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It Can’t Happen Here, Has It?

Adam Przeworski, Why Bother With Elections? (2018).

This concise and lucid book “is a summary of our current collective understanding of the method by which some societies decide who would govern them.…” (P. VIII.) The author is a professor of politics and economics at NYU, and an esteemed authority in the field of political economy. The book could not be timelier: many of us simply cannot understand how elections got us to where we are now. Bafflement can beget both anger and apathy. Much of the collective social-scientific understanding Przeworski relates will be deflating even for those who have already cast aside illusions. Nonetheless, he urges us to keep on bothering.

The book begins with a reminder that “elections are a modern phenomenon.” (P. 13.) The first national legislative election was held in 1788, to the United States Congress. Since then, elections have become an almost universal norm: today, “all but a handful of countries have legislatures elected by universal [qualified] suffrage and chief executives either elected in popular elections or indirectly by elected parliaments.” (P. 17.) The elections boom was accompanied by, and surely to some degree motivated by, the Rousseavian aspiration to reconcile humankind’s innate freedom with the fact that coercive government is here to stay. This yearning for self-government finds its expression in the rituals of popular elections.

Election rituals vary widely in their forms. Przeworki explains the differences between parliamentary, presidential, and “semi-presidential” electoral systems, and between proportional representation and first-past-the-post methods of composing a legislative assembly. The latter rules tend to determine how many political parties are viable: according to “Duverger’s Law,” presidential systems tend to be two-party, and parliamentary systems to be multi-party. The United States is unusual in using first-past-the-post in a presidential system, and unique among presidential systems in its indirect mode of electing presidents. The upshot is the permanent possibility of a divided government in which a legislative majority opposes a president, and the further possibility that such a president lacks the support of a popular plurality even when elected.

Madison wrote, in Federalist #10, that “the dangers to the holders of property can not be disguised, if they are undefended against a majority without property,” or even against a majority with less property than it thinks fair. This, Przeworki adds, is one thing on which conservatives and socialists have long agreed. Election systems have been devised in various ways to defang the threat while preserving the myth of popular —rather than propertied—sovereignty. The obvious expedient of excluding the unpropertied from the franchise has almost disappeared. Over the two and a half centuries of the electoral era, universal adult suffrage has steadily become the norm all across the globe. But economic inequality persists, and increases, even as formal political equality has become the norm. Why?

Various devices, such as indirect rather than direct election of representatives, tend to entrench incumbents and, with them, the status quo. Counter-majoritarian institutions—such as the presidential veto and judicial review— dampen majority power. The historical trend is toward constitutional judicial review and central-bank independence of the electorate. Another device is a super-majoritarian voting requirement, which bicameralism, in effect, is. Przeworski reports an estimate that congressional legislation needs to have 75% support across the two chambers in order to succeed. (Compare Article V’s requirement a valid constitutional amendment must be ratified by that three-quarters of the states.) With caveats, Przeworski offers “a conjecture about the mechanisms that drive this history. Given the extant trenches, those in power make concessions either when they face a foreboding threat from without or when some of them expect to improve their competitive position by finding allies among those currently excluded [and] whenever particular trenches are conquered, the elites find substitutes to protect their interests. These cycles are repeated over and over.” (Pp. 45-46.) Przeworski does not mention mass incarceration, penal disenfranchisement, and voter ID laws as instances of these obstacles, but he does note the curious fact that of the modern industrialized nations only the US holds national elections on a workday.

Incumbents win, on average, four times out of five. Rejecting more benign explanations, Przeworski suggests that the advantages of incumbency itself account for their success in getting themselves re-elected. He recounts an experience he had one winter living Chicago, trying to get authorities to free his car from the ice encasing it. Calling the City got no response, so his wife called the Democratic precinct captain. “He was at our door in minutes, pointing out that we had not voted in the last municipal election.” (P. 58.) Przeworski instantly gave the expected assurances. Problem solved. Obviously, this anecdote does not itself explain the incumbent advantage. Partisan “clientism” is not so blatant in other US cities; but studies of campaign contributions show that there is an incumbent advantage here, too. Is contribution the reported “pro quo” that indicates an implicit “quid” that the public at large can only guess at?

Przeworski is cautious about the widely held view that money in politics is mainly what stands between us and more representative government: “to date, no consensus has been reached regarding the effectiveness of campaign spending on vote shares.” (P. 65.) Nevertheless, he endorses his colleague Ann Harvey’s finding that “removal of state limits on campaign financing in the United States led to increased Republican vote shares and the election of more conservative candidates.” (P. 66.) But the real problem is structural: “Private ownership of productive resources limits the range of outcomes that can ensue from the democratic process … crucial economic decisions, those affecting employment and investment, are a private prerogative.” (P. 74.) Campaign spending limits don’t touch that.

How do democracies and autocracies compare in terms of economic performance? Autocracies tend to occupy the tails of the bell curve: “while the fastest-growing economies tend to be poor autocracies, so are the economic basket cases.” (P. 101.) Przeworski reports that at any given level of total output, democracies exhibit higher wages better life-expectancy, and lower economic volatility. But he sees an ominous development in the combination of stagnant median income growth and dramatically increased inequality in the democracies: “the erosion of the belief in intergradational [sic] progress may well be historically unprecedented and its political consequences are ominous.” (P. 99.) How have elections allowed this to occur?

Assume majority rule is in force, and the distribution of wealth is on the voting agenda. If we assume further that everyone votes according to self-interest and nothing else (i.e., no one cares what her relative share is), the so-called “median-voter theorem” tells us that the resulting distribution of wealth will tend to equate to that of the the voter whose wealth is such that half of the electorate has more and half has less. Thus, “the coexistence of universal suffrage with economic inequality is hard to fathom.” (P. 104.) Yet, surprisingly, “at every level of per capita income, the extent of inequality is not lower in democracies than in autocracies.” (P. 105.) And he reports the astonishing further fact that although “democratic governments redistribute more income … as income inequality increases from very low to intermediate levels, …they redistribute less as inequality increases once it is already high.” (P. 105 and Fig. 10.1) In other words, across a range of different democracies, low levels of inequality tend to call forth mitigating efforts to dampen further inequality, but high inequality leads to ever higher inequality. Dismissing various other explanations, Przeworski concludes that “the main culprit is that people are not politically equal in economically unequal societies” —meaning, in economically unequal “democratic” societies. (P. 106) Merely formal political equality does not prevent massive inequality of political influence in conditions of high economic inequality; and as substantive political inequality increases, so too does the economic inequality that begat it: “a vicious circle.” (P. 111.)

