In this interesting and clearly argued article, Kimberley Brownlee investigates the extent to which the law can serve as a model of virtue. She rightly points out that many ethicists understand law deontologically, as a set of principles that determine rights and duties: in other words, that for law to embody a morality, this morality must be essentially law-like. The article observes that the law’s various concerns cannot be entirely reduced to deontology (P. 5), but there is in any case room for dissatisfaction with the idea that deontology and “virtue ethics” are opposing conceptions of morality. Aquinas, for example, devotes the entire secunda-secundae of the Summa Theologiae to a discussion of the virtues, but does not hesitate to identify duties to be performed (including the human being’s duties to God).
One interesting observation at the outset of the article is that the law “tends toward injustice.” This is a very arresting comment, and it is a shame that there is no discussion of it. For one thing, it runs contrary to the much-repeated idea of Lon Fuller that the law “works itself pure,” that is, tends toward justice over time, or to the classical common law philosophies of writers such as Hale or Coke, which regarded the law as the accumulation of reason. One could also point to the natural law content of positive law: the suppression and punishment of criminality, maintenance of the inner tranquility of the state, the restraint of fraud, sexual crimes and civil wrongs, regulation of contracts and so forth. In all such cases the tendency of the law seems to be toward justice rather than its contrary.
The article discusses five ways in which the law can model virtue, the most significant of which is that of the Virtuous Person, the person who is “a purported ideal of immutable, full, and perfect virtue.” (P. 6.) The discussion touches upon the “pluralism objection,” that if “morality is fundamentally pluralistic, then ‘full and perfect virtue’ is impossible.” (P. 7.) This rejects the classical Aristotelian doctrine of the unity of virtue (P. 6), that in order to possess one of the virtues, it is necessary to possess all of them. (N.B. this doctrine relates only to the so-called cardinal virtues.) Both Aristotle and Plato—and later Aquinas—regard virtues as mutually reinforcing, unlike the merely pleasurable interests of the masses which vie with and undo one another. The underlying principle, that the truth harmonizes with all data, whereas falsehoods clash and contradict one another, is not there defended by Aristotle, although a defense is available.
There are five ways in which the law can “model” virtue, of which I shall mention here only two: first at the level of specific laws and policies (e.g. “open-mindedness” in allowing individuals freely to choose and pursue their own ends), and secondly at the level of the law’s foundational structures. (Pp. 10-11.) Here there are two problems, the “poisoning problem” and the “emulation problem.” The poisoning problem is that the coercive properties of the law appear to model non virtuous modes of behavior: “The law necessarily calls on its members, as officials and citizens, to do things such as threaten people, attack people, make laws that harm people, lie to people, detain people, isolate people, charge people with offences, make judgments on people’s guilt, sentence people to be punished, impose punishments on people, deprive people of their resources, and perhaps, in extreme cases, incarcerate and possibly kill people.” (P. 15.) I did not entirely follow the reasoning here. Of this list, some—such as the punishment and incarceration of criminals—are not contrary to virtue, and others (such as determining guilt) are virtues (here the virtue of prudence). But it would be useful to have examples of other members of this list, such as occasions when the law requires one to lie. This latter Aquinas would regard as an unjust law to which one is bound in conscience to disobey, as being contrary to virtue. (and duty!)
The emulation problem is that if one acts virtuously for the sake of the law, one is not acting virtuously for the right reasons (and thus technically not acting virtuously); but if one acts for the right reasons, the law is not serving as a model of virtue. (P. 15.) It is probably true to say that certain branches of law fall foul of this objection. Where it acts successfully as a deterrent, the criminal law does not instill virtue into would-be criminals, but the majority of people do not need the deterrent and are thus unaffected by the law as far as virtue is concerned. But there are other areas of law where the law does appear to be a guide to virtue: tort law is one such example, since an ordinary lay person may wish to do the right thing but without knowing what the right thing is.
There are two respects in which the article could have gone further. In the first place, it could have considered the Thomist doctrine that the law seeks to bring people to virtue, but not all at once, and that the function of law is not to require the practice of all the virtues. Consequently, there is an important difference between the good citizen and the good person. (A good citizen pays her taxes even if resentfully, whereas a good person does so willingly.) In the second place, the article could have given a longer and systematic discussion of the law’s two most important virtues: justice and prudence.
In a comment of this length it is impossible to recount and discuss many of the article’s arguments and analyses, and I would encourage anyone interested in jurisprudence to read the full article, and in doing so gain a sense of its many virtues.
A question seldom asked is what actual legal knowledge legal theorists require in order to theorize about law, or, indeed, what areas of law they should visit in order to confirm their theories. Without wishing to suggest there might be a mandatory list of legal subjects, or a set of legal treatises that amount to required reading, my present purpose is to draw attention to an area of law and its treatment in a recent book by M. Sornarajah that would not obviously fall within the purview of legal theorists but which offers them particularly stimulating material.
The area of law is international law on foreign investment, an area Sornarajah is well positioned to write about, being commonly regarded as one of the founding expositors of a specialist sub-discipline of international law, whose rapid development in recent decades is a significant manifestation of the fragmentation of international law. This area of law, whose development has centred on the place and role allowed to arbitration on international investment treaties, accordingly provides an extraordinarily accessible set of data regarding the creation, recognition, and development of law.
Sornarajah’s principal thesis in writing this book is itself a theoretical one. From a detailed examination of the developments of the law over a period of twenty-five years, he aims to provide an explanation of change that is applicable more widely to international law, and addresses the (undesirable) phenomenon of fragmentation. (P. 8.) His explanation involves the ideological capture of this area of law, amounting to the exclusive promotion of partisan interests, in turn followed by resistance to the unjust condition of the law, holding out the prospect of change towards a more just condition.
The ideology capturing the law was neoliberalism (Pp. 10-15, 43-45, 62-63), and the partisan interests it favoured belonged to multinational corporations at the expense of developing countries. (Pp. 21, 27, 330, 398, 407.) The legal tactics employed to this end are charted meticulously by Sornarajah. They are founded on an interpretive move which allowed investment treaties to be taken beyond the consent of the parties to be serving an overriding interest of investment protection (Pp. 136-43), reaching an “acme of aberrations” (Pp. 168-73) when financial instruments involving government junk bonds acquired in foreign secondary markets were regarded as protected investments under a treaty contemplating investment in the party country. Sornarajah points to the unfounded “extreme adventurism” of this interpretive move: “It is not possible to enter the state as an investor through obligations or economic rights such as securities sold on foreign stock markets.” (P. 171.) The tactics extend to innovative uses of devices to consolidate neoliberal gains in the face of emerging opposition, such as the fair and equitable standard (Ch. 5) and the proportionality principle. (Ch. 7.)
Resistance occurred not simply from the affected states (Pp. 5-6, 66-67, 300) but also by dissident arbitrators (Pp. 5, 66, 168, 186, 399) and some academic commentators (Pp. 29, 301) who were alarmed by the transformations the area of law had undergone. The process of change displayed in the more recent approach to “balanced treaties” (P. 5) is currently ongoing. It is a process that is fiercely resisted by the forces of neoliberalism (Pp. 67-68, 417-18), resulting in a “contest between norms” (Pp. 69, 399-404) and a clash between the forces championing them. (P. 7) However, the very existence of conflict and efforts at accommodation are regarded as a manifestation of change, change from the absolute priority accorded to foreign investment. (Pp. 68, 418.)
Ultimately, Sornarajah looks towards a realignment of the field with the general principles of international law. (P. 8.) To some extent this is sought to ensure that interests other than those of investment are not excluded from the picture. (Pp. 8, 29, 76, 303, 418.) There is also a suggestion that a function of international law in “securing [wider] interests of poverty reduction, environmental protection and the promotion of human rights” aligns it with “its moorings in notions of justice.” (P. 29.) The author certainly considers interests precluded from the protection of the law by hegemonic power as being supportable by claims of justice, and that the exclusive concentration on the interests of investment is insupportable as clearly unjust—without having to invoke and defend a particular conception or specific principles of justice. (Pp. 22, 71, 417.)
Indeed, there is much to suggest that Sornarajah does not consider his extensive case study to be a celebration of the triumph of justice. Despite proposing a general theory of change for international law based on his study (involving hegemonic power, resistance including an appeal to justice, and change through accommodation or replacement of norms) (P. 420), the driving force which promotes and limits the detailed changes that occur is more often identified as a struggle between competing interests. (Pp. 1, 5, 7-8, 392-93, 418.) And in that struggle, control of the law is paramount. (Pp. 20-21, 26-27, 68-69, 398-99.)
