. (P. 543.) In particular, the authors observe that “Overhauling [the Lord Chancellor’s] office and replacing the House of Lords with a Supreme Court were justified not on the basis that the then existing arrangements no longer worked, but by reference to generalisations on judicial independence and the separation of powers (contra scepticism). These reforms suggested a failure to grasp how the then prevailing arrangements reinforced shared understandings amongst constitutional actors about how the rule of law and judicial independence had been secured within the inherited institutional landscape (contra organicism). In all, there seems to prevail an attitude that conservatism in relation to the UK Constitution is synonymous with adherence to outmoded forms and imperfections. The authors wish to dispute this impression. They argue that ‘conservative arguments are especially relevant at a time of change and uncertainty, and hold for public lawyers with opposing assessments of our current constitutional condition.”. (P. 549.)
The conclusions of the article are complex, but perhaps the most important is this, which deserves to be quoted in full,
Conservative thought has tended to offer little guidance on when proactive change is required to ensure things essentially remain the same. Much conservative thought draws overly stark contrasts between a supposedly stable status quo and far-reaching change, where the former is maintained by resisting the latter. But sometimes the proactive pursuit of change is necessary to maintain the status quo. This is especially important where, for example, a changing external environment leads to the inadvertent transformation of prevailing institutions and practices. In such circumstances, ‘renovative’ change may be necessary: proactive change that is aimed at conserving current arrangements. (P. 551.)
I thoroughly recommend this article to any reader interested in the dynamics of change, reform, or practical reasoning as applied to law and politics. Its arguments and conclusions are relevant to much work in jurisprudence and not only to the article’s primary audience of constitutional lawyers, who will surely read it with great profit.
More than forty years after his first take on the value of the rule of law, Professor Joseph Raz, in The Law’s Own Virtue, has recently revised his original view and given us an insightful and very sophisticated account of this political virtue, developing a framework that connects his theory of law with his moral philosophy and his neoclassical account of intentional actions.
Previously, Raz held that the rule of law was a formal value which concerns the particular ways by which the law must guide the behavior of its subjects. The rule of law was understood in a narrow way as “essentially a negative value” which was “designed to minimize the danger created by the law itself.” It was a value about what the government and its officials cannot do when they exercise power over their subjects. On this account, the point of the rule of law is to constrain government so the law can comply with its guiding function and enable the people it governs to go on with their lives and commit to valuable pursuits: “We value the ability to choose styles and forms of life, to fix long-term goals and effectively direct one’s life towards them.” And the basic idea of the rule of law is that governmental action, including adjudication and any act which produces particular directives, is subjected to “general, open, and stable” norms. One of the basic requirements of the rule of law is that “the making of particular laws should be guided by open and relatively stable general rules.”
Nevertheless, critics have argued (with some reason) that there was something missing in this normative account. Although the eight principles that Raz offered to specify the content of the rule of law play a crucial role in the explanation of the legitimacy of political power, the value of the rule of law seems to encompass also other important principles, such as the importance of legal processes and forms of reasoning and argumentation, and the political accountability of governmental officials toward citizens or of each citizen toward others.
I believe that even these critics failed to capture an important aspect of the rule of law. This unnoticed yet powerful aspect refers to a more positive virtue, which Raz has pointed to in his mature reflection on the ideal of the rule of law. To achieve a complete understanding of that ideal, we must reflect on a more active dimension of the role of our government and its officials. We should consider official action as a public form of “intentional action,” in the sense that Raz described it in his defense of the “classical approach” to practical reason. In Raz’s account, “intentional action is action for a reason,” i.e., action in response to the “facts in virtue of which those actions are good in some respect and to some degree.” Legal institutions are built and justified, if this is correct, as “responses to the requirements of practical reasonableness.”
When we focus on arbitrary governments, we can easily notice what was missing in most of the previous conceptions of the rule of law. What makes a government arbitrary is the absence of a proper attitude towards the reasons that apply to public actions. “Arbitrary” governmental action is action “indifferent to the proper reasons for which power should be used.” (P. 5.) The gist of the argument here, is that political action must be guided by “a purpose which could be the purpose of a government” (P. 6), and that whenever an official fails to adopt an appropriate attitude towards this type of purpose she distances herself from the ideal of the rule of law.