Elections neither presuppose, nor do they tend to promote, either political or economic equality. As economic inequality increases, elections do less and less to brake it. Nonetheless, elections make civic peace possible. How is this? Przeworski observes that elections facilitate peaceful transitions of power only if the stakes are not too high for the incumbent. “Just imagine that the … incumbent fears that if he loses the forthcoming election, he will exit the office through a window.” (P. 49.) Competitive elections presuppose more than tolerating opposition: they also presuppose that the incumbent may relinquish power without anxiety. Ordinary politics must be low-stakes politics, in this sense. Once the election habit has taken hold, it becomes stronger with each cycle. The “outs” know their turn will come and the “ins” know that if turned out they will be allowed to win themselves back in. So long as the populace also retains its faith in “intergradational progress,” the electoral stakes stay manageably low for all, and the election habit strengthens with repetition.

But, as Przeworski indicates, confidence in intergradational progress is eroding in the western democracies. And his analysis suggests a latent dilemma. The opposition, to be genuine, must give voice to discontent; and, to be effective, it must stoke discontent. But the election habit is based on an unspoken promise of amnesty for the incumbent rascal. Otherwise, an incumbent, who faces the prospect of prison for perceived crimes, will self-defensively misuse the incumbent’s advantage to rig (if not abort) the election process. Where amnesty is the norm, as it must be to keep the stakes low, elections can do little to check top-level official corruption and simony, which can be expected ever to increase unless some breaking point exists. On the other hand, once the amnesty norm is breached, elections cease to be the low-stakes affairs that orderly transitions of power presuppose.

Przeworki, in concluding, reassuringly dismisses the possibility of democracy collapsing in wealthy countries where the election habit has taken hold. But he is concerned about “deterioration” —“although we should not be desperate, we should also not be sanguine. Something profound is going on.” (P. 132). Anyone who shares this concern would do well to bother with this illuminating book.

Cite as: W.A. Edmundson, It Can’t Happen Here, Has It?, JOTWELL (April 26, 2018) (reviewing Adam Przeworski, Why Bother With Elections? (2018)), https://juris.jotwell.com/it-cant-happen-here-has-it/.

The Transformation in Kelsen’s Last Works

Stanley L. Paulson, Metamorphosis in Hans Kelsen’s Legal Philosophy, 80 Modern L. Rev. 860 (2017), available at SSRN.

Though Hans Kelsen is arguably the best-known and most influential legal philosopher of the 20th century world-wide, he is not especially well known among American scholars, and when his work is discussed in this country, it is often misunderstood.1 One scholar who has worked tirelessly for decades to make Kelsen better known and better understood on these shores is Stanley L. Paulson. He has (with the help of Bonnie Litschewski Paulson) translated Kelsen’s works,2 written numerous articles summarizing and evaluating Kelsen’s work, and translated and compiled other significant commentaries on Kelsen.3 Paulson’s most recent article, “Metamorphosis in Hans Kelsen’s Legal Philosophy,” (a) explains the neo-Kantian approach of most of Kelsen’s works (Pp. 876-880), (b) discerns certain weaknesses in the argument (Pp. 880-881, 893), and (c) investigates when and why Kelsen ultimately abandoned a neo-Kantian approach, and also changed his views about the application of logic to (legal) norms (Pp. 861-865, 882-892).

Anglo-American legal scholars are accustomed to a more empirical and pragmatic approach to philosophy in general, and to the study of law in particular, which is why H. L. A. Hart’s approach has been well received.4 What has made Kelsen’s works so difficult for us is that his best-known writings are grounded in a very different approach, one based on Kant’s transcendental argument. As Paulson explains, Kelsen’s neo-Kantian argument goes along the following lines: We need to ask what follows from the fact that we (or “legal science”) view the acts of officials as valid legal norms. The mystery is grounded in the fact that the actions of officials are in the empirical realm (facts about what legislators, judges, administrators, and other officials have done or said), while legal rules are in the normative (non-empirical) realm. A standard philosophical view is that normative conclusions cannot be derived from strictly empirical premises.

Kelsen died in 1973; a lengthy manuscript that he left unfinished was published posthumously in 1979, with an English translation appearing in 1991.5 That work caused a sensation among legal theorists, because it involved a sharp departure from Kelsen’s longstanding neo-Kantian approach to understanding law. In that final work, Kelsen presented his “Basic Norm” now as a fiction (in the spirit of Hans Vaihinger’s work6, and offered an approach based on skeptical empiricism, in the spirit of David Hume.

In the present article, Paulson shows that Kelsen’s break in fact occurred in 1960, many years before his death, and, more surprisingly, that this break in fact had a precursor, in some of Kelsen’s writings in 1939-1940 (Pp. 885-892). Paulson argues that Kelsen’s switch from Kant to Hume may have been tied to a different dispute, regarding whether it makes sense to apply logic to norms.

Paulson’s article ultimately makes a great deal about the transformations in Kelsen’s views clearer, but, in the process, creates new mysteries. For example, the switch away from neo-Kantian views in 1939 and 1960 is left clearer than the return to that approach in 1941, and its continued use until 1960. Paulson speculates (P. 891) that Kelsen’s return to his neo-Kantian approach in 1941 may have been due to his practical circumstances (in exile from Europe, looking for a permanent position), but more may be needed to explain his persistence with that approach for two more decades.

For those who wish to study Kelsen (with or without the post-1960 works), Paulson’s publications, including the present article, are the best places to start.