Sornarajah reserves his harshest criticism for the legal officials (arbitrators and lawyers), abetted by academics (Pp. 29, 58-59), who have worked to allow control to be taken by the wrong side. He denounces these arbitrators for “ignor[ing] the higher values of the profession such as neutrality and fidelity to the trust placed in them by the parties.” (P. 61.) As for the large law firms, their motivation was “enlarging the market for their services.” (P. 65.) Because of the economic gains of arbitrators and lawyers (P. 65), they remain “dominant forces that will resist change,” given the huge stakes “in terms of [personal] monetary loss” that change would bring about. (P. 399.) Significantly, he applauds the proposal to exclude or limit the involvement of large law firms. (P. 420.)
It would appear that the business of Judge & Co., excoriated by Bentham, can still be found flourishing. Of greater analytical interest is how the activities of these legal officials, portrayed in Sornarajah’s book, shed light on our understanding of the creation and recognition of law. It is difficult to find any evidence showing officials following a rule of recognition here. It is equally difficult to maintain that their internal attitude to the law is morally neutral or based upon a disinterested legal point of view. Rather it appears that an ideologically charged, or self-serving, attitude is essential. There is also clear evidence that in the period of greater conflict in this area of law, there was not a legal point of view to be found but whatever happened to be the point of view of the individual (or majority) arbitrator. (Pp. 62-63, 417.)
Another issue of wider theoretical appeal illuminated by the material in this book is that of the relationship between law and the interests of members of the community. The issue arises in a disagreement between Gerald Postema and Joseph Raz, which can be concisely represented as concerning whether social existence under law emerges as a harmonious order serving the common interests of members of society, or is founded on an imposed order irrespective of the dissonant interests of individual members of society. The material Sornarajah provides certainly speaks to imposition of law over dissonant interests, but it stimulates further theoretical reflection in two respects. First, on the nature of the capture of law by one side of the conflicting interests, and on the resistance by the other side that impacts upon the law, extending beyond a simple picture of the exclusionary authority of law. Secondly, regarding the possibility of law being in a state of conflict itself.
Sornarajah’s book is a masterful account of an extraordinary, relatively short, period of dynamic change in the international law on foreign investment. It should obviously excite the interest and commitment of those working in the field. Perhaps, less obviously, it should equally demand the attention of those with interests outside of that field, both practical and theoretical, within international law and law more generally.
Paul Gowder’s article Equal Law in an Unequal World is an exceptionally fine piece of scholarship, and a terrific addition to the growing philosophical and jurisprudential literature on the Rule of Law. It sets out to accomplish several tasks—and largely succeeds. The first and major goal of the piece is to introduce a novel conception of the Rule of Law that is grounded in the widely accepted norm that law must be general. This is a familiar understanding of the meaning of the “Rule of Law,” but Gowder gives it distinctively unfamiliar—but ultimately quite compelling—content. Any law, Gowder argues, drawing on an emergent moral-philosophical literature elucidating related concepts, to be “general” and therefore compatible with the Rule of Law, must be backed by public reasons that can be rationally understood by all citizens, but most important, by all citizens it directly targets. Those reasons, in turn, must be consistent with each such citizen’s basic equal worth and equality (among other requirements as well: the law must also be justified by reasons that are aimed at a sound public policy, and third, by reasons that reflect loosely the community’s self-conception and values). A law justified by reasons that can be understood by the law’s presumed targets only by first accepting the claim that they are inferior to others—such as a law requiring black citizens to sit in the rear of buses, or a vagrancy law forbidding both rich and poor from sleeping under bridges (etc.) in the face of widespread homelessness, or theft laws that forbid the theft of food, given the existence of severe poverty—therefore, violate the Rule of Law. These laws can only be understood by those whom they target as resting on or justified by reasons that in turn presuppose affective commitments of the lawgiver and of the community to the inferiority, or unacceptability, or indeed the contemptibility of black people, or the homeless, or the poor. Particularly for those who have no choice but to commit the prohibited act—such as homeless people who must after all sleep somewhere, or poor people who are hungry and must eat to survive—the laws prohibiting these acts cannot be understood in any way other than as resting on a claim that their very existence is offensive, or at best that their status is lower. This claim is in turn inconsistent with the generality required by the Rule of Law, when that generality is properly understood as requiring not any formal or linguistic property, but rather, a commitment to the general equal worth of all citizens. Therefore, Jim Crow laws, and literacy requirements for voting, but also quite ordinary laws prohibiting theft or vagrancy, are violations of the Rule of Law because in each case, they are premised on reasons that in turn rest on affective attitudes that presuppose the inferiority of the groups they target—and, thus, their lack of “generality.”
This is, Gowder shows, a far more ambitious and robust understanding of the “generality” required by the Rule of Law than the “formal” interpretation one more commonly finds at the heart of dominant interpretations of the Rule of Law and the Equal Protection Clause both—interpretations that typically require (at least in the legal literature) only that “likes be treated alike,” with no substantive reference to either substantive equality, or the equality of citizens. An interpretation of the Rule of Law that requires the latter, Gowder argues, rather than the former, is both more consistent with the history of the ideal itself (drawn from English legal history) and more consistent with the politically and morally ambitious goal of a substantively equal and fair society—a goal that is least arguably at the heart of this country’s reconstruction amendments, as well as our history of progressive politics.
The article’s second major goal is to put to rest progressive worries about the Rule of Law, and its purportedly inexorable connection to the protection of property and property rights, and, therefore, its antipathy for progressive causes, particularly the amelioration of wealth disparities. That worry, which has been a staple of left wing academic political and legal writing since Marx, but most recently voiced by Morty Horwitz, Gowder contends, is misplaced: the Rule of Law is a vehicle, not an obstacle, for progressive politics. Progressives, he argues, should “learn to love the Rule of Law.” The Rule of Law, he shows, understood as requiring generality in the sense he describes, is basically incompatible with a legal system that criminalizes, through laws against theft or vagrancy, poverty that renders compliance with these laws prohibitive or impossible. Therefore, a legal system that confers property rights—as legal systems typically do and should do—must ensure that all citizens have sufficient resources to comply with the laws of theft that give those property rights heft. The Rule of law then requires not just sufficient economic welfare rights so as to provide basic biological needs, but rather, sufficient welfare so as to ensure the capacity of all citizens to comply with (and to understand) fundamental laws—including whatever material resources are required to facilitate that compliance.
Third, Gowder wants to show that these minimal welfare rights are required by virtue of the Rule of Law—by legalism, in effect—rather than, or in addition to, whatever may be required of a decent society by distributive justice, or utilitarianism, or any particular constitutional scheme, or liberalism, or Rawls’ principles of justice, or Kantian morality (etc.). Although he doesn’t dwell on it as much as perhaps he should, this is an important contribution and ambition of the piece. It is the idea of law itself, Gowder contends, and not the idea of justice, or utility, or Kantian morality (etc.) that requires the provision of economic resources in any legal system that also confers property rights. Therefore, anyone (whether they be constitution drafters, or critics, or legislators, or academics) committed to the ideals embedded in the Rule of Law, whether or not they are committed to social justice, or Rawlsian liberalism, or Marxist egalitarianism, must be likewise committed to the eradication of poverty—at least to the degree required so as to render its property regime, and the laws that sustain it, compatible with Rule of Law principles. This is a very strong claim, not only for the strategic reason that it puts the burden on the shoulders of those committed to the Rule of Law to worry more about poverty than perhaps they have done to date. It also provides a much-needed first step toward the end of explicating the moral value of law itself, in a healthy and admirable direction. If Gowder is correct, then law is not only premised upon, for example, the moral value to all of physical security, as Hobbes posited. It is also premised upon the moral value of the equality of persons, including to some degree the amelioration of those material conditions that render some lives so radically unequal, or lesser. That connection—between core legalistic values and substantive equality—is both not at all obvious and, if sustainable, hugely important; it would impact, for example, not only how we theorize, but also how we teach, study, and practice law quite generally.
Finally, Gowder’s most ambitious goal in the piece, I think, although he doesn’t say it this way, is to reconfigure the moral grounds of property rights in liberal legal regimes. A property regime that is imposed by law, as opposed to one imposed in some other way, (by force or conquest) must itself meet moral conditions—and must do so regardless of its political commitment to constitutionalism, or to any other justificatory principles. A property regime imposed by law—through property rights protected by legal rule—to be general, and hence to be consistent with the Rule of Law, must ensure that all citizens have recourse to the material resources—the property—necessary to comply with all legal rules that protect property itself. Thus, laws against theft—which are essential to property regimes—violate the Rule of Law if they coexist with extreme poverty, no less than do segregation rules or literacy requirements for voting in the face of white supremacy: like the latter, the former can only be understood as resting on reasons that presuppose the inferiority or inconsequentiality of the group they target. This too is a vital finding. If protection of property is at the heart of liberal legal social orders, and if that protection is inconsistent with legalism itself without some provision for welfare rights, then the property regime, if structured by law, is not only not a threat to those rights but virtually requires them. This is an original and significant understanding, then, not only of the relation of the Rule of Law and welfare rights, but also of property itself, and its connection to the eradication of poverty.
