Yearly Archives: 2019
Dec 5, 2019 Brian Bix
Steve Hedley, The Rise and Fall of Private Law Theory, 134 L. Quarterly Rev. 214 (2018)
In one sense, contemporary private law theory offers a wide range of approaches. For example, contract law theory includes significant theories whose focus ranges across promise, consent, property, commerce, reliance, choice, and wealth maximization, just to offer a quick sample. In tort law, one also finds theories that emphasize corrective justice as well as theories grounded on the inherent (“formalist”) nature of certain kinds of interactions. Under Steve Hedley’s analysis, however, all of these theories (and the comparable theories of other doctrinal areas within private law) in fact cluster in a narrow category, one that excludes important considerations once considered central to private law theory. In particular, Hedley’s argument is that modern private law theory tends to ignore or discount the purposes the state might try to achieve through law–the use of legislation and regulation in private law areas in order to achieve collective objectives. Hedley goes on to show how this is a relatively recent development, that older writings on private law offered a more central place for public purposes.
If, as current theories claim, private law doctrinal areas are, in fact, essentially about a particular value, or essentially about wealth maximization, or essentially about intrinsic-formalist truth, then what the state does will likely be seen as either irrelevant or ill-advised. State action will undermine the innate wisdom of the efficient market or the efficiency-increasing judgment of judges, and will distort outcomes away from what corrective justice requires.
Another reason why contemporary theories of private law–theories that purport to apply to particular areas of law across (all) jurisdictions–might avoid focusing on legislation and regulation is that such state actions inevitably vary from one legal system to another, often in very significant ways. And that variation threatens the (express or implied) universal claims of private law theory. (In Contract as Promise (1981, 2nd ed. 2015), just to choose one example, Charles Fried offered us a promissory theory of contract law, not a promissory theory of American contract law.) For Hedley, who is skeptical of the universal claims of private law theory, this is all the more reason to emphasize the collective purposes present variously in different countries’ private law.
It would also be a positive under his analysis that discussions of private law focus more on the details of everyday practice. Contract law theory should have more to say about the boilerplate that dominates consumer contracts through its presence in standard forms and online agreements. Tort law theory should have more to say about insurance that sharply affects accident compensation and accident deterrence, the regulation that frequents supplements or overrides litigation to set standards of behavior, and the use of state accident compensation schemes that in many countries and in many contexts is an alternative to tort litigation.
Hedley makes the important point that scholars from different jurisdictions may view the law in distinctly different ways. As he notes, there are often sharp variations in perspective between lawyers in common law and civil law countries. Even among common law jurisdictions, the differences can be significant–at times in ways that even affect Hedley’s own argument. And this is the basis for one small quibble. Hedley expresses concern that academics’ focused on “explaining” law will crowd out necessary work by scholars focused on improving law. There are some grounds for thinking that analytical work on private law has pushed aside prescriptive/normative work in Britain or on Continental Europe, or at least that it did so in the past. However, this fear (or accusation) is entirely ungrounded when thinking about American scholarship, where prescriptive/normative work has been, and continues to be, vastly more numerous, and vastly more influential, than analytical work.
Nov 8, 2019 Alma Diamond
The seminal scholarship of H.L.A. Hart still looms large over much of jurisprudence. There are countless commentaries, challenges, exegeses, celebrations, and elaborations on offer. For this reason, it takes an incisive mind to add to Hart’s account. That is precisely what Philip Pettit does. His recent article takes a careful look at one aspect of Hart’s Concept of Law that is often mentioned in passing, sometimes criticized, but never carefully retraced and fleshed out: his genealogy of law.