  1. See D. A. Jeremy Telman, Hans Kelsen in America – Selected Affinities and the Mysteries of Academic Influence (2016). []
  2. See, e.g., Hans Kelsen, Introduction to the Problems of Legal Theory (Bonnie Litschewski Paulson & Stanley L. Paulson, trans.,1992). []
  3. See, e.g., Stanley L. Paulson & Bonnie Litschewski Paulson, Normativity and Norms: Critical Perspectives on Kelsenian Themes (1998). []
  4. See, e.g., H. L. A. Hart, The Concept of Law (Oxford, 2012). []
  5. Hans Kelsen, General Theory of Norms (Michael Hartney, trans., 1991). []
  6. See Hans Vaihinger, Philosophy of “As If” (C. K. Ogden, trans., 1965). “The acts of will of legal organs are to be treated as if they could be understood normatively, not empirically.” (P. 884, footnote omitted). []
Cite as: Brian Bix, The Transformation in Kelsen’s Last Works, JOTWELL (March 28, 2018) (reviewing Stanley L. Paulson, Metamorphosis in Hans Kelsen’s Legal Philosophy, 80 Modern L. Rev. 860 (2017), available at SSRN), https://juris.jotwell.com/the-transformation-in-kelsens-last-works/.

A Story of Jurisprudence and True Philosophy

This is a shaggy dog jot. It starts in the conventional way by identifying a recent piece of work that is recommended for the attention of the reader. However, in the course of justifying that recommendation there is a series of diversions to other works, which distracts from any sustained understanding of where exactly the virtue of the piece is to be found. But, like a shaggy dog story which finally reveals its point, there does eventually emerge a point to the recommendation; although, as with the simile, not the point that might have been anticipated.

The work cited is a response by Gerald Postema to critics in a symposium on the volume covering common-law legal philosophy in the twentieth century he has contributed to Springer’s multi-volume Treatise of Legal Philosophy and General Jurisprudence. Within his coverage of that subject matter, Postema cites an article as a resource for unpacking the notion of true philosophy (vera philosophia) which he then utilizes in his own assessment of the achievements of common-law legal philosophy. This article by Donald Kelley in the 1976 Journal of the History of Philosophy,1 has not, as far as I am aware, received much attention in mainstream Jurisprudence; and I have failed to uncover any real enthusiasm for it within more exclusive, niche jurisprudential concerns. It is, nevertheless, central to our present concerns.

The recent availability of Postema’s volume in a far more affordable paperback version appears to have provoked discussion in the review pages of the core understanding of legal philosophy expounded by Postema in that work. Notably, Kevin Walton has challenged the basis of Postema’s evaluation of the failings of common-law legal philosophy, and has in turn offered his own account of at least a virtuous legal philosophy (if not an account of true philosophy) by which the efforts of legal philosophers can be measured.2 Postema has responded to Walton’s criticism (Pp. 611-12), providing us with further thoughts on where the value of legal philosophy is to be found. The disagreement between Postema and Walton turns on how, and the extent to which, legal philosophy has attained the status of a “sociable science”. This alternative depiction of what can be expected to be achieved by Jurisprudence, picked up by Walton, had been amplified in an article by Postema in the 2015 Virginia Law Review, subsequent to the initial publication of his Treatise volume.

There is a close connection in Postema’s writing between a sociable science and vera philosophia, as signalling the appropriate aspiration for Jurisprudence. However described, the aspiration finds fulfillment in engagement with the matters that are core to understanding the human social condition. The debate between Postema and Walton fixes on which of these matters have been taken into account by twentieth-century anglophone legal philosophy, and the level of  emphasis they have received. Their discussion also encompasses the extent to which legal philosophy has been receptive to the contributions of related disciplines in constructing a full and informative picture of sociability.

At this point, the prized accolade of vera philosophia appears attainable in different ways by Jurisprudence. Either by displaying an adequate grasp of its appropriate subject matter (sociability), or through a willingness to borrow from adjoining disciplines their coverage of the subject matter. Seen in  this way, the prize might equally be offered to other disciplines, if only they provide adequate coverage, or form suitable alliances, to deal effectively with their own particular subject matters.

On returning to Kelley’s article, we find a different criterion for awarding the honour of vera philosophia to Jurisprudence. It is not on the basis of effective coverage, but on the provision of singular insight. Postema cites Kelley’s article in advancing a noble philosophical vision for Jurisprudence contrasted with a narrow perspective on law found in blinkered professionalism – taking this to be the perspective of the iurisperiti (those merely learned in the law, or unthinking lawyers) in the denunciation from Budé that Kelley quotes. More than that is found in Kelley’s article in distinguishing the true calling of vera philosophia. Kelley also quotes the words of Louis le Caron (at 270), to make the point that it is also to be distinguished from mere philosophy: “true philosophy is contained in the books of law and not in the useless and inarticulate libraries of philosophers, who in effect are men of great learning but incompetent in public affairs”.

On this account, Jurisprudence is not prized because it displays virtues that any branch of learning might attain. Far from it. Jurisprudence is distinct from general philosophy precisely because it can offer the insights that philosophy misses. The idea emerging from Kelley’s survey of renaissance jurisprudence that Jurisprudence might have a unique perspective to offer between mere practice and mere philosophy is a tantalizing one. It seems plausible to suggest, on the one hand, that some kind of deeper theoretical reflection on the practice of law in regulating the social condition might yield more illumination than unthinking adherence to practice, while suggesting on the other hand that lofty philosophical speculation uninformed by a practical grounding is likely to be limited in the insight it can deliver.

It is one thing to state this as an aspiration for Jurisprudence; it is quite another thing to realize it. Kelley’s article, to be blunt, does not get us beyond reporting an aspiration that culminated in the sixteenth century. There is no evidence for supposing that such an exalted aspiration for Jurisprudence was maintained over succeeding centuries, either in the common-law world or in the civil-law world, as the relevant volumes of the Treatise reveal.3 Instead of providing the clarity of vera philosophia to inform us of the human social condition, Jurisprudence or legal philosophy has fragmented into discordant voices. In his general editorial preface to volumes 9 and 10 of the Treatise, Enrico Pattaro suggests that one can detect different versions of legal philosophy, which he attributes to general philosophers, jurists, and legal philosophers in a narrow sense. More recently, quite bitter rivalries have surfaced between those who see Jurisprudence as, or not (just) as, legal philosophy.

One possible clue to explaining this state of affairs is furnished by another of Donald Kelley’s works. In The Problem of Knowledge and the Concept of Discipline,4 Kelley suggests that the real factors shaping the substance of a discipline are to be found in the attitudes of those who exhibit mastery of the discipline and influence “disciples”. Different masters, different disciples, divided disciplines. If that line of argument is accepted, then one might reasonably question the value of noting efforts by its masters of a bygone age to elevate the discipline of Jurisprudence to a status it never actually achieved. And at the same time, question the emphasis given in a jot to an article that notes this very thing.