Those I take it are the major objectives of Gowder’s piece. I think he is remarkably successful in making the case for each. I suspect this article, along with Gowder’s earlier and related work on the Rule of Law, will have a considerable impact, not only on Rule of Law Scholarship, but more broadly on jurisprudence and constitutional law scholarship as well. The thesis is novel and deep: the Rule of Law scholarship, with only a few exceptions, has dwelt on the purported procedural virtues of law, (Fullerian understandings of the requirements of generality, prospectivity and the like) on the requirements of formal equality (the like treatments of likes), the requirements of notice, and the idea that law bind the lawmaker as well as its subjects. Both Rule of Law devotees and Rule of Law critics have for the most part accepted these definitional limitations. Gowder has a genuinely novel argument and interpretation of the Rule of Law that opens up a very new area of inquiry: perhaps the Rule of Law, properly understood, requires much more. If so, then we need to re-think not only our commitment to, or criticisms of, the ideal itself, but also how we think about and how we teach law.
I have three reservations about the overall argument. First, I’m not convinced that Gowder has fully responded to the Marxist/Horwitzean complaint regarding the Rule of Law, for a number of reasons. First, to fully respond to this complaint I think requires an engagement with the intellectual history of the idea, and not just a possible theoretical reconstruction. It may well be possible to reconstruct the Rule of Law so as to require, rather than preclude, economic justice sort of rights, but that doesn’t respond to the complaint that the Rule of Law has historically been associated with property rights, and interpreted in ways hostile to social justice. Second, though, I’m not sure Gowder sees the strength of the Marxist/Horwitzean complaint that the Rule of Law is theoretically (and not simply historically) at odds with social justice sorts of concerns. Gowder’s response turns heavily on the insight that property law (and the theft prohibition at its core) requires the impossible of the very poor: just as vagrancy laws forbid the poor as well as the rich from sleeping under bridges, so anti-theft laws prohibit the hungry as well as the well fed from stealing food. They are then not “general” because they cannot be interpreted in a way that doesn’t presuppose the inferiority of the poor, the hungry, or the vagrant: they say to those targeted, “you can’t comply with these laws (because of your hunger/homelessness), but these laws are good laws required to maintain both property and public order, so you are just no good—we’d all be better off if you didn’t exist.” So, because they are not general in their impact, they violate the Rule of Law. Therefore, Gowder concludes, basically, the Rule of Law requires either that legal systems get rid of property rights—not a good idea—or that they get rid of the extreme poverty that leads to these dignity-denying interpretations.
Even if this is convincing, however, it doesn’t counter the Horwitzean claim that by virtue of the generality at its core, Rule of Law ideology (and Rule of Law adherents) are blind to the very real and the very particular misery in the midst of the sometimes wealthy and lawful societies in which the Rule of Law is regarded as key. One way to see this is by looking at Gowder’s interpretation of Anatole French’s complaint that “the law in its majesty forbids the rich as well as the poor from sleeping under bridges.” Gowder understands French as objecting to the law’s lack of generality (because the law as applied will prove fatal to the poor in ways he explicates). But one can as easily understand French as complaining in Horwitzean fashion about the law’s blindness to poverty, precisely because of its obsession with generality. “The law is so obsessed with generality, it doesn’t notice that some are differentially suffering.” If the latter is what the comment is expressing, then it isn’t cured by providing only the minimum legal entitlements that would render the poor able to sleep under bridges without violating the law—nor, though, would it be cured by providing the poor enough shelter that they wouldn’t have to resort to bridge-sleeping. The law might make such provisions—it might make sleeping under bridges legal, or provide shelters for homeless people—but still be overly obsessed with generality, and at the cost of attending to misery. This I take it is what Horwitz means when he complains that the Rule of Law seemingly forbids “benign” uses of power to eradicate poverty or subordination. Another way to see the problem is through a counterfactual: Assume that the legal system responds to Gowder’s argument, and changes the facts on the ground so that the poor are not forced to break the law when they sleep under bridges or steal bread (thus breaking theft laws). That still leaves quite a bit of poverty, or more simply a lot of misery. Can the law address that poverty, or misery, directly, by, for example, redistributing income from the rich toward the poor? Horwitz’s worry is that Rule of Law thinking and Rule of Law ideology has driven too many to the conclusion that it cannot: that the very idea of “law” puts burdens on progressive, redistributive understandings, of say, tort law, or contract law, or for that matter tax law, because “generality” forbids this kind of eyes-open, wide-awake differential treatment of rich and poor. Even if Gowder is right that the Rule of Law, best understood, stands as a challenge to the forms of extreme poverty that drives the hungry to steal or the poor to violate vagrancy laws, Horwitz may still be right that the same Rule of Law—the same over-idealization of the idea of generality—would stand as an obstacle rather than a facilitator of redistributive efforts, through the mechanisms of law, above this minimum.
My second objection is that I’m not sure why Gowder wants to insist that the heart of the Rule of Law, under his interpretation, is generality, in any form. This seems just odd. The sorts of values that he’s underscoring, and that he believes to be central to the Rule of Law, are equality, dignity, and equal worth. Laws that are justified by reasons that run afoul of those central values, he argues, are not general, and therefore they violate the Rule of Law. I don’t know that it makes sense, though, to ascribe these values to generality. Why not leave generality out of it? The Rule of Law, we might think, these days, requires that laws rest on reasons that in turn respect the equality, dignity, and equal worth of all citizens. I’m not sure that much is gained by claiming that there is some strong and almost logical connection between the idea of generality that has historically been at the heart of Rule of Law thinking, and these values. Maybe better to suggest that we need to turn a corner in Rule of Law jurisprudence, and move past the idea that it’s all (or only) about generality.
And third, and finally, I’m not sure who the audience for Gowder’s piece might be, and although sometimes there’s no need to specify, here there might be. Is it Rule of Law philosophers? Statesmen and legislators? Judges? Constitution drafters? Constitutional lawyers? He indicates throughout (but particularly and explicitly at the end of the piece) that he believes his argument should inform interpretation of the Equal Protection Clause of the Fourteenth Amendment. That suggests an audience: if Gowder is right, then his conception of the Rule of Law might in turn influence the path of constitutional law. Perhaps that connection should be made explicit, and the full legal argument for it provided. Otherwise, the piece still stands as an important contribution to an ongoing debate, and literature, among political philosophers and some legal theorists regarding the Rule of Law. But beyond the constitutional-interpretation payoff, it isn’t clear what of our current legal doctrine or doctrinal debates the argument should impact, and how. I can imagine all sorts of possibilities: it could affect, for example, international “Rule of Law” projects, or alternatively, it could affect, very generally but perhaps powerfully, how judges and legislators (and educators) think critically about ordinary domestic law—from tort to contract to property law. But it would be helpful if these implications could be drawn out. Perhaps that’s a larger and contemplated project.
This is very exciting work! Gowder has taken not just one—but several—stalled debates and given them new life: he’s given a fresh interpretation not only to the Rule of Law, but also of our stalemated debates over the role of welfare rights, positive rights, and economic and social justice, in liberal-legal and constitutional orders. His writing is stylistically almost flawless and he brings to the project a wide base of learning—sophistication both in the legal and philosophical materials. It is an excellent example of interdisciplinary work in law and philosophy that nicely illustrates the value of the genre. This is a worthy contribution to several related bodies of work as well, in constitutional law, public law theory, international human rights law, and jurisprudence. The implications of his argument, in other words, are broad as well as deep.
- Dan Priel, Holmes's 'Path of the Law' as Non-Analytic Jurisprudence, 35 Univ. Queensland L.J. 57 (2016), available at SSRN.
- Markus D. Dubber, New Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Critical Analysis of Law 1 (2015), available at SSRN.
Of late there has been a notable burst of attention to the interaction between history and legal theory generally, and historical jurisprudence specifically. This includes a symposium in the Virginia Law Review last year on Jurisprudence and (Its) History, and a forthcoming book, Law in Theory and Jurisprudence, both with contributions from prominent scholars. What makes this noteworthy is that decades ago historical jurisprudence itself was consigned to the dustbins of history. As Brian Bix declares in his leading Jurisprudence text, “historical jurisprudence has largely disappeared.”
