Yearly Archives: 2019

The Semantics and Pragmatics of Legal Statements

Jun 18, 2019 Michael GreenAdd a Comment

When people talk about the law what, if anything, are they talking about? What do their sentences mean? Much of the philosophy of law has revolved around this question. In this essay, Finlay and Plunkett offer a novel answer—and a plausible reading of the answer proposed by the foremost Anglophone philosopher of law, H.L.A. Hart.

In The Concept of Law, Hart draws a distinction between external and internal legal statements. External legal statements describe people’s beliefs, attitudes, and behavior concerning legal standards. An example is “In England, they accept as law what the Queen in Parliament commands.” Internal legal statements (ILSs), by contrast, apply legal standards and usually put their conclusions using normative language.¹ An example is “You (legally) ought not drive over 55 m.p.h.”.

The semantics of external legal statements is unproblematic. But ILSs are a challenge for legal positivists, like Hart, who hold that the existence and content of the law ultimately depend solely upon non-normative social facts about a community—in particular, facts about the beliefs, attitudes, and behavior of the community’s officials. If positivism is correct, why aren’t all legal statements external? In using normative language, ILSs appear to give support for non-positivist (particularly natural law) approaches. ILSs seem to describe normative facts, that is, facts that non-contingently give one reasons for action.

Positivists often respond to this problem by borrowing from semantic accounts of moral statements that deny that these statements describe normative facts. If moral statements can employ normative terms without describing normative facts, the same thing can be true of ILSs. The most commonly borrowed account is expressivism.

Consider the sentence “Hurrah John!” In uttering this sentence, one does not attribute a property (say, hurrahness) to John. If one did, the sentence would be either true or false, depending upon whether John had that property. But “Hooray John!,” although meaningful, is neither true nor false. Rather than describing John, it expresses the speaker’s positive attitude toward John. Its meaning can be understood in term of this expressive role.

Many expressivists understand the meaning of the normative terms in moral statements (like “good”) similarly. These terms express the speaker’s affective states, rather than attribute normative properties to the world.² An advantage of this approach is that it can explain in an acceptably naturalistic fashion why someone who makes a moral statement thereby takes herself to have a reason for action: why someone who says “Keeping one’s promises is good” takes herself to have a reason to keep her promises. Her reason is the affective state expressed, not the presence of some mysterious normative state of affairs.

The prevailing reading of Hart is that he employed expressivism in his account of ILSs.³ An ILS’s meaning is tied to its role in expressing the speaker’s affective state, in particular, her acceptance of the foundational rule of the relevant legal system (which Hart calls its rule of recognition).⁴

But expressivism has a serious difficulty, commonly known as the Frege-Geach problem. If the meaning of “good” is tied to its role in expressing the speaker’s positive attitude, how are we to understood its meaning in non-assertoric contexts—for example, when one asks, “Is keeping promises good?,” or says,“ If keeping promises is good, then it is good for Joe to keep his promises.” If expressivism were correct, these sentences should be nonsense, the way “Is it the case that Hurrah John!?” or “If Hurrah John!, then…” are. Expressivists have tried to solve this problem, but whether they have succeeded is questionable.

The same point applies to ILSs. If the meaning of “ought” in “You (legally) ought not drive over 55 m.p.h.” is tied to its expressing the speaker’s acceptance of the relevant rule of recognition, how are we to understand its meaning in the sentences, “Is it the case that one (legally) ought not drive over 55 m.p.h.?,” or “If one (legally) ought not drive over 55 m.p.h., then Joe (legally) ought not drive 60 m.p.h.?” Clearly these sentences aren’t nonsense.

The view that normative terms describe normative facts, by contrast, does not suffer from the Frege-Geach problem. Unlike expressive sentences, descriptive sentences (such as “The cat is on the mat”) are generally understood as having two elements to their meaning: their propositional content (that-the-cat-is-on-the mat) and the way that the content put forward or used. In “The cat is on the mat” the proposition is put forward as an assertion. But in other sentences the same propositional content can be put forward non-assertorically.

Recently, philosophers working in metaethics have offered positions that share with expressivism the view the moral statements do not describe normative facts, but deny that the semantics of such statements is expressivist. The relationship between making a moral statement and having a particular affective state is pragmatic rather than being tied to the statement’s meaning. Stephen Finlay’s quasi-expressivism, which Finlay and Plunkett apply to ILSs in this paper, is an example.