An important conclusion stems from the specification of the notion of arbitrary government: compliance with the rule of law is about adopting the attitude towards public policy required by the purposes of political power itself, i.e. by the goals and reasons which are capable of justifying the very existence of a coercive government. So here lies a question, the answer to which may provide the key to understand the virtue of the rule of law: Which reasons are appropriate for the government to act upon? What kind of rational action can be capable of satisfying the requirements of the rule of law? Before answering this question, we must clarify two “crucial points” of Raz’s novel account. “First, not every failure of the government to be guided by the law is a breach of the rule of law.” (P. 6.) In other words, what matters is not that the government always get a right answer about what the law, properly construed, requires one to do. To put it in Ronald Dworkin’s vocabulary, it is rather to avoid “contempt” for the law and for the reasons that apply to a legitimate government. If an official attempts to act on these reasons, but fails to do so because of “mistakes and incompetence,” she does not violate the rule of law, as long as she does not manifest “indifference to the reasons that should guide the government.” (P. 6.)
“Second, it would be a mistake to think that obeying the law, narrowly understood, is the only guide for the governmental action.” (P. 6.) To be sure, Raz is convinced that even when an official has discretion and the power to interpret the law or create novel norms to adjust the law to a particular situation, she must be “guided by certain reasons and must avoid others.” (P. 6.) She must not, for instance, be indifferent to the distinction between “the rights and powers of governments and the rights and powers of private owners.” (P. 6) As a government official, her action is guided by special reasons which make her action an appropriate response. She has, in other words, special responsibilities which are constitutive of the rule of law.
We can now see the full picture of the value of the rule of law: to act under the rule of law is for the government to act as a custodian of the interests of the governed. The rule of law is about a specific form of political responsibility, to perform a set of duties “in the interests of the governed.” (P. 7.) It is to recognize both a special relationship between the government and its subjects and a set of special duties. It is to act with the manifest intention to “exercise [one’s] power according to the law.” (P. 7.) In summary:
Governments conform to the rule of law when they act and exercise their power according to the law. Governments claim to be morally legitimate in part because they are constituted by a legitimate system of law, and that law provides reasons that bind the government that it constitutes. The government acts arbitrarily when not trying to follow the law. The test of conformity to the rule of law is acting with the manifest intention to serve the interests of the governed, as expressed by the law and its morally proper interpretation and implementation. (Pp. 7-8.)
This is, for Raz, the “core idea” of the rule of law. And I think this is a brilliant contribution to this important theme in legal and political philosophy.
Steve Hedley, The Rise and Fall of Private Law Theory, 134 L. Quarterly Rev. 214 (2018)
In one sense, contemporary private law theory offers a wide range of approaches. For example, contract law theory includes significant theories whose focus ranges across promise, consent, property, commerce, reliance, choice, and wealth maximization, just to offer a quick sample. In tort law, one also finds theories that emphasize corrective justice as well as theories grounded on the inherent (“formalist”) nature of certain kinds of interactions. Under Steve Hedley’s analysis, however, all of these theories (and the comparable theories of other doctrinal areas within private law) in fact cluster in a narrow category, one that excludes important considerations once considered central to private law theory. In particular, Hedley’s argument is that modern private law theory tends to ignore or discount the purposes the state might try to achieve through law–the use of legislation and regulation in private law areas in order to achieve collective objectives. Hedley goes on to show how this is a relatively recent development, that older writings on private law offered a more central place for public purposes.
If, as current theories claim, private law doctrinal areas are, in fact, essentially about a particular value, or essentially about wealth maximization, or essentially about intrinsic-formalist truth, then what the state does will likely be seen as either irrelevant or ill-advised. State action will undermine the innate wisdom of the efficient market or the efficiency-increasing judgment of judges, and will distort outcomes away from what corrective justice requires.