Historical jurisprudence emerged in the nineteenth century in the influential writings of Friedrich von Savigny and Henry Maine. It revolved around the insight that law evolves over time in connection with surrounding social, cultural, economic, political, and technological influences. Law at any moment in any place is the cumulative product of the history of its society (including interaction with external influences). At the turn of the twentieth century, historical jurisprudence and legal positivism were the two main rival branches of jurisprudence, with natural law theory a distant third. Writing in 1906, prominent American jurist Melville Bigelow observed, “Two distinct schools have in succession held the field, more or less, of legal education in English and American law, the analytical of Bentham and Austin and the historical school.” Soon after Bigelow uttered these words, however, historical jurisprudence seemingly expired, not to be heard from again—until now. Dan Priel’s Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence and Markus Dubber’s New Historical Jurisprudence: Legal History as Critical Analysis of Law explicitly advocate a revival of historical jurisprudence.
Preil and Dubber’s respective visions of historical jurisprudence and their reasons for promoting it differ. Priel offers historical jurisprudence as a curative for the wrong turn taken by contemporary analytical jurisprudence. He writes, “The barrenness of conceptual jurisprudence has many sources, but one of them is its unselfconscious, untroubled pre-Darwinism, its continued search for explaining human practices in terms of unchanging, timeless essences.” (Priel, P. 18.) Framing Holmes’s essay as argument in historical jurisprudence, Priel presents an illuminating re-reading of Path of the Law. The three parts of essay, he suggests, can be understood in terms of Holmes’s three ages of law: beginning in primitive times as intuitive reflections of natural human responses to rights and wrongs, then becoming a technical system of artificial reason grounded in tradition, and finally in the modern age becoming a scientific mode of social engineering. When viewed within this historical framework, Priel shows that common debates over Holmes’s discussion of the “bad man,” though informative, largely miss the point. This demonstration supports his broader message that historical jurisprudence makes available insights about law that analytical jurisprudence overlooks or suppresses.
Dubber presents historical jurisprudence as a powerful (albeit neglected) critical method: “Historical analysis of law, in this light, appears as one mode of critical analysis among others, including, notably, comparative analysis of law, along with economic analysis of law, or philosophical or sociological or ethical analysis of law.” (Dubber, P. 2.) Historical jurisprudence adds a critical perspective in two ways lacking in other approaches, he explains. (Dubber, P. 14.) First, a genealogical inquiry exposes pivotal moments in the development of legal institutions and legal doctrines, shedding light on their origins and how they took their current shape. Second, historicizing legal institutions and doctrines—viewing them within their specific social historical context—exposes ideological and material influences on law and the interests it served. Both aspects of historical analysis reveal influences behind contemporary legal arrangements and shows that they are contingent. This in turn open a critical distance, facilitating the functional evaluation of law—does it work in ways that achieves our collective goals and serves our interests?—and normative evaluation of law—is it good and just?
Despite having these very different orientations, both articles pointedly identify with early figures in historical jurisprudence: Priel with Oliver Wendell Holmes and Dubber with Savigny. Neither Priel nor Dubber endorses the particular theories of these pioneers—rather what they emphasize is the theoretical perspective Holmes and Savigny brought to bear on law as an evolving social institution, and the potential of this perspective to enhance our understanding and normative evaluation of law. Another trait in common is Priel and Dubber link their respective analyses to the current revival, after its own lengthy dormancy, of history on a grand scale, both citing among other works David Armitage and Jo Guldi’s The Return of the Longue Duree.
It is too soon to tell whether the recent spate of work on historical jurisprudence is a temporary blip or the beginnings of a genuine revival. The odds are not in its favor. Though we do not know what led to the original demise of historical jurisprudence, the fact that it fell away is a warning. One factor that likely contributed is the sheer difficulty of combining rich historical knowledge with sophisticated theory. The rare self-identified historical jurisprudents in modern times—notably Harold Berman and Peter Stein—are scholars with immense historical learning, as were Savigny and Maine. Mere mortals like the rest of us are unlikely to match their standards. A better way forward, I suggest, is to aim lower than grand narratives. The core insight of historical jurisprudence is law evolves in connection with surrounding social forces. This can be explored in innumerable contexts at scales small and large. One might even say that a lot of work along these lines is already being done, though it is not recognized as historical jurisprudence because everyone thinks, as is often repeated, this theoretical perspective on law died a century ago. Priel and Dubber make strong cases in their essays that there is much to gain by a return to historical jurisprudence. We may be witnessing its resurrection.
Dan Priel, Holmes's 'Path of the Law' as Non-Analytic Jurisprudence, 35 Univ. Queensland L.J. 57 (2016); Markus D. Dubber, New Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Critical Analysis of Law 1 (2015).
- Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015), available at SSRN.
- Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013), available at SSRN.
- John Gardner, The Evil of Privatization, Univ. of Oxford (2014), available at SSRN.
Privatization is a phenomenon that legal theorists and legal philosophers have begun to notice and to stake out positions on, for and against. Privatization is defined with reference to the (too?) familiar distinction between public and private actors. Privatization happens when a good, service, or a function that is typically supplied by state government, through the efforts of its officials and personnel, comes to be provided by private actors, perhaps still at state expense. In a pair of recent articles, Avihay Dorfman and Alon Harel have singled out private prisons and mercenary armies as paradigm examples of privatized public goods. Dorfman and Harel lament the fact that both advocates and opponents of privatization conceive the normative issue in purely “instrumentalist” terms. Which type of actor, public or private, can provide a given good or service more efficiently? Discussions therefore deal in contingencies, and at retail level. Dorfman and Harel argue in their 2013 article that this sort of approach fails to engage the intuitive sense that there is something intrinsically worrisome about privatization that pervades it wholesale. It isn’t centrally a question whether private prisons, say, are more or less likely to do the job efficiently (without compromising prisoner rights). It is rather a conceptual question whether there is a category of goods—“intrinsically public goods”—that can only be provided by the state, directly, by its officials; and, for instance, whether criminal punishment is among them. The answer to conceptual question, and the answer’s retail application might allow the possibility of privatization: in which case, but only then, they say, it is proper to go on to the contingent question about the relative efficiency of public and of private delivery.
John Gardner warns of the futility of erecting a “conceptual stop,” and distills from Dorfman and Harel a more promising proposal, in these terms:
when certain actions are performed by non-state operatives, such as the employees of private contractors, they are incapable of realizing some important value that they are capable of realizing when they are performed by state officials, and that the important value in question is not captured by those who merely compare “the quality of the execution of the enterprise” as between the two classes of potential executors. (P. 3.)
But for Gardner it is still unhelpful to frame the issue this way, for it is
too narrow. Why should one restrict oneself to comparing a public functionary with a private functionary, having already identified some function that each is expected to perform? Surely an instrumentalist is entitled to say that although a private company is better at detaining or deporting or delivering mail or babies than a public body, nevertheless there are other bad consequences of moving over to a system in which detaining and deporting and delivering are handed over to the private sector which are not reflected in the quality of the detaining or deporting or delivering itself? (P. 4.)
What Gardner is awake to is the threat of creeping . . . —what I would call creeping de-socialism.
For privatization is not only the transformation of detention centres, trains, tax inquiry offices, forestry operations, and so on – considered one service at a time. It is also the creeping transformation of our political system and public culture from one of democratic oversight to one of plutocratic oversight. (P. 4.)
By way of clarifying why privatization is equally a move away from public governance (of any kind) and toward governance by corporate behemoths, Gardner points out the
complementary and in some ways continuous … transfer of power away from relatively independent professionals such as teachers, lawyers, architects, and doctors, and into the hands of large corporations, with their elaborate schemes of patronage and discipline and bureaucratic repression, replacing professionalism with “customer service” and “performance management”…. The contemporary zeal for privatization is not a zeal for independent-minded people who are only erratically susceptible to official or corporate patronage…. The zeal of our age is a zeal for the ever-increasing transfer of power, including political power, to the money industry. (P. 15.)
The wholesale problem is therefore not a conceptual one, but a matter implicating both political philosophy and a normative theory of political institutions (what Jeremy Waldron calls “political political theory”). Framing the issue as narrowly as Dorfman and Harel do has consequences.
Indeed aren’t we already giving the plutocrats the edge even by assuming that a system of government should be judged as a provider of various severable services, or clusters of services, to those we are now supposed to describe as its “customers”? If so, then [Dorfman and Harel are] surreptitiously stacking the instrumentalist deck in favour of privatization … landing instrumentalists with a narrow service-provider picture of government which allows the private sector to compete on quality of service provision, when the real question is: Can they compete on quality of government itself? For government itself is what the private sector is gradually morphing into. (P. 5.)