In his article, Social Norms and the Internal Point of View: An Elaboration of Hart’s Genealogy, Pettit takes on some of the lingering questions surrounding Hart’s genealogy. How do primary rules arise? Are they any different from customs, habits, or other forms of convergent behavior? What, exactly, constitutes the internal point of view? If one acts in conformance with a community out of fear for social sanctions, can one be said to occupy the internal point of view? Perhaps most importantly–what, exactly, does Hart’s origin story of law tell us about the distinctions between law and custom, norm and habit? Pettit takes us through each of these questions as he reconstructs a genealogical account of how pre-normative society (“Prenormitania”) could be imagined to have evolved into Hart’s pre-legal society (“Normitania”). This sheds new light onto Hart’s own genealogy, which of course takes Normitania as a given and focuses on how it develops into a legal society (“Lexitania”).
I suspect a large reason for the relative neglect of Hart’s genealogy is a lack of appreciation for the sophistication of the genealogical method. Pettit starts his article by setting out its virtues and highlighting how radical an approach it was at the time, when Hart was writing in an intellectual world shaped by J .L. Austin. Genealogies offer plausible explanations of how a concept might be imagined to have come about. It presumes that there is such a thing as a point of a concept and seeks to find out what that point is.
Genealogy offers distinct analytical advantages. It gives an account of a concept in terms of characteristics, motivations, and interests that persons are granted to have. Against those granted assumptions, it then provides a functional analysis of the concept in question. As such, genealogical analysis offers a method for deriving what is functional from what is not functional or only functional at a lower level. Its abstract or fictional approach prevents a confusion between functional explanation and actual fact. As Alasdair MacIntyre explains, the genealogist uses fiction precisely so that she can escape the fate of the theorist who is “inescapably imprisoned within metaphors unrecognized as such.” Pettit takes this method seriously, and his article merits careful reading for that reason.
Hart’s genealogy describes pre-legal society as one without legal institutions: no courts, legislature, or officials. In this society, “the only means of control is that general attitude of the group towards its own standards of behavior.” (P. 91.) These attitudes shape “primary rules of obligation,” which include prohibitions on violence, theft, and deception, inter alia. As long as a majority of the pre-legal society accepts the rules, they live in a stable environment of “unofficial rules” resembling our own rules of etiquette. Over time, rules about rules (secondary rules) become necessary and thus a legal system develops.
Pettit offers insight into the nature and origin of those unofficial norms that Hart take for granted: primary rules of obligation. Hart does mention that these rules arise out of communal attitudes, and that they can only be maintained in communities with close ties of kinship, common sentiment, and belief. But how? And why is that important?
Pettit gives a carefully considered answer. Informal rules and the attitudes that shape them arise where cooperation is necessary. Repeated cooperation implies relational regularities, and with them, relational expectations. When a community forms a relatively familiar environment for complex patterns of cooperative regularities, reputation (and expectations it engenders) becomes multilateral. An economy of esteem develops.
Is convergent behavior based on concern for reputation and esteem sufficient to constitute primary rules in Hart’s sense? No. Hart makes it clear that at least some part of his pre-legal society occupies the internal point of view. And, argues Pettit, this means that rule-following no longer has a causal-instrumental character for these individuals. Rather, the rules have been accepted and internalized–they themselves, rather than the consequences of following them, are the source of motivation.
When a norm has been internalized, a community has come to occupy a general attitude toward it. At this point, it becomes possible to distinguish between outsiders and insiders–the external and internal point of view. The internal point of view exists where norms are ratified: community members can confidently avow that all members of their community approve of, and follow, the norm in question. Such avowal implies commitment: members inviting each other to hold them accountable for living by the norm in question. This, argues Pettit, is the internal point of view. An implied consent to being held accountable, rooted in one’s own motivation to follow the rules in question.
This is an important insight. Recent scholarship on the internal point of view has hollowed out the concept to the point where it often amounts to some causal-instrumental calculus by a rational agent. Pettit recovers Hart’s original insight: the internal point of view is that perspective from which a rule itself is the source of motivation. This precludes coarse instrumental rationality from capturing the notion accurately and demands a re-evaluation of our assumptions about rule internalization.