Another reason why contemporary theories of private law–theories that purport to apply to particular areas of law across (all) jurisdictions–might avoid focusing on legislation and regulation is that such state actions inevitably vary from one legal system to another, often in very significant ways. And that variation threatens the (express or implied) universal claims of private law theory. (In Contract as Promise (1981, 2nd ed. 2015), just to choose one example, Charles Fried offered us a promissory theory of contract law, not a promissory theory of American contract law.) For Hedley, who is skeptical of the universal claims of private law theory, this is all the more reason to emphasize the collective purposes present variously in different countries’ private law.
It would also be a positive under his analysis that discussions of private law focus more on the details of everyday practice. Contract law theory should have more to say about the boilerplate that dominates consumer contracts through its presence in standard forms and online agreements. Tort law theory should have more to say about insurance that sharply affects accident compensation and accident deterrence, the regulation that frequents supplements or overrides litigation to set standards of behavior, and the use of state accident compensation schemes that in many countries and in many contexts is an alternative to tort litigation.
Hedley makes the important point that scholars from different jurisdictions may view the law in distinctly different ways. As he notes, there are often sharp variations in perspective between lawyers in common law and civil law countries. Even among common law jurisdictions, the differences can be significant–at times in ways that even affect Hedley’s own argument. And this is the basis for one small quibble. Hedley expresses concern that academics’ focused on “explaining” law will crowd out necessary work by scholars focused on improving law. There are some grounds for thinking that analytical work on private law has pushed aside prescriptive/normative work in Britain or on Continental Europe, or at least that it did so in the past. However, this fear (or accusation) is entirely ungrounded when thinking about American scholarship, where prescriptive/normative work has been, and continues to be, vastly more numerous, and vastly more influential, than analytical work.
The seminal scholarship of H.L.A. Hart still looms large over much of jurisprudence. There are countless commentaries, challenges, exegeses, celebrations, and elaborations on offer. For this reason, it takes an incisive mind to add to Hart’s account. That is precisely what Philip Pettit does. His recent article takes a careful look at one aspect of Hart’s Concept of Law that is often mentioned in passing, sometimes criticized, but never carefully retraced and fleshed out: his genealogy of law.
In his article, Social Norms and the Internal Point of View: An Elaboration of Hart’s Genealogy, Pettit takes on some of the lingering questions surrounding Hart’s genealogy. How do primary rules arise? Are they any different from customs, habits, or other forms of convergent behavior? What, exactly, constitutes the internal point of view? If one acts in conformance with a community out of fear for social sanctions, can one be said to occupy the internal point of view? Perhaps most importantly–what, exactly, does Hart’s origin story of law tell us about the distinctions between law and custom, norm and habit? Pettit takes us through each of these questions as he reconstructs a genealogical account of how pre-normative society (“Prenormitania”) could be imagined to have evolved into Hart’s pre-legal society (“Normitania”). This sheds new light onto Hart’s own genealogy, which of course takes Normitania as a given and focuses on how it develops into a legal society (“Lexitania”).
I suspect a large reason for the relative neglect of Hart’s genealogy is a lack of appreciation for the sophistication of the genealogical method. Pettit starts his article by setting out its virtues and highlighting how radical an approach it was at the time, when Hart was writing in an intellectual world shaped by J .L. Austin. Genealogies offer plausible explanations of how a concept might be imagined to have come about. It presumes that there is such a thing as a point of a concept and seeks to find out what that point is.
Genealogy offers distinct analytical advantages. It gives an account of a concept in terms of characteristics, motivations, and interests that persons are granted to have. Against those granted assumptions, it then provides a functional analysis of the concept in question. As such, genealogical analysis offers a method for deriving what is functional from what is not functional or only functional at a lower level. Its abstract or fictional approach prevents a confusion between functional explanation and actual fact. As Alasdair MacIntyre explains, the genealogist uses fiction precisely so that she can escape the fate of the theorist who is “inescapably imprisoned within metaphors unrecognized as such.” Pettit takes this method seriously, and his article merits careful reading for that reason.