Gardner’s remarks were made in Harel’s presence, at a workshop on his book, Why Law Matters? of which his and Dorfman’s analysis made up a chapter. The two respond accommodatingly in their 2015 article. (Oral argument can make a difference.) But Gardner’s closing remarks are, to me, a disappointment.
In politics and policy, by and large, what we should currently do depends on what we have most cause to fear, and how we can best undermine it in advance of its arrival. The problems of social organization are themselves contingent and contingency is therefore an unthreatening feature of the solutions. The question, then, is not that of how we should eternally be organized, of which public sector pursuits are “essentially” public and which are not, but, as Bentham saw most clearly, of how to protect ourselves most effectively against the most egregious forms of misrule. (Pp. 16-17.)
Not fifty years ago, John Rawls offered a detailed answer to the question, how we should be eternally organized, “we” meaning, we citizens of modern constitutional democracies. “Eternally” meaning, as a scheme of cooperation for mutual benefit, intended to stably reproduce itself from generation to generation. It has become fashionable to dismiss this as mere “ideal theory,” as Gardner seems to do while hurriedly invoking both Benthamite utilitarianism and Judith Shklar’s liberalism of fear. A careful (re-)reading of Rawls, particularly his Justice as Fairness: a Restatement (2001), offers a more coherent and practical way of thinking how to respond to “the coming plutocracy” (P. 9) that, in Rawls’s view, had long ago arrived and rested its boots on the common table. At least by 2001, Rawls was explicit that achieving justice as fairness requires democratic socialism or something very like it. It isn’t clear who Gardner has in mind, in admonishing “progressives who are bewitched by memories of a class war fought in a different era” (P. 16); but, which era is this? The war sounds awfully familiar.
Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015); Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013); John Gardner, The Evil of Privatization, Univ. of Oxford (2014).
What was Ronald Dworkin’s relationship to constitutional originalism? One might think that Dworkin rejected originalism. After all, he famously advocated a normative approach to constitutional interpretation—indeed, a “moral reading” of the Constitution—an approach seemingly at odds with the historical approach favored by originalists. Moreover, he was explicitly critical of appeals to the intentions of the framers; in particular, he was critical of appeals to the framers’ expected applications of constitutional provisions. The latter criticism figured centrally in his commentary on Justice Antonin Scalia’s Tanner Lectures, A Matter of Interpretation. But in Originalism and Constructive Interpretation, David Brink offers a novel interpretation of Dworkin, arguing that, in fact, Dworkin subscribed to a version of originalism. This originalism differs markedly, however, from Scalia’s form of originalism, as well as from other contemporary versions of originalism. For what Dworkin advocated was an originalism of principle.
Brink’s defense of his interpretation of Dworkin proceeds in roughly three stages. The first stage defends a view of the semantics of legal norms, claiming that Dworkin (who defended the determinacy of law) would need something like this view in order to respond successfully to H.L.A. Hart’s argument for legal indeterminacy in hard cases. Hart argued that legal rules are formulated in general terms, that general terms are “open textured” (with a core determinate meaning, and an indeterminate periphery), and that for this reason, hard cases are legally indeterminate: they must be decided by an exercise of judicial discretion. As Brink depicts Hart’s semantic assumptions, Hart assumes that the meaning of language in a legal norm is determinate as long as the meaning and extension of its terms is uncontroversial. Where there is disagreement about criteria for the application of a term or about its extension, the term’s meaning is indeterminate.
But this assumption, Brink argues, is problematic. “Disagreement does not imply indeterminacy. There can be a fact of the matter about the extension of a term even if there is disagreement about its criteria of application or its extension.” (P. 277.) As Brink explains, the fact that people may disagree about the criteria for toxicity or the extension of the word ‘toxin’ doesn’t show that there isn’t a fact of the matter about which substances are toxic. Similarly, the fact that libertarians and egalitarians disagree about the nature of justice doesn’t show that the criteria of application or extension of ‘justice’ is indeterminate. In fact, Brink argues, Hart’s semantic assumptions would have the result that when people apparently disagree in their criteria for application of a term, they actually mean different things, in which case they aren’t really disagreeing after all. “Disagreement is typically disagreement in belief about the extension of terms, which presupposes invariant meaning and extension.” (P. 178.) In contrast to Hart’s “descriptional” conception of meaning, Dworkin must, he thinks, be committed to a “referential” conception of meaning, according to which the meaning and extension of terms depends on substantive facts about the nature of the objects to which those terms refer. In the case of general terms that occur in legal norms, their extension is determined by “substantive facts about the nature of the institutions, processes, properties, and relations that these norms concern.” (P. 279.) Brink suggests that the contrast between views might also be expressed in terms of the contrast between concepts and properties, or in terms of the contrast between nominal (or dictionary type) definitions and “real definitions,” which attempt to characterize the essence of a kind or property.
Though not explicitly defended by Dworkin himself, this semantic view fits, Brink contends, with Dworkin’s claims about constitutional interpretation in Taking Rights Seriously, as well as with his critique of conventionalism in Law’s Empire. It aligns with Dworkin’s distinction between concepts and conceptions. People might share a concept, such as the concept justice, while holding different conceptions of justice. They might share, in the case of distributive justice, the concept of an “appropriate distribution of the benefits and burdens of social interaction and cooperation” and might agree on paradigmatic instances of justice and injustice, while holding competing conceptions of the extension of the concept (for example, libertarian and egalitarian). (P. 280.)
The second stage of Brink’s interpretation of Dworkin discusses his critique of originalist appeals to framers’ intentions. Such appeals have well known difficulties; Paul Brest discussed them extensively in “The Misguided Quest for the Original Understanding.” Dworkin stressed some of these difficulties as well, and this might lead one to conclude that he rejected originalism altogether. But Brink argues that “there is a form of originalism about constitutional interpretation with which Dworkin has reason to be sympathetic.” (P. 283.) To explain this form of originalism, Brink turns to Dworkin’s distinction between abstract and concrete (or specific) intent. Consider the interpretative constraint of fidelity to the framers’ intentions. What this constraint entails is uncertain until we know which of the framers’ intentions interpreters must be faithful to—their abstract or specific intent. Fidelity to specific intent would require legal interpreters to engage in historical-psychological investigation of the sort commonly associated with originalism. In contrast, fidelity is to abstract intent would require legal interpreters to engage in moral inquiry into “the nature and extension of the values and principles that the framers introduced.” (P. 283.)
Which controls, abstract or specific intent? Dworkin offered a counterfactual test that asks us to consider “what a framer would have supported if he thought he had to choose between his abstract and specific intent.” (P. 283.) Brink offers the following example. (Pp. 283-84.) Suppose that I intend to strictly regulate the manufacture and disposal of toxins. As it happens, I believe that only x is toxic, and so I aim only to strictly regulate x. But now suppose that I came to believe that y is also toxic. Would I give up my intent to regulate toxins or my intent to regulate x? Although Dworkin, Brink reports, seems to have thought that application of this counterfactual test may often yield indeterminate results, Brink himself thinks that it usually has a determinate answer, and one that treats abstract intent as controlling. He remarks, (Pp. 284-85)
one would have expected Dworkin to combine his critique of specific intent with a defense of abstract intent. For an originalism of abstract intent is very similar to Dworkin’s own claim that constitutional adjudication should be faithful to the normative concepts of the framers, rather than reproducing their normative conceptions. For the abstract intent of the framers is just the kind of normative constraint they sought to introduce, specified at the level of abstract concept, principle, or value, and their specific intentions are just their beliefs about the extension of that concept, which reflects a conception, whether explicit or implicit, about the nature and demands of that concept. But then Dworkin’s own conception of constitutional adjudication can be formulated as a form of originalism that insists on fidelity to abstract intent, rather than specific intent. This would be an originalism of principle.
Brink goes on to argue that an originalism based on fidelity to abstract intentions overcomes the problems Brest and Dworkin himself raised for appeal to framers’ intent.
The third stage of Brink’s defense of his interpretation of Dworkin discusses how Dworkin defends an originalism of principle in his comments on Scalia’s defense of textualism in A Matter of Interpretation. In the course of spelling out what he takes to be Dworkin’s view, Brink offers a map of the forms originalism can take. Whereas Scalia defends a form of textualism that accepts a public meaning view of constitutional language, along with a descriptional view of meaning, Dworkin defends a form of textualism that accepts public meaning but with a referential theory of meaning, as described earlier. (Alternatively, Brink suggests, Dworkin’s position might be described as accepting framers’ intent (rather than textualism) where the relevant intent is abstract intent.)