On further reflection, however, if we do take seriously Kelley’s thesis in his later piece, over the responsibility of the masters of a discipline for shaping the ambition and scope of that discipline, then it might after all be relevant to have our attention drawn to an era when those leading the discipline had a far more ambitious vision for Jurisprudence than it enjoys today.

  1. Donald Kelley, Vera Philosophia: The Philosophical Significance of Renaissance JurisprudenceJournal of the History of Philosophy 267 (1976). []
  2. Kevin Walton, Gerald Postema on Genuinely Philosophical Jurisprudence, 8 Jurisprudence 604 (2017). My own combined review of Postema’s volume and Lobban’s volume on the common-law legal philosophy of the preceding centuries can be found at the Singapore Journal of Legal Studies 387 (2017). []
  3. Volumes 8, 9, 11 & 12 cover both common-law and civil-law worlds from 1600 to the twentieth century, with volume 10 dealing with the “The Philosophers’ Philosophy of Law” for the same period. []
  4. The opening chapter of his edited collection, History and the Disciplines: The Reclassification of Knowledge in Early Modern Europe (1997). []
Cite as: Andrew Halpin, A Story of Jurisprudence and True Philosophy, JOTWELL (March 7, 2018) (reviewing Gerald J. Postema, The Perils and Prospects of Critical History: Comments on Bernal, Naffine, Vatter, and Walton, 8 Jurisprudence 609 (2017)), https://juris.jotwell.com/story-jurisprudence-true-philosophy/.

A New Blackstone

William Blackstone, Commentaries on the Laws of England (Ruth Paley & Wilfrid Prest eds., Oxford University Press, 2016).

William Blackstone was for a long time one of the central figures of both British and American legal thought. His Commentaries on the Laws of England was the text by which many learned law in England. In the United States, Blackstone was equally authoritative, though often read with additional commentary (e.g., by St. George Tucker1).

Blackstone’s Commentaries has also played a significant role within legal theory—especially for theorists critical of certain features of the approach to adjudication and judicial reasoning that he espoused and are large parts of Anglo-American tradition. Criticism of Blackstone and his Commentaries is, for example, integral to much of Jeremy Bentham’s writings on law.2 Bentham was an opponent of judicial law-making in general and the common law approach in particular. In a small piece called “Truth versus Ashurst” he compared the way that common law judges make law to the way people make laws for their dogs: “When your dog does anything you want to break him of, you wait till he does it, and then beat him for it.”3 This attack on the unpredictability and retroactivity of common law decision-making remains important to the present day.

Bentham’s student, John Austin, also made a famous attack on natural law theory, using a passage in the Commentaries as his stalking horse. Blackstone stated that “no human laws are of any validity if contrary to [the law of nature].”4 Austin countered that “to say that human laws which conflict with the Divine Law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced by judicial tribunals.”5 To Austin, Blackstone’s approach to legal reasoning—and hence many aspects of Anglo-American judicial tradition—conflated what the law is with what it ought to be.

In more recent work, Duncan Kennedy, a critical legal theorist, offered an extended discussion of Blackstone as the occasion for propounding his idea of “the fundamental contradiction.”6 This is a contradiction he perceives between individual liberty and the community coercion that both safeguards and threatens it. Kennedy used details from the Commentaries to support the conclusion that there is this ongoing “contradiction” in law and government.

As these examples show, Blackstone’s work has provided both a guidepost for a great amount of Anglo-American judicial practice and an object of criticism for a wide array of jurisprudential thinkers concerned with aspects of those traditions.

Until recently, those who wanted to study or cite to Blackstone’s Commentaries usually made use of a very good 1979 University of Chicago Press edition (Stanley N. Katz, ed.), which was a facsimile of the (1765-1769) first edition of the Commentaries. While this version of the Commentaries remains good enough for many purposes, the new Oxford University Press edition has significant advantages for those who want to dive deeper into Blackstone’s text, with particular attention to historical context and how Blackstone varied his text over the various editions up to the ninth (and first posthumous) edition (1783). Each volume of the new OUP Commentaries contains a helpful introduction by a different historical expert in the field (David Lemmings for Book I — Of the Rights of Persons; Simon Stern for Book II — Of the Rights of Things; Thomas P. Gallanis for Book III — Of Private Wrongs; and Ruth Paley for Book IV — Of Public Wrongs), along with the varia, and helpful tables of statutes and cases mentioned in Blackstone’s text, at the end of each volume.

Blackstone’s Commentaries remain a central source for understanding both historical and modern Anglo-American law – as well as many debates in Anglo-American legal philosophy – and Oxford University Press’s new edition of the Commentaries offers a valuable new resource for studying them.

  1. See, e.g., Robert M. Cover, Book Review, 70 Colum. L. Rev. 1475 (1970). []
  2. Jeremy Bentham, A Comment on the Commentaries (1776). []
  3. Jeremy Bentham, Truth versus Ashurst, The Works of Jeremy Bentham, Vol. V (1843), P. 235. []
  4. William Blackstone, Commentaries on the Laws of England, Vol. 1 (1768), P. 41 . []
  5. John Austin, The Province of Jurisprudence Determined (Wilfrid Rumble, ed., 1995) [1832], Lecture V, P. 158. []
  6. Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buffalo L. Rev. 208 (1979). []
Cite as: Brian Bix, A New Blackstone, JOTWELL (January 16, 2018) (reviewing William Blackstone, Commentaries on the Laws of England (Ruth Paley & Wilfrid Prest eds., Oxford University Press, 2016)), https://juris.jotwell.com/a-new-blackstone/.

The Return of Habits

Sylvie Delacroix, Law and Habits, 37 Oxford J. of Legal Stud. 660 (2017), available at SSRN.