Hart’s genealogy describes pre-legal society as one without legal institutions: no courts, legislature, or officials. In this society, “the only means of control is that general attitude of the group towards its own standards of behavior.” (P. 91.) These attitudes shape “primary rules of obligation,” which include prohibitions on violence, theft, and deception, inter alia. As long as a majority of the pre-legal society accepts the rules, they live in a stable environment of “unofficial rules” resembling our own rules of etiquette. Over time, rules about rules (secondary rules) become necessary and thus a legal system develops.
Pettit offers insight into the nature and origin of those unofficial norms that Hart take for granted: primary rules of obligation. Hart does mention that these rules arise out of communal attitudes, and that they can only be maintained in communities with close ties of kinship, common sentiment, and belief. But how? And why is that important?
Pettit gives a carefully considered answer. Informal rules and the attitudes that shape them arise where cooperation is necessary. Repeated cooperation implies relational regularities, and with them, relational expectations. When a community forms a relatively familiar environment for complex patterns of cooperative regularities, reputation (and expectations it engenders) becomes multilateral. An economy of esteem develops.
Is convergent behavior based on concern for reputation and esteem sufficient to constitute primary rules in Hart’s sense? No. Hart makes it clear that at least some part of his pre-legal society occupies the internal point of view. And, argues Pettit, this means that rule-following no longer has a causal-instrumental character for these individuals. Rather, the rules have been accepted and internalized–they themselves, rather than the consequences of following them, are the source of motivation.
When a norm has been internalized, a community has come to occupy a general attitude toward it. At this point, it becomes possible to distinguish between outsiders and insiders–the external and internal point of view. The internal point of view exists where norms are ratified: community members can confidently avow that all members of their community approve of, and follow, the norm in question. Such avowal implies commitment: members inviting each other to hold them accountable for living by the norm in question. This, argues Pettit, is the internal point of view. An implied consent to being held accountable, rooted in one’s own motivation to follow the rules in question.
This is an important insight. Recent scholarship on the internal point of view has hollowed out the concept to the point where it often amounts to some causal-instrumental calculus by a rational agent. Pettit recovers Hart’s original insight: the internal point of view is that perspective from which a rule itself is the source of motivation. This precludes coarse instrumental rationality from capturing the notion accurately and demands a re-evaluation of our assumptions about rule internalization.
The death of John Gardner this summer, at age 54, is a fearful loss. This generous, multi-talented, and much-loved man was a world-renowned figure in several fields of jurisprudence, including not only the general topic of the nature of law but also in the special theories of criminal law, tort, and sexual assault. He was one of the pillars of Oxford’s outstanding strength in the philosophy of law. What irony that one of the last of his writings was titled The Twilight of Legality.
The article itself is something of an elegy for the imminent passing away of a still familiar self-conception of the law, and of the lawyer’s calling, that some will think already archaic. This is a conception of the lawyer as not merely a service-provider, but as public citizen having a special obligation to foster legality as a public good. This obligation in turn entails seeking justice according to law, and not merely justice between parties. John was conscious that his remarks might come across as cultural criticism, but he framed his subject as a philosophical puzzle: how to reconcile the trend toward ever-greater juridification of everyday life with legality, that is, with the rule of law? “Juridification” meaning: the manufacture of laws and legally enforceable non-law norms—especially contracts binding consumers to terms set in boilerplate language dictated by corporations.
At first glance no puzzle is apparent. More laws and more legally enforceable norms means more law to be ruled by, and more law to be ruled by means more rule of law, no? No. Beneath this specious surface, juridification conceals trends whose confluent effect is to erode the rule of law. One of these trends is a side effect of the capitulation of democracies to the demands of corporate power. Governments make a “pathetic display of legislative machismo,” (P. 3) by reflexively criminalizing whatever arouses the moral panic of the hour (so long as, I would add, the newly-to-be-criminalized class is powerless). In evidence, John cites a recent decade in which the UK created an astonishing 3000 novel criminal offenses. This is not as draconian as we would assume, because it is buffered by a counter-trend toward selective under-enforcement. But, as John points out, the counter-trend itself is alarming, and especially so for its insidiousness.