Brink reflects on the relationship between this originalism of principle and Dworkin’s account of constructive interpretation in Law’s Empire. “Insofar as constructive interpretation and law as integrity incorporate Dworkin’s earlier idea that interpretation of a legal provision should aim to articulate and apply the best conception of the concepts underlying the legal provision, they can reasonably claim to embody an originalism of principle of the sort I have argued that he elsewhere embraces.” (P. 289.) Yet, Brink notes an important difference between an originalism of principle and constructive interpretation. Suppose that a judge must decide a case according to one of two principles, P1 or P2. And suppose that P1, while less attractive than P2, better fits with precedent than P2. Whereas an originalism of principle would have the judge follow P2, constructive interpretation might lead her to follow P1. Thus, whereas constructive interpretation would have interpreters take account of both fit and justification (or “acceptability”), seeking a balance between them, an originalism of principle favors attending to justification. (P. 292.) Although both constructive interpretation and an originalism of principle aim to resolve cases by identifying and applying the best conception of the concepts expressed in a legal provision, an originalism of principle takes this to exhaust legal interpretation, whereas constructive interpretation treats it as one factor that must be considered along with fit. (P. 294.)
Brink offers an illuminating and compelling interpretation of Dworkin that aims to make coherent sense of his disparate commitments and of the differing ways in which he formulated his views over the years—in terms of principles v. rules, concepts v. conceptions, and abstract v. specific intent. He offers a persuasive account of the differing semantic assumptions of Hart and Dworkin and persuasively shows how Dworkin’s semantic views help to buttress his case against legal indeterminacy. He also offers persuasive considerations in favor of the dominance of abstract intent in constitutional interpretation.
Brink’s interpretation of Dworkin is perhaps best understood as itself an exercise in constructive interpretation, which seeks to fit and make sense of Dworkin’s diverse claims, while showing his views in their best light. As such, it is bound to spark both interpretive and substantive disagreement. For example, there is some textual evidence that supports interpreting Dworkin as accepting a speaker’s meaning view rather than a public meaning view of the constitutional text. And some will be more worried than Brink about how to reconcile Dworkin’s constructive interpretation and the originalism of principle that Brink attributes to him. Some might question whether an originalism of principle is really a form of originalism at all, since it seems distant from the historical approach associated with originalism; whether it is depends, of course, on what makes a theory of interpretation originalist, which is a matter of some dispute.
In any case, the interest of Brink’s article goes well beyond whether it is ultimately convincing as an interpretation of Dworkin. His discussion reveals the key decision points in formulating an originalist theory and gives us some important considerations in favor of formulating originalism in some ways rather than others. Moreover, whether or not an originalism of principle was Dworkin’s own view, and whether or not it is plausibly a form of originalism, it is a view that merits serious attention. Of course, Brink does not, in Originalism and Constructive Interpretation, undertake to defend an originalism of principle as a stand-alone view; such an undertaking is more properly the project of positive theory construction rather than the project of an interpretive article. But he has succeeded in showing why we should be keenly interested in such a theory.
Cite as: Connie Rosati, Brink on Dworkin’s Originalism
(November 18, 2016) (reviewing David O. Brink, Originalism and Constructive Interpretation
(Univ. of San Diego
Legal Studies Research Paper No. 14-167, 2014)), https://juris.jotwell.com/brink-on-dworkins-originalism/
Gillian K. Hadfield & Barry R. Weingast, Is Rule of Law an Equilibrium Without Private Ordering?
(USC L. Legal Stud.
Paper No. 16-18; Stan. L. & Econ. Olin
Working Paper No. 493, 2016), available at SSRN
In their new paper, Is Rule of Law an Equilibrium Without Private Ordering?, Gillian Hadfield and Barry Weingast make a provocative claim about the rule of law: that private ordering is what produces and sustains it, not the institutions of government. This is an important contribution to rule of law debates, which are so heavily focused on public institutions and public law while leaving the role of private ordering and private law undertheorized. But see Private Law and The Rule of Law (Lisa M. Austin & Dennis Klimchuk eds.).
Hadfield and Weingast are social scientists, not legal philosophers. However, their work engages with many different strands of theoretical literature on the rule of law, including analytic jurisprudence, and generates interesting conclusions for theorists and not just social scientists. The heart of their argument is the claim that “[m]ost regimes with fully centralized enforcement do not predictably achieve rule of law as a consequence of the structure of the regime itself.” If the rule of law is achieved, it is not because of institutions but because of “the peculiar, historical and contingent facts of individual identity or the balance of power.” (P. 25.) In other words, if we think that government is “a single body with the power to both make and enforce the law” then we should not expect the rule of law to emerge. (P. 27.) What is needed for the rule of law to reliably emerge, they argue, “is an essential role for private, decentralized, enforcement of law.” (P. 27.)
At first glance, this does not look very different from the claim that law relies upon the self-application of legal norms by individuals—a claim that can be found in the jurisprudential literature concerned with the guidance function of the rule of law. But Hadfield and Weingast want to point to the role of decentralized mechanisms for enforcing norms. And they claim that what is required for people to voluntarily decide to participate in helping to enforce the law is more demanding that what is required for people to voluntarily obey the law. (P. 21.)
In focusing on enforcement, what Hadfield and Weingast attempt to do is to pry apart the idea that law is a centralized public institution from the idea that enforcement must also have these attributes. Law is not necessarily associated with centralized coercive enforcement. Legal order, on their view, “is a normative social order in which behavioral classifications are articulated and subject to modification by a centralized classification institution that possesses legal attributes.” (P. 19.) These legal attributes are those that track closely what many legal philosophers take to be the central features of the rule of law: universality; publicity; clarity; non-contradiction and uniqueness; stability; prospectivity and congruence; generality; impersonal, neutral, and independent reasoning; and openness. Their key point is that these legal attributes are only properly incentivized in a system of private ordering and not in a system with fully centralized enforcement.
In offering their behavioural insights into how the rule of law is produced and sustained, Hadfield and Weingast are primarily concerned with rule-of-law building projects. However, their conclusions can also contribute to rule of law debates within jurisprudence. Private ordering implies a strong role for individuals and, for Hadfield and Weingast, can involve the imposition of social sanctions like criticism and exclusion, the authorized private use of force, and the cooperation of private individuals in law enforcement. Shifting the focus of rule of law debates to the role of individuals would be a welcome development within the more theoretical literature. In this regard, there is excellent recent work by Gerald Postema on the idea of fidelity and the rule of law. He emphasizes the need for members of the polity to participate in holding each other accountable under the law. Hadfield and Weingast point in the same direction, but utilizing a very different framework, and more work in this vein would be welcome.
Although Hadfield and Weingast are concerned with how to establish the rule of law, their work could offer important insights into questions of what might contribute to the erosion of the rule of law in societies where it has already been established. For example, in many Western liberal democracies—often used as the models for rule-of-law projects—law enforcement efforts are increasingly information-intensive and rely heavily upon collecting information that is itself initially collected and held by information intermediaries such as telecom giants and the Facebooks of the world. This displaces the role of the community and individual participation in law enforcement, erasing the need for the decisions that individuals make about whether to come forward and tell the state what they have seen or what they know. And if the need to ensure individual cooperation is one of the mechanisms for incentivizing compliance with the rule of law, then moving towards enforcement models that bypass this cooperation raises questions about the potential erosion of compliance with the rule of law. This is practically important, but might also call for new theoretical models regarding what it means to constrain the state in the information age. See Lisa M. Austin, Technological Tattletales and Constitutional Blackholes: Communications Intermediaries and Constitutional Constraints (2015).
Cite as: Lisa Austin, What’s “Private” about the Rule of Law?
(October 20, 2016) (reviewing Gillian K. Hadfield & Barry R. Weingast, Is Rule of Law an Equilibrium Without Private Ordering?
(USC L. Legal Stud.
Paper No. 16-18; Stan. L. & Econ. Olin
Working Paper No. 493, 2016), available at SSRN), https://juris.jotwell.com/whats-private-about-the-rule-of-law/
Reviewing Khiara Bridges, The Deserving Poor, The Undeserving Poor and Class-Based Affirmative Action
, 66 Emory L.J.
(forthcoming 2017), available at SSRN
The link between race and class inequality is a hot topic. The top two anti-establishment movements of the year are Black Lives Matter and Bernie Democrats, and the relationship between them is complicated. In addition, Donald Trump has built a campaign appealing to white middle- and working-class voters by blowing the racism dog whistle. Figuring out why those voters continue to support Trump despite (or because of) his racism is the question of the hour on my Facebook feed.
