Yearly Archives: 2010

The Moral Within, The Law Without

Aug 12, 2010 Ekow Yankah

The common complaint that the distinction between Kant’s moral and legal philosophy is unknown is not strictly true.  Many engaged in legal philosophy have encountered, time and again, the reminder (or admonition) to treat with care the distinction between Kant’s ethics and the rechtlehre.  Further, Kant’s political philosophy has been the subject of many fine books over the last quarter century.  What is difficult, rather, is to keep the distinction foremost in one’s mind when the philosophical heat, so to speak, is turned on.  Well intentioned, one notes the critical distinction between the purity of a will acting on moral reasons undergirding Kant’s ethics and the preservation of equal external freedom on which Kant’s political philosophy is based.  Yet when thorny questions are leveled, it is too easy to slip into familiar groves, weighing whether an action is appropriately prohibited by measuring its legitimacy against, say, the Categorical Imperative.

One problem, I suspect, is the lack of a text, close at intellectual hand, which has carefully explored Kant’s political philosophy and explicated its branches  in a wide range of subject matters.  Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy could by its intelligence, clarity and ambition fundamentally arrest and repair the sloppiness with which Kant’s political and moral philosophy are too often jumbled.

Ripstein begins by clearing away the notion that Kantian legal theory can be isolated by translating Kantian moral prohibitions into legal ones.  Instead, he explores, with both depth and simplicity, Kant’s distinction between moral and legal duties.  Ripstein highlights the basis of Kantian legal theory as the freedom from interference with external freedom.  The fundamental idea is that the basis of legal right is the ability to decide for yourself what your purposes will be or, put otherwise, to be your own master and slave to none.  Thus, in order to ensure freedom one may use force to hinder those who would interfere with another’s external freedom.  Indeed, for Kant, the claim is stronger – freedom encapsulated in legal right is constituted by the ability to employ coercion to secure all from interference with their external freedom.  Thus, force is a constitutive element of freedom.

When described with the clarity and care Ripstein displays one may underestimate the full depth of the idea.  To take one example, Ripstein explores the long leveled critique that freedom, or more often put liberty, cannot serve as the normative basis for law as the preservation of one person’s liberty must always come by restricting another’s.  After all, the right to be free from violent assault requires restricting the liberty of the person wishing to assault you.  Ripstein illustrates how the Kantian model dissolves this critique in an intuitive way – because liberty is freedom from external interference, the assailant was never “free” to assault you in the first instance.  Not only does this undermine the apparent critique but it has the benefit of being perfectly intuitive, the kind of thing you would tell a child when they protest their rights were violated by not being able to take little sister’s toy.

Secondly, focusing on external freedom avoids justifying a legal system by welfare distribution or trade offs.  Kantian legal right is focused on protecting your freedom from being dominated by others, it is not based on one’s ability to achieve one’s ends and collect their rewards.  Freedom is the ability to aim your purposes at your ends not the right to succeed in reaching them.  In one nice example, Ripstein points out that if someone buys the last quart of cream you wished to use for cooking dinner tonight, they have done you no wrong.  While you remain free to set your own goals the world does not owe you successful conditions in achieving them – for that would require dominating others to force them to manufacture your success.

The remarkable aspect of Ripstein’s book is his systematic explication of Kantian political theory through field after field of law.  Ripstein works his way from the inherent freedom one has in her body to set purposes to the idea that one must be able to make useable unowned items instruments of one’s will.  So Ripstein illustrates how starting from external freedom, one can work their way to a distinctive model of Kantian property.  Likewise, Ripstein sees in the freedom to control one’s purposes the ability to join ends that is the basis of contract.