The rule of law, for law-and-order types, demands strict obedience by the public. Where that strict obedience is not forthcoming, then for the law-and-order types among us, officials ought to use lawless means. John rightly rejects this “symmetrical” view. The rule of law makes asymmetrical demands of officials and of citizens (as Rawls, among many others, recognized). Simply put, “We ordinary folk should laugh at stupid laws; officials, poor things, have to uphold them.” (P. 7.) When the law is ridiculous, or, worse, it is unknowable and unmemorable, the rule of law suffers because the law cannot guide us. It cannot rule us, only officials can. But officials, in turn, cannot rule us by law either, despite even their earnest efforts to do so, if too much is left to their discretion.
Of equal concern to John is the accelerating privatization of the domain of private law. This trend is most obvious to us when we agree to “click-through” to access on-line resources that would otherwise be closed to us. In the process of “agreeing” we waive rights too numerous and extensive even to want to know about; and the rule of law suffers, as Margaret Radin and Judith Resnik have argued. John focuses on one aspect of this: the take-it-or-leave-it consignment of consumer disputes to private arbitration. This kind of privatization is especially insidious when, as is typical, it uncouples dispute resolution and judicial oversight. Here, the familiar Diceyan objections to droit administratif—as judicially unsupervised bureaucratic lawmaking—are amplified by the fact the corporations that insist upon isolating legal power from legal oversight do so solely to maximize profit. The parties may benefit from the legal enforceability of private arbitral outcomes but the public good of legality goes unprovided. There is no common law, no judging with an eye to wider consequences, and no working pure of the legal doctrines that ought to guide the interpretation and application of contract terms.
John deftly debunks the libertarian notion that the law is coercive whenever it interferes with private orderings except when it enforces the supposed terms of private orderings; and he summarizes:
any effect that the law gives to contractual norms should be an effect that the law, through the courts, ultimately get to determine. And that implies, I suggest, no ouster of the courts’ final jurisdiction over questions of law arising under the contract, including its legal construction, which is an integral part of the determination of its legal effects. (P. 8.)
The global corporate behemoths are not (yet?) so far along on their way toward becoming outright Hobbesian Leviathans that they need not appeal to public governments to enforce their legal rights. Their ideal is “juridification without legality,” which can be seen as another aspect of what Elizabeth Anderson calls private government, and what Samuel Freeman counts as feudalism: the appropriation, for the purpose of extending private dominion, of the normative forms of public power.
What do these trends mean for those who would become lawyers, and those who train them? The germ of the article is his Irvine Lecture, delivered in 2015 to faculty and students at Cornell Law School. John concludes with reflection upon his career as a barrister, during which interval lawyers came to be thought of as a pricey category of service-providers. To invoke the lawyer’s special responsibility to assure “access to justice” is the easier part of tailoring lawyers to the service-provider template: “Much harder to integrate into the service-provider model…is our special responsibility, as lawyers, for upholding the rule of law. That is because the rule of law is for the most part a public good in which our clients may well have relatively little individual interest.” (P. 16.) Winning strings of victories for underdogs is not enough:
Today’s young lawyers…have a “special responsibility for the quality of justice” going beyond any that the original drafters of the Bar Model Code of ethics could have anticipated. For they face a world more hostile to legality, and yet more wedded to juridification, than any we have seen before. (Id.)
Tackling the special “evil of privatization” manifest in the displacement of legality by juridification is now an indispensable task of lawyering “in the best sense”—a task left to us to pursue without John Gardner along to guide us.
Everyone agrees that law has a conduct-guiding function. Moreover, most legal theorists assume that this conduct-guiding occurs, or is supposed to occur, by providing reasons for action. This very readable book is about the kind of reasons to comply with the law that law can provide and—under favorable conditions—does provide. As most of us know, officials applying legal requirements largely act as if these requirements trump (nearly) everything else for law subjects. In terms made famous by Joseph Raz, they treat law as giving rise to pre-emptive reasons to comply. These are reasons that (a) are ordinary reasons in favor of conduct and (b) exclude some opposing reasons, in the sense that they are not to be considered in a law subject’s practical reasoning. But this is not how civil disobedients and otherwise law-abiding motorists treat many legal requirements. (The latter, notoriously, consider what appear to be excluded considerations, such as the speed of traffic and the apparent likelihood that speeders will be apprehended, to reach decisions about obeying the posted speed limit.)