The article begins by considering two theses from H.L.A Hart: thesis 1) a legal system can be based on official acceptance alone; thesis 2) such a system is particularly conducive to a society that is deplorably sheeplike. The author argues that (2) is correct but (1) is unhelpful or wrong. Hart spells out the sheeplike tendency when he speaks of ‘an unreflecting inherited or traditional attitude, or the mere wish to do as others do.’ The author wants to interrogate the idea of “acceptance”, and to switch the focus from social practices to the habits (patterns of repeated behaviour) that underpin the practices. Hart, it is said, sought to bridge the gap between habits as a social fact and law as social rules, by the concept of acceptance.

The author states that an “emphasis on the necessity to grow out of the habitual through critical reasoning translates a key assumption that structures all non-naturalist accounts of ethical agency: there is a fundamental discontinuity between the natural and the ethical.” She defends a type of moral naturalism that gives a central place to habit. For, quoting Hans Fink, “nature is never mere nature.” There follows an interesting account of the position of habits (or social facts) in the philosophy of thinkers such as Railton, McDowell and Leiter. In short, the account “highlight[s] the extent to which one’s understanding of habit reflects one’s meta-ethical understanding of agency.” For example, if one’s notion of autonomy requires “transcending one’s causal environment,” then habits “belong firmly to the province of sociology.” On the other hand, a naturalist interpretation of human agency will regard habits not only as conditioning but as enabling “normative choices.” Hart himself maintained an “agnostic meta-ethical position” in which he utilized habits only as a means of more clearly opposing them to rule-governed practices.

Two strategies were open to Hart: the first, a Wittgensteinian approach, which seeks to demonstrate that rule-following’s bedrock is “simply what we do.” The second is a Weberian approach which conjectures a continuum from usage, custom, convention and finally legal order (which may then in turn lead to new habits and custom formation). This two-way relationship of law and habit is then subjected to an enlightening analysis in the article’s middle section.

The general question of habits is important also in relation to Raz’s service conception of authority. Where the law successfully claims authority, it gives us reasons for action that displace a range of dependent reasons and therefore simplifies our practical reasoning. But this tendency of the law leads to a situation in which it is the law that forms the basis of habit, allowing us precisely to avoid reasoning, and act out of habit: we become like sheep. Thus ever fewer people will maintain that critical standpoint toward the law that is necessary for it to retain its authority: the sense that the law does indeed better enable us to comply with demands of right reason.

Returning to Hart, the article’s final conclusion is that “a theory of law that dismisses the importance of habits ends up with a poorer concept of ethical agency and a concomitantly truncated account of legal normativity.”

Cite as: Sean Coyle, The Return of Habits, JOTWELL (December 18, 2017) (reviewing Sylvie Delacroix, Law and Habits, 37 Oxford J. of Legal Stud. 660 (2017), available at SSRN), https://juris.jotwell.com/the-return-of-habits/.

Chevron’s Real Impact

Kent Barnett and Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017).

Empirical studies are often regarded as having less cachet than theory, and the circuit courts certainly have less cachet than the Supreme Court, so an empirical study of the circuit courts might be expected to rank somewhat low in the academic pecking order. But this article belongs at the top. A survey and analysis of all the federal Court of Appeals decisions from 2003 to 2013 that refer to the Chevron doctrine – some 2,272 of them – it reveals the actual operation and significance of this most famous of modern administrative law decisions. The Supreme Court invokes Chevron fairly regularly, of course, but often for the purpose of modifying it. In any case, Supreme Court decisions tend to be so politically charged that they frequently seem sui generis, a characteristic that provided the Court itself, in King v. Burwell, with still one more basis for modifying Chevron doctrine. It is in the circuit courts that the quotidian work of administrative law is carried out, and that is the pudding where the proof of Chevron‘s real impact can be found.

The most basic conclusion that Professors Barnett and Walker reach is that Chevron makes a difference. Contrary to prior empirical studies of Chevron‘s impact in the Supreme Court (“Chevron Supreme,” as the authors call it, since wordplay with the decision’s name is difficult to resist), they find that the win rate for the agencies in a circuit court (“Chevron Regular”) is substantially higher when the court invokes the Chevron doctrine. At 77%, it is fully 20% higher than the win rate when the court invokes Skidmore. To be sure, this is hardly a surprising conclusion, and thus lacks the counter-intuitive allure that some of the best empirical studies offer. But it is a conclusion reached only after a massive amount of careful effort and it represents an important contribution to our knowledge about Chevron’s real impact.

Moreover, Professors Barnett and Walker go beyond this basic conclusion to ask a number of important and intriguing questions about the pattern of the decisions. Distinguishing between cases decided at Chevron step one and step two, they find that when the case is decided at step one, the agency wins at a much lower rate than at step two, but nonetheless in a respectable 39% of the decisions, essentially the same as its win rate when the court employs a de novo standard. This suggests, although it does not prove, that Chevron‘s two-step formulation is more coherent and more principled that its critics claim. Counting against the coherence of Chevron, however (and the authors are admirably neutral in reaching and reporting their conclusions) is the differential treatment of the doctrine by the circuit courts, something that only a study of this sort could reveal. In cases where the court invoked Chevron, the agency won 83% of the time in the First Circuit, but only 66% of the time in the Ninth, a startling differential. This variance might be the result of applying Chevron at different rates, and here too there are dramatic differences, from 89% of the cases in the D.C. Circuit where the doctrine was at issue to 61% in the Sixth Circuit. It might be imagined, by proponents of the doctrine, that these two variables would balance out, but that is not the case. Constructing a composite score of three different measurements (win rates for agencies, frequency with which Chevron is applied, and win rate when Chevron is applied), the authors found that the First Circuit scored 8.38 on a ten-point scale while the Ninth Circuit scored 6.85.

There are a number of other intriguing distinctions in the pattern of decisions that Professors Barnett and Walker are able to derive from their data. When the composite score for subject matter and particular agencies are computed, equally dramatic variations appear. The score, and thus the impact of the Chevron doctrine, is highest in the field of telecommunications (8.67), and also high in education and entitlement programs (8.15 and 8.14). It is lowest for civil rights (5.99) and similarly low in housing and prison cases (6.04 and 6.64). Agencies that receive high levels of deference include the ICC (9.38), the FCC (8.67) and the NLRB (8.26); those that fare worst are the EEOC (5.08), HUD (5.19), the FTC (6.74) and the Bureau of Prisons (6.79). It is difficult to determine whether these variations reveal that the Chevron doctrine operates in a coherent fashion; that would depend on the wording of the authorizing statutes and perhaps that level of expertise that the authorization demands. This study cannot answer those questions, as the authors readily acknowledge, but it provides a framework by which the answers can be explored in future work.