Sep 26, 2019 W.A. Edmundson
The death of John Gardner this summer, at age 54, is a fearful loss. This generous, multi-talented, and much-loved man was a world-renowned figure in several fields of jurisprudence, including not only the general topic of the nature of law but also in the special theories of criminal law, tort, and sexual assault. He was one of the pillars of Oxford’s outstanding strength in the philosophy of law. What irony that one of the last of his writings was titled The Twilight of Legality.
The article itself is something of an elegy for the imminent passing away of a still familiar self-conception of the law, and of the lawyer’s calling, that some will think already archaic. This is a conception of the lawyer as not merely a service-provider, but as public citizen having a special obligation to foster legality as a public good. This obligation in turn entails seeking justice according to law, and not merely justice between parties. John was conscious that his remarks might come across as cultural criticism, but he framed his subject as a philosophical puzzle: how to reconcile the trend toward ever-greater juridification of everyday life with legality, that is, with the rule of law? “Juridification” meaning: the manufacture of laws and legally enforceable non-law norms—especially contracts binding consumers to terms set in boilerplate language dictated by corporations.
At first glance no puzzle is apparent. More laws and more legally enforceable norms means more law to be ruled by, and more law to be ruled by means more rule of law, no? No. Beneath this specious surface, juridification conceals trends whose confluent effect is to erode the rule of law. One of these trends is a side effect of the capitulation of democracies to the demands of corporate power. Governments make a “pathetic display of legislative machismo,” (P. 3) by reflexively criminalizing whatever arouses the moral panic of the hour (so long as, I would add, the newly-to-be-criminalized class is powerless). In evidence, John cites a recent decade in which the UK created an astonishing 3000 novel criminal offenses. This is not as draconian as we would assume, because it is buffered by a counter-trend toward selective under-enforcement. But, as John points out, the counter-trend itself is alarming, and especially so for its insidiousness.
The rule of law, for law-and-order types, demands strict obedience by the public. Where that strict obedience is not forthcoming, then for the law-and-order types among us, officials ought to use lawless means. John rightly rejects this “symmetrical” view. The rule of law makes asymmetrical demands of officials and of citizens (as Rawls, among many others, recognized). Simply put, “We ordinary folk should laugh at stupid laws; officials, poor things, have to uphold them.” (P. 7.) When the law is ridiculous, or, worse, it is unknowable and unmemorable, the rule of law suffers because the law cannot guide us. It cannot rule us, only officials can. But officials, in turn, cannot rule us by law either, despite even their earnest efforts to do so, if too much is left to their discretion.
Of equal concern to John is the accelerating privatization of the domain of private law. This trend is most obvious to us when we agree to “click-through” to access on-line resources that would otherwise be closed to us. In the process of “agreeing” we waive rights too numerous and extensive even to want to know about; and the rule of law suffers, as Margaret Radin and Judith Resnik have argued. John focuses on one aspect of this: the take-it-or-leave-it consignment of consumer disputes to private arbitration. This kind of privatization is especially insidious when, as is typical, it uncouples dispute resolution and judicial oversight. Here, the familiar Diceyan objections to droit administratif—as judicially unsupervised bureaucratic lawmaking—are amplified by the fact the corporations that insist upon isolating legal power from legal oversight do so solely to maximize profit. The parties may benefit from the legal enforceability of private arbitral outcomes but the public good of legality goes unprovided. There is no common law, no judging with an eye to wider consequences, and no working pure of the legal doctrines that ought to guide the interpretation and application of contract terms.
John deftly debunks the libertarian notion that the law is coercive whenever it interferes with private orderings except when it enforces the supposed terms of private orderings; and he summarizes:
any effect that the law gives to contractual norms should be an effect that the law, through the courts, ultimately get to determine. And that implies, I suggest, no ouster of the courts’ final jurisdiction over questions of law arising under the contract, including its legal construction, which is an integral part of the determination of its legal effects. (P. 8.)