This gives us two views about what sort of reasons law (potentially) provides for action: (1) reasons that pre-empt competing reasons, and (2) reasons that compete with others in terms of weight. Gur carefully criticizes the two positions as inadequate before developing a refreshingly different sort of answer. The reader will be surprised to learn what this difference implies about the law and its authority.
In a nutshell, according to Gur, what is wrong with the first, pre-emption model is that it provides the wrong answer in cases in which officials create a clearly very immoral directive, and in cases in which they create a directive that has a clearly very immoral application. In such situations, the law subject should not comply. This is true even when the legal officials have legitimate authority and are competent. Moreover, one cannot rescue the pre-emption model by arguing that all moral considerations are not excluded by—and therefore, not pre-empted by— legal directives (or by these sorts of directives). Gur contends that it is only by reasoning from the (entire) balance of reasons that instances of grave immorality in directive-application can be identified by the law subject.
In brief, what is wrong with the second, weighing model is that its method of reasoning is highly susceptible to a cognitive and motivational problem that legal regulation (ceteris paribus) isn’t. Gur contends that social problems are caused by the fact that people are fallible in judging the balance of reasons, in part because people commonly have cognitive biases. Law is less vulnerable to the biases— because of features such as the generality and prospectivity of its directives—yet it can solve these social problems. These facts help justify using legal regulation to guide conduct and provide a reason why the law subject should not rely on an individual assessment of the balance of ordinary reasons for (and against) compliance with a legal directive—such an assessment can too often be mistaken.
Gur defends a third position he thinks of as a middle ground that he calls “the dispositional model.” This model treats motivation as bearing on an agent’s practical reasons for action because, as Gur puts it in his last chapter “the problem is partly motivational,” so its solution must be also partly motivational. (P. 217.) According to the dispositional model, reasonably just and well-functioning legal systems give rise to reasons to adopt a certain general normative attitude toward the legal system. (This is in addition to the ordinary reasons that legal requirements sometimes give rise to.) The attitude in question is both settled—“reasonably stable,” Gur says—and motivating. This attitude is composite; behaviorally, it shows itself in, or is composed in part of, a disposition to comply with the law. This disposition is deep-seated, yet defeasible in its force. Someone with it is persistently somewhat resistant to reasons for non-compliance, but never entirely.
Gur argues that his is the right position to take, given the likelihood of a law subject’s biases and the structural features of law in a system that meets certain conditions. We should adopt this particular normative attitude because its disposition averts some error in practical reasoning—in the kinds of good legal systems Gur has in mind. In other words, in legal systems meeting certain conditions, it is likely that we ought to comply. The disposition pulls against our contrary cognitive biases and tends to make us reach this conclusion. Yet our biases and our fallibilities in practical reasoning do not give us reason to go so far as to exclude opposing considerations in our practical reasoning when faced with legal demands.
Gur further argues that this distinctive disposition cannot be replaced by ordinary moral dispositions. You don’t have the normative attitude in question if all you have are moral attitudes such as respect for dignity, a commitment to justice, and sensitivity to the suffering of others. His argument is that reliance on moral attitudes may not combat biases against compliance with mala prohibitum directives, and that moral disagreement would undermine the “necessary compromises” law makes.
Space does not permit me to comment on his interesting discussions on related topics—such as an extended critique of Raz’s Normal Justification Thesis for authority and what research reveals about why people obey the law.
I think Gur is very largely correct in his major claims. And if so, it matters; for it raises a problem about the legitimacy of actual legal systems, such as our own. For: (a) legal officials act as if law subjects have reasons to comply even when the legal system isn’t reasonably just and well-functioning (and even when officials know or suspect this fact); and, as I mentioned at the outset, (b) legal officials act as if legal requirements create pre-emptive reasons for law subjects.