Chevron, the insignia of modern administrative law, has fueled reconsideration of the relationship of Congress, the executive and the judiciary. The actual impact of the decision, however, has often been the subject of crude generalizations. By distilling the results of the circuit court decisions that invoke this doctrine, Professors Barnett and Walker provide a more refined account of the doctrine’s development, and have thus performed a valuable service to the entire field of administrative law.

Cite as: Edward Rubin, Chevron’s Real Impact, JOTWELL (November 15, 2017) (reviewing Kent Barnett and Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017)), https://juris.jotwell.com/chevrons-real-impact/.

Law as a Social Artifact

Luka Burazin, Can There be an Artifact Theory of Law?, 29 Ratio Juris 385 (2016), available at SSRN.

It seems clear that, on any plausible general theory of law, the institutions and content of law are manufactured by human beings for the purpose of regulating human behavior and are, thus, properly understood as social artifacts. Positivism, of course, is committed to the idea that the existence and content of law owes entirely to human social activity. But it is not unreasonable to think that law is an artifact on even the strongest natural law view. According to this view, the law consists of those properly enacted norms that conform to objective moral requirements. Although there are, thus, necessary moral constraints on what counts as law, it nonetheless seems reasonable to characterize law, on this view, as an artifact. The construction and operation of more familiar concrete artifacts, such as clocks, are constrained by laws of physics yet are paradigmatically artifacts; the situation seems not much different, from the standpoint of legal theory, with socially constructed law that is constrained by moral norms.

Despite its conspicuous theoretical significance, the artifactual nature of law has not, until comparatively recently, received a great deal of attention from legal theorists. In Can There be an Artifact Theory of Law, Luka Burazin sets out to remedy this omission by giving a brief outline of an artifact theory of law. Burazin attempts to identify the implications of the claim that law is an artifact, as well as sketch what an adequate “artifact theory of law” might look like. Burazin’s analysis in this excellent paper is concerned only with law qua legal system (as opposed to law qua norm) presumably because the normative output of an institutional artifact, like a legal system, must also be artifacts.

On Burazin’s view, the nature of social artifacts, unlike the nature of natural occurring objects, is determined by the intentional states of certain persons who can be thought of as “authors,” which also determine the content of the corresponding concepts. Burazin’s insightful analysis incorporates Risto Hilpinen’s explication of the concept of an artifact, which Hilpinen defines as “an object that has been intentionally made or produced for a certain purpose.”1

Accordingly, an artifact must, on this definition, have some kind of characteristic use. Insofar as a legal system is an artifact, and insofar as every artifact has a purpose that depends on human intentional states, every legal system has a purpose that depends on the collective intentional states of those who create and sustain its existence through their lawmaking and adjudicative activities.

A legal system is, according to Burazin’s artifact theory of law, “Created by authors who have a particular intention to create the institutional artifact ‘legal system,’ based on the author’s substantive and substantively correct concept of what the legal system is, under the condition that this intention be largely successfully realized.” (P. 397.) As an abstract institutional object, the existence of a legal system requires the collective recognition of some social group. On a positivism view, the “authors” of the legal system are officials who “recognize” the legal system by practicing the rule of recognition. But citizens also play a role, albeit less direct, in providing the requisite collective recognition: what is required of citizens, on a Hartian view, is that their behavior generally conforms to the rules validated by the conventional rule of recognition.

Here it is important to note that, on an artifact theory of law, the set of “authors” of the legal system will change over time as one set of officials and citizens are replaced by another set in a stable legal system. Unlike a light bulb, which was invented by one determinate author, a legal system is sustained by a set of individuals which changes over time; the sustained existence of a legal system is thus determined by the same factors that determine its creation. Indeed, one might, without much distortion, think of the existence of a legal system as sustained over time by exactly the same activities that are thought to create it. Creation and sustainment are two sides of the same coin, on an artifact theory of law.

One might think that legal systems can arise without being intentionally created, but Burazin correctly rejects this possibility: “Since legal systems are undoubtedly highly complex institutional artifacts, it seems strange to claim that such complex entities could emerge (wholly) unintentionally, as is sometimes the case with ordinary artifacts (e.g., a fortuitously created medicine).” (P. 399.)

It is worth noting that Burazin’s essay provides just a sketch of an artifact theory that would need to be fleshed out in considerably more detail to be fully articulated, but the importance of this project should be quite clear. If law is, by nature, an artifact, then a conceptual theory of law cannot be successful without including the appropriate elements of a plausible theory of artifacts. Just as the nature of a gun cannot be fully explained without explicitly recognizing that it is an artifact, the nature of a legal system cannot be fully explained without explicitly recognizing that it is an artifact. The explication of a legal system’s artifactuality will, of course, be more complicated and abstract than the explication of a gun’s artifactuality because a legal system, unlike a gun, is an abstract institutional object that persists over time through the same activities that explain its coming into existence in the first place.

  1. Risto Hilpinen, “Artifacts,” Stanford Encyclopedia of Philosophy (Winter edn., 2011). []
Cite as: Kenneth Himma, Law as a Social Artifact, JOTWELL (October 6, 2017) (reviewing Luka Burazin, Can There be an Artifact Theory of Law?, 29 Ratio Juris 385 (2016), available at SSRN), https://juris.jotwell.com/law-as-a-social-artifact/.

The Ends of Jurisprudence: A Guide to the Perplexed

David Plunkett and Scott Shapiro, Law, Morality, and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry, 127 Ethics (forthcoming, 2017), available at SSRN.

This article is a guide to the perplexed about general jurisprudence. Many people assume that general jurisprudence is either entirely devoted to answering the question, “What is the nature of law?” or at least centered on that question. That is, they think that general jurisprudence is devoted to, or centered on, a metaphysical question. The most famous recent debate about this metaphysical question is the Hart-Dworkin debate, which many legal theorists find frustrating, sterile, or deeply confused (at least in its presuppositions). As a consequence, there is a tendency among some to abandon this debate, turning to matters they regard as outside of general jurisprudence. Plunkett and Shapiro provide a more capacious understanding of the enterprise, according to which general jurisprudence, which concerns law in general, is not limited to, and may not be centered on, metaphysics. From their elegant, precise, clear and compelling account, it follows that those who think they should abandon general jurisprudence may not have reason to do so, and those who think they are abandoning general jurisprudence might not be doing so. For example, theorists who (a) think it is a universal truth about law that it has legislation and (b) give an account of the meaning of statutes are actually engaged in general jurisprudence.