Of particular interest to political theorists is Ripstein’s exciting discussion of Kant’s thoughts on legal rights in the state of nature and the duty to establish civil society or a condition of right.  For Kant, legal rights only existed in the face of a omnilateral will that was empowered to act for all its subjects.  In this manner, legal officials are empowered to employ coercive power by the will of all do not make one the master of another.  Rather, all were equally masters of themselves.  Importantly, because legal rights exist in virtue of such a will and they are indeterminate or provisional until there is a political state – a condition of right.  This leads to intriguing questions on Kantian duties to exit the state of nature, enter into and maintain civic society.  These questions, I believe become even more poignant when one begins to consider a modern world of terrorist threats and government which justify many dark actions to preserve order.  (Related, Ripstein discusses Kant’s infamous refusal of a right of revolution.)  Ripstein also has a thoughtful discussion of how many of the features of the modern state can be understood as justifiable in light of preserving freedom and preventing anyone from being mastered by others.  Kant’s view that the state must provide for the poor from public funds is a core example.

A book of this ambition can not answer every particular question to the satisfaction of all.  Some may find it overly convenient that many state activities that liberal academics favor can all be redescribed as freedom protecting as opposed to welfare enhancing.  Further, despite the theme of book being the distinctiveness of Kant’s political theory from his ethics, one still cannot help but to wonder if they can remain perfectly hermeneutically sealed or how they fit together.  Ripstein’s explanation here may seem overly subtle to some.

Still, Ripstein’s book is a remarkable accomplishment; one I imagine will repay scholars returning to it time and again.  It is a compliment to the author that in reading this book one so often finds the ideas nearly obvious.  It is Ripstein’s clarity that leads the reader to realize or, more honestly, imagine that they had long held this view of Kant.  By building a wonderful and coherent scaffolding with which scholars can survey the landscape of legal doctrine Ripstein may well fix and rescue Kant’s distinctive legal philosophy.

Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition

Jul 8, 2010 Michael Green

Anglophone philosophy of law is remarkably focused on one book – The Concept of Law by H.L.A. Hart. This may be a mistake. It is hard to imagine a single book – much less an introductory work for undergraduates written almost fifty years ago – playing a comparable role in, say, the philosophy of language or mind. But given that The Concept of Law does occupy such an important place in the philosophy of law, it is all the more important to get what Hart said in the book right. Julie Dickson’s recent article does, in a way that has importance for the field more generally.

Hart argued that at the foundation of each legal system there is a practice among officials of enforcing norms only if they satisfy certain ultimate criteria. For example, in England officials enforce norms only if they can be traced back to the Queen-in-Parliament. Hart calls these enforcement criteria the rule of recognition for the legal system.

It is commonly said that the rule of recognition is a conventional rule. As Dickson defines it, a rule is conventional if the reasons that participants have for following the rule include the fact that others do so as well. The classic example of a conventional rule is driving on the right side of the road. An essential reason that we have for driving on the right side of the road is the fact that other people do so as well.

Dickson argues that in the first edition of The Concept of Law Hart did not claim that the rule of recognition is conventional. Although he thought it was important for the existence of a rule of recognition that officials accept the rule as binding upon them, he did not think that they had to have the same reasons for acceptance, and he was agnostic in general about what their reasons were and whether they were valid. Hart offers as possibilities “calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.” One judge might accept the rule of recognition as binding because of his oath of judicial office. Another might do so because it is the best way of feeding her family. And so on.

Dickson concedes that in his “Postscript” to the second edition of The Concept of Law, Hart slips and suggests, at least at times, that the rule of recognition is indeed conventional. Much of the “Postscript” was written in response to Ronald Dworkin, who argued that Hart’s theory had failed to explain how judges have reasons for conforming to the rule of recognition. Dworkin offered, as a lifeline for Hart, those reasons for conformity (such as coordination) that apply in conventions. Hart took the bait, as have many philosophers of law who came after him.

Dickson argues that Hart shouldn’t have taken the bait. Under a rule of recognition approach, official conformity is needed solely to identify a norm as law. It need not be used to explain why officials have a reason, or think they have a reason, to treat the rule of recognition as binding. In support of her argument, she considers Andrei Marmor, who, in Positive Law and Objective Values (Oxford U. Press 2001), offered what he described as a conventionalist account of rules of recognition. She argues that even in Marmor’s account official practice simply identifies what is law. It does not explain the reasons officials have, as matter of political morality, to adjudicate in accordance with the law. Officials may play the “legal game” for any number of reasons – including very bad ones.