The global corporate behemoths are not (yet?) so far along on their way toward becoming outright Hobbesian Leviathans that they need not appeal to public governments to enforce their legal rights. Their ideal is “juridification without legality,” which can be seen as another aspect of what Elizabeth Anderson calls private government, and what Samuel Freeman counts as feudalism: the appropriation, for the purpose of extending private dominion, of the normative forms of public power.
What do these trends mean for those who would become lawyers, and those who train them? The germ of the article is his Irvine Lecture, delivered in 2015 to faculty and students at Cornell Law School. John concludes with reflection upon his career as a barrister, during which interval lawyers came to be thought of as a pricey category of service-providers. To invoke the lawyer’s special responsibility to assure “access to justice” is the easier part of tailoring lawyers to the service-provider template: “Much harder to integrate into the service-provider model…is our special responsibility, as lawyers, for upholding the rule of law. That is because the rule of law is for the most part a public good in which our clients may well have relatively little individual interest.” (P. 16.) Winning strings of victories for underdogs is not enough:
Today’s young lawyers…have a “special responsibility for the quality of justice” going beyond any that the original drafters of the Bar Model Code of ethics could have anticipated. For they face a world more hostile to legality, and yet more wedded to juridification, than any we have seen before. (Id.)
Tackling the special “evil of privatization” manifest in the displacement of legality by juridification is now an indispensable task of lawyering “in the best sense”—a task left to us to pursue without John Gardner along to guide us.
Aug 12, 2019 Barbara Levenbook
Everyone agrees that law has a conduct-guiding function. Moreover, most legal theorists assume that this conduct-guiding occurs, or is supposed to occur, by providing reasons for action. This very readable book is about the kind of reasons to comply with the law that law can provide and—under favorable conditions—does provide. As most of us know, officials applying legal requirements largely act as if these requirements trump (nearly) everything else for law subjects. In terms made famous by Joseph Raz, they treat law as giving rise to pre-emptive reasons to comply. These are reasons that (a) are ordinary reasons in favor of conduct and (b) exclude some opposing reasons, in the sense that they are not to be considered in a law subject’s practical reasoning. But this is not how civil disobedients and otherwise law-abiding motorists treat many legal requirements. (The latter, notoriously, consider what appear to be excluded considerations, such as the speed of traffic and the apparent likelihood that speeders will be apprehended, to reach decisions about obeying the posted speed limit.)
This gives us two views about what sort of reasons law (potentially) provides for action: (1) reasons that pre-empt competing reasons, and (2) reasons that compete with others in terms of weight. Gur carefully criticizes the two positions as inadequate before developing a refreshingly different sort of answer. The reader will be surprised to learn what this difference implies about the law and its authority.
In a nutshell, according to Gur, what is wrong with the first, pre-emption model is that it provides the wrong answer in cases in which officials create a clearly very immoral directive, and in cases in which they create a directive that has a clearly very immoral application. In such situations, the law subject should not comply. This is true even when the legal officials have legitimate authority and are competent. Moreover, one cannot rescue the pre-emption model by arguing that all moral considerations are not excluded by—and therefore, not pre-empted by— legal directives (or by these sorts of directives). Gur contends that it is only by reasoning from the (entire) balance of reasons that instances of grave immorality in directive-application can be identified by the law subject.
In brief, what is wrong with the second, weighing model is that its method of reasoning is highly susceptible to a cognitive and motivational problem that legal regulation (ceteris paribus) isn’t. Gur contends that social problems are caused by the fact that people are fallible in judging the balance of reasons, in part because people commonly have cognitive biases. Law is less vulnerable to the biases— because of features such as the generality and prospectivity of its directives—yet it can solve these social problems. These facts help justify using legal regulation to guide conduct and provide a reason why the law subject should not rely on an individual assessment of the balance of ordinary reasons for (and against) compliance with a legal directive—such an assessment can too often be mistaken.