Plunkett and Shapiro’s thesis is that general jurisprudence comprises investigation in a number of philosophical fields – metaphysics, of course, but also philosophy of mind, philosophy of language, and epistemology. These investigations are unified by a comprehensive explanatory project. That project is to show how, in the words of the authors, universal “legal thought, talk, and reality fit into [the wider] reality.” A theorist may enter this project at any point, may do only some of this work, but it remains true that this theorist is engaged in general jurisprudence.

The field of ethics is conspicuously absent from their list, though the authors appreciate that inquiries in this field are relevant for certain positions adopted within general jurisprudence.

Initially, I underestimated the importance and implications of their thesis. The reader should not make the same mistake. Plunkett and Shapiro’s picture of general jurisprudence has substantive implications for some familiar meta-jurisprudential positions. I will describe two of these implications: one for Hershovitz, one for Dworkin.

Hershovitz is one who thinks the Hart-Dworkin debate is sterile and deeply confused.1 As Plunkett and Shapiro point out, Hershovitz is arguing against specific assumptions underlying this debate, rather than the enterprise of general jurisprudence itself. Indeed, he is engaging in this enterprise, proffering a theory of what certain legal talk is about, and a theory about how legal obligations fit into reality. What is worth noting is that Hershovitz’s recommendation that general jurisprudence should orient itself to exploring the moral consequences of our legal practices doesn’t exclude investigations into metaphysics, epistemology, and the rest. Indeed, they become relevant and perhaps pressing. His arguments presuppose that there is a domain of legal practices. One can ask interesting metaphysical questions about legal practices that become questions in general jurisprudence, given Hershovitz’s suggestion that legal obligations are moral obligations generated by legal practices. One can also raise jurisprudential questions in philosophy of mind and epistemology about the content of legal practices and the conditions of our knowledge of them.

Dworkin famously denied that there is a sharp distinction between engaging in general jurisprudence and in substantive legal argument (or political argument).2 This denial turns out to be a mistake on Plunkett and Shapiro’s characterization of general jurisprudence. Since general jurisprudence has a different aim and different “success conditions” than the other projects, it is a distinct inquiry (albeit one that, perhaps, might turn out to be a necessary prolegomena to the other projects).

Plunkett and Shapiro offer a corrective of other mistakes commonly made about general jurisprudence. For example, it is often assumed that the Hart-Dworkin debate, or more broadly, the positivism-antipositivism debate, is about the nature of law. Plunkett and Shapiro challenge this characterization; the debate at its core is about what grounds law, which is a different metaphysical question. (This grounding relation is alleged to be a constitutive relation between legal facts and more metaphysically basic facts, in virtue of which the legal facts obtain.)

There is much more. Plunkett and Shapiro situate some current philosophical accounts (Raz’s, metalegal expressivism) in helpful ways and sketch some broad philosophical strategies, in the hope that this will facilitate progress in general jurisprudence. Anyone engaged in that enterprise will only benefit from the discussion and categorizations offered.

The lesson in all of this is that any reports of the death of general jurisprudence are, to paraphrase Mark Twain, greatly exaggerated.

  1. Scott Hershovitz, The End of Jurisprudence, 124 Yale L.J. 1160 (2015). See the jot on this article by Michael Green, The New Eliminativism, JOTWELL (January 18, 2016), https://juris.jotwell.com/the-new-eliminativism. []
  2. Ronald Dworkin, Law’s Empire (1986). See also Ronald Dworkin, Justice for Hedgehogs (2011). []
Cite as: Barbara Levenbook, The Ends of Jurisprudence: A Guide to the Perplexed, JOTWELL (September 8, 2017) (reviewing David Plunkett and Scott Shapiro, Law, Morality, and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry, 127 Ethics (forthcoming, 2017), available at SSRN), https://juris.jotwell.com/the-ends-of-jurisprudence-a-guide-to-the-perplexed/.

Faulty Knowledge About Law

Arden Rowell, Law, Belief, and Aspiration (2017), available at SSRN.

Theories about law frequently assume that people know what the law is. Theoretical accounts of the rule of law by Lon Fuller, Joseph Raz, and Friedrich Hayek, for example, emphasize that law must be prospective, clear, public, and stable, because it must be capable of guiding behavior.1 The assumption that people know what law is shows up in H.L.A. Hart’s assertion that a necessary condition for law is that valid “rules of behavior” promulgated by the legal system “must be generally obeyed.”2 This assumption is also manifested in theoretical claims that criminal laws deter crime and tort liability creates incentives for behavior. These and other discussions about the supposed consequences of law often take for granted that people have a correct understanding of what law requires.

Professor Arden Rowell’s recent article, “Law, Belief, and Aspiration,” casts doubt on this assumption. This empirical study, though not itself a work in jurisprudence, has significant theoretical implications and should be read by jurisprudents.

Rowell conducted a survey of 869 citizens across 6 states on 10 legal topics (employment law, criminal law, property, taxes, health, transportation, traffic regulations, gun control, state constitutional law, and torts). Most of the questions are basic: Does your state have an income tax? Is texting while driving legally prohibited? Does your state have the death penalty? May employers fire employees at will (unless contractually prohibited)? Does the state cap pain and suffering awards in medical malpractice? Are people required to report to police the commission of a felony by someone? And so forth. (P. 12.) Survey questions inquired about people’s knowledge of law as well as their normative desires for the law. This enabled Rowell to compare what the law is, what people believe the law is, and what people want the law to be.

Many of her findings are surprising. Correct answers about the law ranged from a low of 47% (on the legal obligation to report felonies) to a high of 83% (on state taxes). Given the unpleasant annual ritual of tax filing, it makes sense that a significant majority of people would correctly know whether their state imposes taxes (though one must wonder about the 17% who got it wrong). But significant percentages of people were wrong on the legal requirement to report felonies (53% incorrect), on damage caps (45.5% incorrect), on at will employment (38% incorrect), on the whether the constitution includes a right to a clean environment (37.2% incorrect). (P. 15.) Over twenty percent of respondents were wrong about whether the state has a death penalty and over whether texting while driving is prohibited.