Which is why I was excited to see Khiara Bridges’ latest paper on class-based affirmative action (from here on, I’ll call it “class-based AA”) pop up in my inbox. Far from the heat of the election, Bridges has written a wonderful article that explores the race-class divide among supporters of affirmative action. In this paper, Bridges argues that class-based AA enjoys widespread bipartisan support because its beneficiaries are white. More specifically, she argues that continuing support for class-based AA depends on differentiating between poor whites as people who deserve to benefit from class-based AA and undeserving poor people of color, who should not. Indeed, she concludes, support for class-based AA might well dry up if people of color were to become class-based AA’s primary beneficiaries.
Bridges’ argument is a dog-whistle sort of claim, in which class-based AA supporters speak in code but often are more overt about their racial assumptions. Bridges’ argument is careful and nuanced. She develops a strong historical and empirical case against white supporters of class-based AA. In doing so, she refrains from the kinds of allegations of intentional racial conspiracy that made Michelle Alexander’s book The New Jim Crow a best seller. Her approach is more “here’s the evidence, sure looks fishy to me.”
The argument proceeds in three parts. In the first part, Bridges notes a potential contradiction in some vocal conservative support for class-based AA. Given conservatives’ lack of support for race-based affirmative action, one would not expect them to support class-based AA. After all, class-based AA is a form of wealth transfer that gives opportunity to the less qualified, who presumably will produce less wealth with the educational opportunity than a more qualified candidate. Conservatives are against anti-meritocratic wealth redistribution. And yet, here are Ward Connerly, Justices Scalia and Thomas, and Republicans in Texas all lining up behind class-based AA. How can we explain this contradiction?
In the second part of her article, Bridges builds a historical case to suggest that race and racism might be the answer to the contradiction. She has plenty to work with here. Others have written about Aid to Families with Dependent Children, and the way in which support for the social welfare program dried up when the program began to help more black unmarried mothers than white widowed mothers. The program was very popular when the public saw it as assisting white women who were poor through no fault of their own. Not so much when the beneficiary class shifted to black women, who were often single mothers via divorce and unmarried pregnancy.
Bridges draws on that history to suggest that the same dynamic might apply here, only in reverse. Conservatives who found recipients of race-based affirmative action to be undeserving now find the beneficiaries of class-based AA (who will include many more whites) to be deserving. Supporters like Scalia, Thomas, and Ward Connerly often emphasize the lack of fault on the part of those candidates who would benefit from class-based AA. In contrast, these supporters presume that beneficiaries of race-based affirmative action are not deserving, either because they are not sufficiently disadvantaged economically or because their disadvantage might be traced to their “culture” and not to structural racism.
The third part of the article constitutes a critique of class-based AA. Here, Bridges’ main critique is that class-based AA reinforces racialized notions of deserving and undeserving. Specifically, she points out that class-based AA would likely become unpopular if the main beneficiaries of the program were to become poor people of color from families of divorce or unwed mothers, or from non-English-speaking families.
To make her case, she draws in part on the country’s not-so-distant experience with welfare reform. She highlights the rhetorical references of personal responsibility and welfare queens that accompanied the Clinton 1.0 Administration’s decision to “end welfare as we know it.” In a more contemporary example, she points to Chief Justice Roberts’ opinion in NFIB v. Sebelius, the recent ruling on the Affordable Care Act. In his opinion, Roberts openly begrudges Medicaid expansion to people who live significantly below the poverty line, arguing that the more narrowly defined beneficiary group from the earlier legislation (blind, disabled, and elderly poor) was the nation’s neediest. Bridges concludes from such history that, at least among conservatives, support for class-based AA would shrivel if people of color were to dominate the beneficiary class.
This article is fresh and provocative, and sure to be a hit. I particularly admire how careful Bridges is to ground her work in history and to refrain from overclaiming. I am also very happy that Bridges has taken up the question of racialized poverty at length (she has several other papers on the subject). I’ve long said that critical race theorists ought to spend more time closely investigating the structural link between class and race, rather than seeing class as just an additional identity category with which to analyze identity more generally.
I had two quarrels with Bridges’ piece, both of which spring from how much I like the work. First, although I thought she refrained from vulgar racial conspiracy theory, I thought she could have spent more time exploring people’s good-faith motives for supporting class-based AA. More pragmatic conservatives suggest class-based AA as a compromise or common-ground position; she could have given more time to that argument.
Likewise, I wasn’t satisfied with her discussion of the Scalia argument that race-based AA is unconstitutional because it presumes that people of color suffer from disadvantage, and class-based AA does not. Scalia isn’t alone on that position. Sheryll Cashin (an African-American former White House advisor on urban neighborhoods and the daughter of civil rights activists) has also used this argument to defend her “place and not race” argument to shift to geography as the centerpiece of AA. In my view, Bridges’ response to Cashin—that liberals might act in good faith but still be subconsciously influenced by race—doesn’t really settle the question and smacks a bit of false consciousness.
Second, I wanted a more complicated structural link between race and the deserving/undeserving binary. Here’s a story to illuminate what I mean. When white soldiers returned from World War I to take up their jobs at the plant from blacks who had “filled in,” some government officials reclassified those jobs from unskilled to skilled. It wasn’t just that those officials were biased. It was also (more) that whites had had more shop training than had their black counterparts. Officials relied on levels of training to define the notion of skilled, and of course, levels of training are now and were then structurally correlated to race.
In the same way that notions of skill were racialized, notions of the deserving and undeserving poor in class-based AA are constructed not just by crude racial bias but also by structural things like connection to the criminal justice system. It might have been productive to explore Ward Connerly’s ideas about why criminals don’t deserve to take advantage of the social safety net when they get out.
That said, I am more than happy to have had the chance to quarrel with Bridges on these points. I know she’s also doing fabulous work on privacy and race, but I am looking forward to reading more work on race and class. I do wonder whether, owing to timing, this piece will be as celebrated as it should be. For the moment at least, class-based affirmative action won’t be as much in the limelight now that the Court in Fisher v. University of Texas at Austin has upheld race-based affirmative action.
Even so, there’s a presidential election and several Supreme Court nominations in our near future, so the issue could come roaring back sooner than we might hope. In any event, Khiara Bridges’ insightful discussion is terrific and a much-needed addition to the growing Critical Race Theory body of work on racialized poverty.
William Baude & Stephen E. Sachs, The Law of Interpretation
, 130 Harv. L. Rev.
(forthcoming 2017), available at SSRN
“Interpretation,” as used by Baude and Sachs, names the process that starts with legal texts and ends with their contribution to antecedent law. This is not the same activity as uncovering full linguistic meaning (though this may be necessary to determine legal contribution), nor is it extending or repairing antecedent law.
This article presents Baude and Sachs’s case that system-specific law governs interpretation of legal texts. In short, the positive law in particular legal systems generates interpretive principles that shape the legal content established by statutes (and constitutional provisions). The authors’ view rejects any theory of law or legal interpretation that insists, on conceptual grounds, that the materials for interpretation are common to legal systems or that mandates a standard of interpretation for parts of our system (e.g., the Constitution) based on conceptual claims alone (such as “the purpose” of a written constitution). Some of the examples Baude and Sachs offer of system-relative legal standards that I find plausible as governing interpretation are: the Dictionary Act, the “repeal-revival rule” of 1 U.S.C. section 108 (according to which new repeals don’t automatically revive old statutes), the general savings statute (according to which repeal does not erase liabilities arising under the old statute), and some traditional canons of interpretation such as the “Mens Rea Canon” and the presumption against retroactivity.
One of Baude and Sachs’s most successful targets is the simplest form of what Mark Greenberg calls the “Standard Picture” of interpretation, according to which the communicative content of a statute is its contribution to the law (because the statute “was authoritatively pronounced”). Larry Alexander’s speaker-intention theory is a version of this view. I have always viewed this simple Standard Picture as a nonstarter, since in American law a statute can be unconstitutional (and therefore make no contribution to the law) because of its communicative content. Baude and Smith supply many other examples from our legal system where the interpretation of legal texts fails to “track any coherent theory of linguistic meaning” (P. 10).
Many theorists would agree with Baude and Sachs’s general point that the answers to the question of the legal content of legal texts “depend on the other legal rules in place” (P. 5). (Think of those with a holistic, coherentist view of law, and anyone believing that the Hartian master rule contains an entire interpretive code.) Their specific claim that in American law, there are laws of interpretation is not new, as Baude and Sachs admit. Nor is their more general idea that the standards of correct interpretation vary across legal systems. Hartian positivism, which Baude and Sachs endorse, is amenable to these ideas; the rule of recognition picks out system-relative rules, some of which are about how legal texts contribute to law. But one needn’t be a Hartian, or even a positivist, on the nature of law to accept that there are system-relative interpretive rules of law. The Ronald Dworkin of Law’s Empire can accept this idea. If I understand him, so can Scott Shapiro. (Greenberg, however, could not. On his view, the basic rule for correct interpretation is always this: interpret according to a universal master formula that takes into account all the circumstances, including the existence of alleged interpretive materials. Any rule apparently derived from the universal master formula and one of a particular legal system’s alleged interpretive materials – e.g., a statute, a canon of interpretation – will be of the form, “Interpret such-and-such way as long as the universal master formula is thus satisfied.” Such a rule would not fit his account of law, for it is an immediate logical consequent of the universal master formula and does not arise in what he regards as the right way for law.)