About all this, I think Dickson is clearly right. It is particularly important to emphasize, as Dickson does, that – except in the “Postscript” – it was not Hart’s goal to explain why there are in fact reasons for officials to conform to the rule of recognition. In refraining from offering such an explanation, Hart was wise, for it is probably false that the mere existence of a rule of recognition among officials necessarily gives each official a reason, even a prima facie reason, to conform to the rule.

But I have some questions about Dickson’s reading. Assume that English officials are so committed to enforcing only norms emanating from the Queen-in-Parliament that each would intransigently continue doing so even if the others did not. One way of describing these officials is that they do not care whether the norms they enforce are law, in Hart’s sense of the term. As Dickson describes his position, it appears that Hart would deny that the norms these officials enforce are law. The existence of a legal system requires that officials are constrained by their agreement when identifying norms that are candidates for enforcement, even if such agreement need not ultimately justify for these officials why they choose to enforce these norms. Dickson does not explain in her article why Hart took this stance. Furthermore, it appears, at least to me, that this role for official agreement means that there is a weak sense in which Hart’s theory is conventionalist.

Rethinking Legal Postivism

Jun 7, 2010 Connie Rosati

Survey courses in analytical legal philosophy commonly include brief excerpts from the jurisprudential writings of Jeremy Bentham and John Austin. After a cursory treatment of their work, with emphasis on the “command theory” of law, the focus shifts to H.L.A. Hart’s famous critique of Austin and then to Hart’s own influential version of legal positivism. The prevailing view has long been that Hart’s critique of Austin was decisive and that Hart’s own theory of law expresses legal positivism’s “core commitments.” Both bits of the conventional wisdom come under scrutiny in a pair of provocative recent articles by Frederick Schauer.

In “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Schauer explains why, contrary to the prevailing view, Austin’s account of law may have been more nearly accurate than Hart’s. He acknowledges that on many points, Hart identified important deficiencies of Austin’s account. Austin focused, for example, on duty-imposing rules, neglecting the critical and sometimes constitutive role of the power-conferring rules so pervasive in advanced legal systems. And his notion of the sovereign oversimplified legal systems in multiple ways by essentially treating all of law on the model of an absolute monarch’s imposition of rules on obedient subjects.

Perhaps most important among Hart’s criticisms was that Austin failed to account for the normativity of law because his emphasis on sanctions and coercion led him to overlook the committed standpoint of officials who take up the internal point of view, who see the law as giving reasons and creating obligations. It is precisely here that Schauer invites us to reconsider the relative merits of Hart and Austin’s theories, suggesting that such a reconsideration may lead to fruitful inquiry into what a theory of law should be expected to accomplish.

Schauer maintains that although Austin erred in overlooking the non-coercive aspects of law, those who have apparently been influenced by Hart may err in dismissing the importance of sanctions or coercion. He suggests at least two difficulties for Hart’s critique of Austin. First, he argues, in a modern regulatory legal system, citizens may, for good reason, experience law as more coercive than Hart appreciated. Insofar as a theory of law should capture the most salient features of a modern legal system, insofar as descriptive or empirical adequacy is among the conditions on an adequate theory of law, Hart’s view would seem to do worse than Austin’s. Of course, many legal philosophers would reject such empirical considerations as irrelevant, arguing that a theory of law should concern itself only with the “essential features” of law—those that would figure in an analysis of the concept of law. Sanctions and coercion may be common to actual legal systems, but they aren’t essential. To take such a position is, however, to choose sides in a deeper debate as to the purpose of a theory of law, Schauer stresses, and it is far from obvious that theories of law should concern themselves with the concept of law rather than with common features of paradigmatic legal systems.

Second, Schauer takes issue with Hart’s appeal to ordinary language to argue that being obligated is different from being obliged. The linguistic data, including language from court opinions, is far from unequivocal, and so the appeal to ordinary language provides insufficient grounds for rejecting Austin’s understanding of legal obligation. Even if sanctions are not an essential feature of duty generally, they may be an essential feature of distinctively legal duty.