Overall, people were wrong about the law one third of the time, though accuracy varied by topic and by state. For example, almost two-thirds of Texans and Montanans, incorrectly believed that texting while driving was legally prohibited in their state. Older people and people with higher levels of education tended to be better informed about the law. (Pp. 16-17.)

Two findings are particularly striking. First, contrary to what one might assume, there was no relationship between accuracy and perceived importance of the topic. “Whatever else is driving people’s knowledge about law, it is not being significantly driven by the level of importance that they themselves attach to a topic,” Rowell concludes. (P. 17.)

Second, “there is a significant relationship between what people believe the law to be, and what they believe it should be.” (P. 19.) (Emphasis added.) Respondents tended to believe the law matches their normative preferences, although this was not true about one-third of the time. (Pp. 26-28.) On four of the ten topics, their normative preference for what the law should be was a better predictor of their belief about law than what the law actually is. (Pp. 19-21.) As Rowell indicates, the causal arrow behind this association is not clear—whether normative preferences influence beliefs about law, or vice versa.

This is not the first study to demonstrate that significant numbers of people are misinformed about law. Pauline Kim completed two studies showing that workers across several states misunderstood basic rules governing employment relationships, overestimating the extent of job protection provided by law.3 John Darley, Kevin Carlsmith, and Paul Robinson found that on three out of four criminal law topics studied people were unaware of the applicable legal regime.4 Rowell’s study adds a broader set of questions across multiple areas of law, examined in a larger number of states.

She briefly raises a several intriguing theoretical implications of her findings. Rowell suggests, for example, that the key to deterrence is not what law actually is, but what people believe law is, so targeting and changing beliefs is more important than actually changing the law. (P. 36.) She raises doubts about discussions of the expressive function of law, which often fail to recognize that beliefs about law and aspirations for law regularly diverge from what law is. And Rowell suggests that when people believe law already matches what they think it should be, they will not engage in efforts to reform the law when this is not true simply because they do not realize it. (Pp. 33-36.) (Remember, perceived importance is not associated with greater knowledge.)

Her findings raise other potentially important implications for legal theory. Take the rule of law. The rule of law enhances individual autonomy and liberty, it is often said, because people are apprised in advance of the potential legal implications of their actions. By providing notice, law enhances predictability and planning. People are free to do whatever the law does not explicitly prohibit. These assertions are central to rule of law arguments by Hayek and Fuller. But what if significant numbers of people systematically misapprehend the law? What if certain subpopulations—better educated, older—know more about the law than others?

Or consider Hart’s assertion that a necessary condition for the existence of a legal system is primary rules “must be generally obeyed.” It cannot be said, however, that people “obey” laws they do not know. This study suggests perhaps that Hart stated this condition too demandingly—perhaps a legal system may exist as long as the primary rules are “not generally contravened” (knowingly or not).

Assertions by legal theorists that law provides notice and predictability or that law is obeyed by the populace have long been questionable for the plain reason that laws often are highly complex and couched in technical legal language impenetrable to lay people. Examine any statute at random and one would find not only that its meaning takes effort and expertise to discern, but also that its implications depend on other related statutes and doctrines, and draws on legal terminology not explained in the text itself. (Never mind that common law doctrines are not set forth in a single authoritative text, though pattern jury instructions are a good place to start.)

One might respond that legal notice and predictability still exist thanks to the assistance of lawyers, but this raises additional questions about affordable access to lawyers and whether people regularly consult lawyers ex ante.

Or legal theorists might instead rethink the assumed relationship between law and the populace. Perhaps the crucial factor in the association between law and social conduct is not that people actually know what the law is, but whether the law matches people’s intuitions about what law is. When they do match, “knowledge about” law or “compliance with” law is not literally but functionally correct—such that the operative factor is not the causal influence of law on social behavior but the correspondence between law and social beliefs about law.

Rowell’s study alone is not enough to indicate that these theories must be modified. However, in conjunction with other similar findings, it does indicate that more thought must be put into aspects of these theories that largely are taken-for-granted by legal theorists.

Rowell’s study also raises a more general question about whether legal theorists must (or at least should) consult relevant empirical studies when the theories they construct include assertions about what people know or think about law, how law affects behavior, what are the functions of law, and so on. This would seem obvious, but it is not currently the standard practice of many legal theorists.

 

  1. See Brian Z. Tamanaha, On the Rule of Law 93 (2004). []
  2. H.L.A. Hart, The Concept of Law 113 (1961). []
  3. Pauline Kim, Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-Will World, 83 Cornell L. Rev. 105 (1998); Pauline Kim, Norms, Learning, and Law: Exploring the Influences on Workers’ Legal Knowledge, 1999 U. Ill. L. Rev. 447 (1999). []
  4. John M. Darley, Kevin M. Carlsmith, & Paul H. Robinson, The Ex Ante Function of the Criminal Law, 35 L. & Soc’y Rev. 165 (2001). []
Cite as: Brian Tamanaha, Faulty Knowledge About Law, JOTWELL (August 8, 2017) (reviewing Arden Rowell, Law, Belief, and Aspiration (2017), available at SSRN), https://juris.jotwell.com/faulty-knowledge-about-law/.

Was Foucault a Liberal and Should We Care?

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’.1 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.’2 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‘.3 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.

  1. ‘The Liberal Idea’, in Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 28 (1995). []
  2. ‘The Liberalism of Fear’, in Judith N. Shklar, Political Thought and Political Thinkers 15 (Stanley Hoffman ed., 1998). []
  3. Michel Foucault, Jonathan Simon & Stuart Elden, Danger, Crime and Rights: A Conversation between Michel Foucault and Jonathan Simon, 34 Theory, Culture & Soc’y 3, 21 (2017). []
Cite as: Martin Krygier, Was Foucault a Liberal and Should We Care?, JOTWELL (July 24, 2017) (reviewing Ben Golder, Foucault and the Politics of Rights (2015)), https://juris.jotwell.com/was-foucault-a-liberal-and-should-we-care/.