Given these facts, it is not necessary to point out why endorsing a Hartian model of law might not be the best philosophical choice in a discussion of legal interpretation, particularly when the authors are identifying interpretive precepts, about which there is considerable disagreement, from court decisions and legal practice (e.g., concerning the Constitution). Even when the authors restrict themselves to alleged interpretive texts (statutes and judicial opinions), it is plain that Baude and Sachs are interpreting the material on problematic assumptions – e.g., that court decisions yield whole precepts, that the authors have correctly identified the relevant interpretive texts and have interpreted them properly (without recourse to the Standard Picture as default), that the product of this interpretation is itself a law. In general, Baude and Sachs leave mysterious the grounds on which they interpret the alleged interpretive material and ignore the problem of whether there are such grounds compatible with their claim about system-relative laws of interpretation. (I think there may be.) Nonetheless, these and other difficulties are largely irrelevant to what I take to be the authors’ main contribution.
As I see it, their main contribution to the broader philosophical literature on law is the case they make that how the contribution to law of legal texts depends on (certain) legal rules is determined by these rules, and that these interpretive rules exist in the way that other ordinary legal rules, including those established by the interpretation, do.
Their case has two parts. First, there is an argument by analogy from the (less controversial) existence in the American legal system of laws for interpreting legal instruments such as contracts and wills. Second, the authors demonstrate in detail, through their use of legal argument and their reminder of the use of it by judges and other legal experts, that legal argument in the U.S. goes beyond linguistic meaning of legal texts at crucial points. Instead, statutes and constitutional provisions are read, apparently for legal contribution, by applying standards often accepted as law purportedly drawn from other legal texts (sometimes rather straightforwardly) and system-relative legal practices. There is this interpretive practice, and although, as the authors admit, there is disagreement about its details, they contend—rightly I think—that there isn’t disagreement about its existence or all of the details. There are easy cases of interpretation.
This enterprise amounts to taking parts of the U.S. Code and other statutes purporting to govern the interpretation of statutes (as well as various interpretive practices) seriously. One can argue that Dworkin’s greatest challenge to H.L.A. Hart, one that shaped the discussion in legal philosophy for decades, was to take seriously the practice by judges and lawyers in hard cases of arguing in terms of discovering (rather than extending) law and to suggest that we credit these experts with knowing what they are doing. Baude and Sachs’s article is richer and more suggestive of interesting philosophical points than I have had space to detail, yet it can be read as posing an analogous challenge to certain theories of legal interpretation and of law.
Stefan Sciaraffa, Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence
, 6 Jurisprudence
391 (2015), available at SSRN
Stefan Sciaraffa’s Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence is a review of a fine collection of essays edited by Luís Duarte d’Almeida, James Edwards, and Andrea Dolcetti, entitled Reading HLA Hart’s ‘The Concept of Law,’ published by Hart Publishing in 2013. While the volume contains many provocative and insightful pieces by leading theorists in conceptual jurisprudence, I want to focus on an important – and frequently overlooked – point made by Sciaraffa on the nature of the relevant sense of necessity in conceptual theories of law.
Sciaraffa’s essay makes a number of distinctions of theoretical importance, including the distinction between “constructed” and “wild” concepts of law; however, the most illuminating one, as it pertains to conceptual jurisprudential methodology, is between metaphysical and conceptual necessity. Sciaraffa defines “metaphysical necessity” as “concerned with identifying and explicating those features an object has by virtue of itself and irrespective of the way we conceptualise or talk about the object” (P. 392). He explains “conceptual necessity” as concerned with identifying “features that are true of law by virtue of the way we talk about or conceptualise the law” (Id.).
Sciaraffa believes that many theorists have wrongly claimed that the relevant modality for conceptual jurisprudence is metaphysical necessity, a feature that many of these theorists believe legitimately calls into question the very enterprise of giving an analysis of the concept of law. There are many influential theorists – most prominently, Brian Leiter – who have come to reject the project of conceptual analysis as resting on problematic foundations, which are commonly thought to be methodological in character.
Sciaraffa rejects the idea that the relevant modality is metaphysical on the ground that “no legal theorist has staked out a plausible account of such necessities in general or as applied to law specifically” (Id.). He argues, further, that “no legal theorist has offered a plausible account of how to separate those features that the objects that we refer to using the term ‘law’… have by virtue of themselves as opposed to those they have by virtue of the way we conceptualise them” (Id.). The use of the notion remains contentious to say the least.
It should be noted that Sciaraffa’s claims are somewhat stronger than they might seem given the charitable way in which he expresses them. Although Sciaraffa speaks in terms of a failure by legal theorists to justify the idea that the relevant modality is metaphysical necessity, the essay expresses a deeper skepticism about the relevance of metaphysical necessity to conceptual jurisprudence. Sciaraffa’s view seems to be the much stronger view that it makes little sense to think that law has any properties that are metaphysically necessary in the sense that they are essential properties that law has, no matter how we conceptualize them.
This stronger challenge should seem eminently sensible for a number of reasons. First, there is simply no denying that law is a social kind (i.e., a concept that depends for its content on human activities) that is artifactual in character. Neither positivists nor antipositivists can plausibly deny that law is a social institution – and, to my knowledge, no one does. Even the strong natural law theorist sees morality as operating only as a constraint on whether a social lawmaking practice can succeed in creating something that counts as law. It might be plausible to think that natural kinds (i.e., a concept that reflects the structure of the universe independent of human interests and activities), such as water, are best explicated in terms of metaphysical necessity. But the idea that the concept of a social institution that is manufactured by social practices, which include but are not limited to linguistic practices, is best explained by a form of necessity that is utterly mind-independent and hence independent of our social activities is deeply problematic.
Second, it is simply unclear how, as an epistemic matter, we could have access to the content of concepts that are objective in character. If the content of these concepts is determined in a way that is utterly independent of our practices and preferences, it is not clear how we could identify that content. We can verify the truth of the objective claim that the shape of the earth is roughly spherical because that claim, while the truth-makers are mind-independent, can be verified through sense experience. Insofar as the content of concepts cannot be verified by sense experience on the assumption that our empirical practices do not at all determine the content of the concept, all we have left to go with is intuition.
And there is simply no reason to think that intuition is a special faculty that is capable of discerning objective conceptual truths than it is of discerning objective moral truths. Intuitionism as an account of moral epistemology failed miserably; intuitionism as an account of how to determine the content of concepts on the assumption that the truth-makers of conceptual claims are wholly mind-independent is far less plausible. The only concept of law that we could possibly come to understand, as an epistemic matter, is the concept that is fixed by our core linguistic and legal practices.
The reason for this ultimately has to do with an important limit on our ability to know the world first identified by Kant. Kant famously claimed that we cannot know the world as it is independently of the “categories” we use to structure and give sense to our perceptions of the world. Kant distinguished between the thing “in-itself” and the thing as it appears to us, and argued that we can have knowledge of only the latter. The world does not come to us, in his view, unmediated through conceptual filters like those of space and time. How the world in-itself presents itself to us is mediated through these conceptual “categories,” which provide the world with a structure that can be processed by beings with brains and capacities like ours.
But insofar as we cannot know the world except through the filter of our conceptual frameworks, the only form of necessity that could be relevant in conceptual analysis is conceptual necessity. Conceptual necessity recognizes that the necessity of a proposition is relative to the conceptual framework in which it is processed, understood, and known. Such necessity is, thus, conditional upon the categories through which beings like us perceive and make sense of the world, and do not hold, as W.V.O. Quine put the matter, “come what may.” It is true that Quine used that language to delegitimize the general project of conceptual analysis, but his famous critique in Two Dogmas of Empiricism seems to presuppose – and implausibly, in my view – that the relevant form of necessity is metaphysical necessity.
Sciaraffa’s review essay might be comparatively brief, but it is rich in insight with respect to how we should conceive the project of analyzing legal concepts. The only real direction we can go in is to rely on the linguistic and legal practices that shape our intuitions about law, and these concepts shape our intuitions in a reliable way precisely because, as Raz observed, our practices construct those very concepts. Sciaraffa’s essay is a timely reminder about how the project of conceptual jurisprudence should properly proceed.