In a companion piece, “Positivism Before Hart,” Schauer takes on the second bit of conventional wisdom. His aim is to show the continuing relevance of Bentham and Austin’s versions of legal positivism to jurisprudential inquiry, contrary to the prevailing view, which treats Hartian positivism as supplanting these earlier versions. Schauer contends that it distorts the history to treat Hart’s as the exclusive or best understanding of legal positivism’s core commitments. He distinguishes among three forms of legal positivism, all of which he claims were probably held by both Bentham and Austin. Conceptual positivism, which dominates contemporary understandings, emphasizes the Separability Thesis. Normative positivism treats concepts as social artifacts and holds that the conceptual separation of law and morality depends on a normatively informed choice of a concept of law. Decisional positivism, unlike the other kinds, is concerned not with understanding what law is so much as with institutional design and procedures of legal decisionmaking. This latter, more neglected form of positivism, focuses on limiting the discretion of officials by restricting the sources of law to ones that can be readily identified and by creating legal institutions that operate according to fairly precise rules.

Those who adhere to the received view, Schauer says, will contend that only conceptual positivism expresses what is central to legal positivism, which most fundamentally concerns the concept or nature of law. To the extent that Bentham, Austin, and other legal positivists, including Hart, might have accepted normative and decisional positivism, that is purely incidental. Schauer reminds us, however, that what it is for something to be a “core commitment” is contestable. Conceptual positivism, he insists, has neither historical nor obvious philosophical priority over normative and decisional positivisms, and so without more argument, we have little basis to conclude that the latter are less deserving of the “positivist mantle.”

Schauer’s opening salvo raises more questions, of course, than it attempts to answer, but that, in the end, is just the point. Treating conceptual positivism as central assumes that there are concepts, that there is such a thing as “analysis,” and that the concept of law is sufficiently well formed to admit of analysis. But are these assumptions well founded? With regard to normative positivism, we might wonder whether, in the end, it is a coherent alternative. For if, as many philosophers would insist, concepts are abstract entities, then they are not objects of normative choice and social construction; normative positivism cannot be an alternative to conceptual positivism. As for decisional positivism, we might well wonder whether it can stand on its own independently of conceptual or normative positivism. If not, then arguably it is less deserving of the positivist mantle, though it may be no less deserving of our attention on that account.

Logical space exists, too, for forms of positivism that Schauer does not consider and that might compete for centrality, depending upon what makes most methodological sense and what best answers to the goals of a theory of law. Consider a kind of “reforming positivism” that offers a reforming definition of ‘law’ as a part of theory construction responsive to certain natural and social facts about human legal practices. Or consider a form of positivism that aims at a “real definition” of law rather than conceptual analysis.

Schauer’s essays offer a welcome invitation not only to revisit Bentham and Austin with an eye to their broader jurisprudential concerns. They urge us, in Schauer’s typically clear and fair-minded manner, to suspend the received view, while exploring anew a host of questions not only about legal positivism, but also about methodology and theory construction in the philosophy of law.

Methodology in Jurisprudence

May 19, 2010 Brian Bix4 comments

For decades, if not centuries, discussions in Jurisprudence classes often start with the question, “What is Law?”  What then ensues is usually the bandying about of various conventional or off-the-wall definitions (depending on the tastes and inclinations of the teacher or coursebook editor), followed by a predictable reading and discussion of the 1958 Harvard Law Review debate between H. L. A. Hart and Lon Fuller, perhaps with some reference thrown in to Ronald Dworkin, or a natural law theorist (either very old, Thomas Aquinas, or more recent, say, John Finnis).  By then, it is considered safe to abandon discussions of the nature of law and go on to the next topic.

The problem with these discussions is that they skim across the surface of jurisprudential debates without ever reaching the core.  Courses may include debates about whether the Nazis had law or not, or whether we have a moral obligation to obey the law, but still there is little attention to all that is being assumed by any discussion of theorizing about (the nature of) law.  However, one should not be too quick to blame the teachers (or coursebook editors).  Even the theorists who wrote the canonical articles were not always clear, or helpful, about what is going on when theoretical claims are made.