Gur defends a third position he thinks of as a middle ground that he calls “the dispositional model.” This model treats motivation as bearing on an agent’s practical reasons for action because, as Gur puts it in his last chapter “the problem is partly motivational,” so its solution must be also partly motivational. (P. 217.) According to the dispositional model, reasonably just and well-functioning legal systems give rise to reasons to adopt a certain general normative attitude toward the legal system. (This is in addition to the ordinary reasons that legal requirements sometimes give rise to.) The attitude in question is both settled—“reasonably stable,” Gur says—and motivating. This attitude is composite; behaviorally, it shows itself in, or is composed in part of, a disposition to comply with the law. This disposition is deep-seated, yet defeasible in its force. Someone with it is persistently somewhat resistant to reasons for non-compliance, but never entirely.
Gur argues that his is the right position to take, given the likelihood of a law subject’s biases and the structural features of law in a system that meets certain conditions. We should adopt this particular normative attitude because its disposition averts some error in practical reasoning—in the kinds of good legal systems Gur has in mind. In other words, in legal systems meeting certain conditions, it is likely that we ought to comply. The disposition pulls against our contrary cognitive biases and tends to make us reach this conclusion. Yet our biases and our fallibilities in practical reasoning do not give us reason to go so far as to exclude opposing considerations in our practical reasoning when faced with legal demands.
Gur further argues that this distinctive disposition cannot be replaced by ordinary moral dispositions. You don’t have the normative attitude in question if all you have are moral attitudes such as respect for dignity, a commitment to justice, and sensitivity to the suffering of others. His argument is that reliance on moral attitudes may not combat biases against compliance with mala prohibitum directives, and that moral disagreement would undermine the “necessary compromises” law makes.
Space does not permit me to comment on his interesting discussions on related topics—such as an extended critique of Raz’s Normal Justification Thesis for authority and what research reveals about why people obey the law.
I think Gur is very largely correct in his major claims. And if so, it matters; for it raises a problem about the legitimacy of actual legal systems, such as our own. For: (a) legal officials act as if law subjects have reasons to comply even when the legal system isn’t reasonably just and well-functioning (and even when officials know or suspect this fact); and, as I mentioned at the outset, (b) legal officials act as if legal requirements create pre-emptive reasons for law subjects.
Jul 11, 2019 Brian Tamanaha
A sure sign of a terrific book is that various readers can agree that it is illuminating and impressive but identify different aspects of the book as its most insightful and important elements. Contrasting positive reactions are a testament to the richness of a book. That is what struck me upon reading Sean Coyle’s JOTWELL review of Roger Cotterrell’s Sociological Jurisprudence. I second Coyle’s praise for this “very interesting, thought-provoking, and beautifully written book.” And I concur with his assertion that all jurisprudents will profit from reading it.
This review provides an account of what makes Cotterrell’s sociological jurisprudence so different from other contemporary jurisprudential works. While Coyle’s title, “A New Jurisprudence?,” suggests that Cotterrell has a novel take on jurisprudence, he does not explain precisely what makes it new. That is what I focus on in this review. I encourage readers to examine Coyle’s review. He concisely describes the three-part structure of the book—the role of the jurist, transnational regulation, and legal values in sociological perspective—while raising probing questions about each part. I will therefore forego providing a descriptive overview of the book.
To get at what’s new about his jurisprudence I will first say what is not new. His extensive discussion of transnational law and regulatory matters in Part II is a welcome correction to jurisprudential neglect of these topics. Cotterrell frames his analysis in terms of legal pluralism, and rightly argues that the plurality of legal and regulatory forms on the transnational level challenges long held assumptions about the nature of law. These are important issues, but this is not what distinguishes Cotterrell’s sociological jurisprudence. Legal pluralism and transnational law are extensively taken up in Nicole Roughan’s and Andrew Halpin’s In Pursuit of Pluralist Jurisprudence (2017), which includes essays by a stellar cast of contributors. Cotterrell’s lead theoretical chapter in Part II is also a chapter in their collection. Roughan and Halpin claim that pluralist jurisprudence is a new jurisprudence. Whether that claim is correct is not relevant here—the point is that this aspect of Cotterrell’s book is not unique.