Consider the complications:  in what sense is “law” a thing that can be described or explained?  If we are talking about a particular social practice, one that changes over time, why should we assume that anything true about that practice here and now will be equally true of the practice in another time or place?  Are we just listing things that are true of most legal systems, all known legal systems, or all possible legal systems?  Are the theory’s claims descriptive, analytical, interpretive, conceptual, or some combination of the above?

It is only in recent years that legal theorists have been more curious and more forthcoming about the methodological assumptions of their work, and potential methodological problems with their claims.  Joseph Raz’s article, “Can There Be a Theory of Law?” is an excellent example of a theorist facing such methodological issues.

Raz’s analysis is that theories about the nature of law are actually theories about the concept of law.  That analytical philosophy is, might be, or should be, conceptual analysis is nothing new (though conceptual analysis certainly has its critics, both in philosophy generally and in legal philosophy in particular); after all, the best-known text in English-language legal philosophy does carry the title The Concept of Law (H. L. A. Hart – Oxford U. Pr., 1961; rev. ed., 1994).

However, note for Hart that the expression is “the concept of law,” implying that there is a single concept, universally true, perhaps grounded in some Platonic realm.  Raz declares instead a focus on “our concept of law,” one parochial to us, though one we apply universally to other societies, present and past.  To say that it is our concept of law indicates that other societies might (and do) have other concepts, that our concept may have changed over time, and that it does not make sense to speak of the concept itself (as contrasted to our descriptions of the concept) being right or wrong.  For Raz, the point of theorizing about (our concept of) law is to explore a concept that is part of our general self-understanding.  And within Raz’s own theory of law, the self-understanding is one that shows connections between the concepts of “law” and “authority” and “practical reasoning” (among other connections).

Readers might reasonably react to all these references to conceptual analysis by asserting that we are not interested in a mere “concept;” we want to know something about “the practice itself,” in this case, law.  However, an initial question is how we determine what counts as “law”:  what is it that makes one system of guidance and dispute resolution “legal” and another not?   The initial and primary concern of a theory of (the nature of) law is boundary lines: what it is that makes a particular normative system legal.

Even assuming that Raz (and Hart, and others) are correct that the proper focus of legal theory is conceptual analysis (and, as earlier noted, there are doubters, including prominently, Brian Leiter, e.g., here (2007)), other questions remain that Raz’s article does not get to.  How can we tell whether “we” have one concept of law or more than one?  If there is more than one, should the theorist select just one, and if so, on what grounds should a selection be made?  Finally, if theories of law are just efforts to elaborate our concept(s) of law, why do theorists commonly act as if something more important is at stake?  Are they simply mistaken?

Raz’s article does not answer all the methodological questions, nor will the answers he does give be satisfactory to all, but it is an important step forward in the conversation, and an invaluable addition to the literature.

Rethinking “International Law”

Apr 26, 2010 Dennis Patterson1 comment

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794)

One of the interesting claims in this timely, important and controversial article is that constitutional law may look different from international law but it is not.¹ Like international law, there is no State enforcement authority for decisions of the Supreme Court.  Additionally, it is doubtful there is a Rule of Recognition in constitutional law (e.g., contests over the meaning of key terms and interpretive strategies is pervasive).  The conclusion to be drawn is this: if you question the efficacy of international law, then you have to do the same with constitutional law.²

Given the structural similarities between constitutional and international law, why is it that compliance is never questioned in constitutional law but is always foremost in the context of international law?  The authors cover a variety of theories but suggest that game theory might provide the best answer.  When we speak of “the State,” could it turn out that the State is just a site for the resolution of collective action problems?  Might it be better to focus not on formal characteristics of legitimacy and authority (e.g., sovereignty) but a different question altogether?  That question, the authors suggest, is “how law works?”

In this short review, I can only fail to do justice to what is surely one of the most interesting articles on international law in the literature.  In an era when legal theorists are grappling with the conceptual challenges of transnational legal orders, Goldsmith and Levinson supply them with a rich and suggestive article.

Surely questions remain. The primary problem with a game theory approach to these issues is that game theory is an explanatory and not a normative approach to law.  Game theory might answer the question “Why do state comply with international law?” but it cannot answer the question of the normative status of law.  This question remains on the table.