The combination of two distinctive elements make Cotterrell’s sociological jurisprudence unlike any other. The first element is that Cotterrell links jurisprudence to the work of jurists in a way that renders it normative as well as narrow. The second element is that Cotterrell incorporates social science within jurisprudence to help fulfill its normative task. This combination is what makes it normative sociological jurisprudence, as the title to this review indicates. There are versions of normative jurisprudence, Finnis’s natural law, and there are versions of social scientifically infused jurisprudence, like my realistic theory of law, but I know of no other contemporary jurisprudence that combines the two. Roscoe Pound’s sociological jurisprudence also combined the two, so in that sense Cotterrell’s sociological jurisprudence is a throwback, though his approach is very different from and far more sophisticated than Pound’s.
Now I will fill out these two elements to provide a sense of his theory. His starting point is jurists—legally trained individuals who pursue knowledge about law—whose specific role “is that of maintaining the idea of law as a special kind of practice and enabling that idea to flourish. One might say that the jurist’s role, on this understanding, is to safeguard and promote law’s general well-being.” (P. 32.) Drawing on Radbruch, Cotterrell indicates that law’s well-being depends on maintaining a balance between three aspects of a value structure within law: 1) justice, 2) order, or security and certainty, and 3) purpose, or expediency or utility. (P. 38.) The first two are primary, for without order there can be no justice and without justice order can be tyranny. Purpose is taken from ideas, values, and interests circulating in a given society. The jurist’s job is to see that law maintains all three.
Cotterrell ties jurisprudence to jurists: “jurisprudence is properly seen as an important body of thought that aims at exploring, aiding, and developing the prudentia of jurists.” (P. 45.) To serve this role, jurisprudence must be empirically grounded, informed by social scientific research on the operation and consequences of law and on social values. Jurisprudence in his account is not a discipline or field, but rather “a patchwork of insights related to the idea (and ideal) of law as a practice of regulation to serve social needs and social values, as these are recognized in particular times and places.” (P. 45.)
Since the role of jurists is normative committed toward law’s well-being, yoking jurisprudence to facilitate the work of jurists renders jurisprudence normatively committed. It bears emphasis that this is Cotterrell’s view of jurisprudence generally, not just sociological jurisprudence. (P. 13.) “The term ‘sociological jurisprudence,’ ideally, should indicate no more than jurisprudence in general that is aware of its responsibility to link law’s enduring value commitments to a systematic, empirically grounded understanding of the diverse contexts of legal experience.” (P. 13.) He grants that theoretical approaches not dedicated to serving jurists can also be informative, like the philosophy of law and social legal theory, but asserts that jurisprudence should be reserved for this narrower role.
Social scientific research can shed like on values in relation to law in multiple ways: identify the values people hold and their consequences, explain why value debates and choices matter in given social contexts, guide the implementation of value choices, reveal the likely consequences of value choices, show how value choices can benefit society, and identify moral principles necessary to stable relations. (Pp. 172-203.) This information—provided by sociology, anthropology, and other empirical disciplines—should be integrated into jurisprudence and utilized by jurists in their effort to advance the well-being of law. “Sociological jurisprudence is distinguished from sociology of law, according to the approach of this book, because of jurisprudence’s explicit commitment to the pursuit of values through law, indeed its recognition of values as at the heart of legal practice and experience.” (P. 226.)
Cotterrell’s book contains much more of interest and value than this brief account can relate. What I have conveyed is the core of what makes his theory not only unique but also essential reading for jurisprudents. He is sounding a call to all jurisprudents to recognize that we have a responsibility for maintaining the good of law while insisting that the way to carry out this responsibility is to be informed by the best available empirical research. In many countries around the world today, including the United States, there appears to be increasing pressure on and threats to the integrity and functionality of law. That is why Cotterrell’s message, although unorthodox and against the grain of jurisprudence today, should be taken seriously.