We are all familiar with the use of “ought” in a hypothetical imperative—such as when one says to the failed murderer, “You ought to have used poison, rather than a gun.” Such statements can be understood as describing a probabilistic relation between an act (using poison) and the realization of an assumed end (killing someone). Philosophers commonly claim that this use of “ought” is semantically distinguishable from its use in moral contexts. Moral norms impose categorical imperatives—they provide us with reasons for action that exist whatever our inclinations. It is these categorical norms to which the term “ought” in moral statements refers. But Finlay adopts the surprising position that the semantics is the same in both contexts. A moral statement—such as “You ought to keep your promises”—describes a probabilistic relationship to an assumed end.

This isn’t to say that there is no connection between moral statements and ends. But Finlay argues that the connection is pragmatic, rather than following from the statements’ semantics. Under normal circumstances, speaking of a probabilistic relationship to an end would make a helpful contribution to a communicative exchange only if the speaker and hearer favor the end. By uttering the sentence about the probabilistic relation, the speaker will therefore pragmatically express that she favors that end—which explains why someone making a moral statement takes herself to have a reason for action. But this expression is not part of the meaning of the speaker’s moral statement: she can appropriately use the sentence without favoring the end at all.

And what if it is clear that the listener does not favor the end? What if one says “You ought to keep your promises” to someone who manifestly does not care about keeping his promises? It is here that most philosophers would say that the moral statement must be describing normative facts. That is the only way to explain the statement’s categorical nature—its applicability to the listener independent of her inclination.  But Finlay again relies on pragmatics. He argues that to speak as if an end is accepted by one’s listener when it clearly is not is a rhetorical way of making a demand that it be accepted. (Something analogous goes on when one says to one’s child, “You will take out the trash.”) Semantically, the statement remains a description of a probabilistic relation to an assumed end.

I am quite skeptical about whether quasi-expressivism is an adequate account of moral statements. But it is very promising when applied to ILSs, as Finlay and Plunkett do in this essay. Under their account, ILSs state that a certain relationship to the relevant rule of recognition exists. For example, when one says, “It is the law that one ought to drive 55 m.p.h. or less,” one asserts a proposition that the rule that one ought to drive 55 m.p.h. or less satisfies the rule of recognition of the relevant legal system (say, California). That proposition is either true or false as a matter of descriptive fact.⁵ Because ILSs have this propositional content, the same content can occur in non-assertoric contexts. The Frege-Geach problem is solved.

Notice that although ILSs are descriptive, there remains a relationship between making an ILS and taking oneself to have a reason for action. But the relationship is the result of pragmatics, rather than following from the ILS’s semantics, as the expressivist claims. This pragmatic approach has an unexpected payoff: it can easily explain the many circumstances in which someone who makes an ILS lacks any positive attitude toward the rule of recognition. Many ILSs are, as Joseph Raz has put it, detached. And yet a detached ILS and an ILS made by a committed participant in a legal system seem to have the same meaning. Finlay and Plunkett’s quasi-expressivism explains why.

In addition to offering quasi-expressivism as their own account of ILSs, they also offer it as Hart’s view. Although I cannot pursue the details here, I think they are clearly right. Most notably, their reading can make sense of the fact that Hart was probably aware of the Frege-Geach problem before writing The Concept of Law⁶ –something that makes an expressivist reading of him awkward.⁷

Repackaging Normativity

May 10, 2019 Andrew HalpinAdd a Comment

The subject of legal normativity has attracted a great deal of attention recently. The collection in which Tria Gkouvas’s chapter appears does much to display the variety of perspectives, themes and issues that inform the current debate. Or, perhaps, current debates, given that a number of positions being expounded here and in other works on normativity over recent years tend to fix the normativity debate with a particular character prior to making a contribution to it. Gkouvas’s chapter is particularly stimulating in seeking to develop an approach that cuts across different perspectives and joins together different roles of normativity in what he presents as a “standard of normative robustness.” (P. 17.)

This approach is styled the “metric approach” precisely because it can be used to measure the normative robustness of quite different legal theories. It offers to do this by concentrating on “the Nexus space of reason-giving facts,” (P. 18) in which the different roles of action-guidance, evaluation of action, and explanation of action cohere in a single fact (Pp. 18-19). Gkouvas’s notion of Nexus is borrowed from Joseph Raz’s use of the term in From Normativity to Responsibility to indicate the connection between the normative force of a fact and its explanatory potential in a normative/explanatory nexus. Gkouvas amplifies this nexus as covering the three normative roles just mentioned of guidance, evaluation, and explanation; corresponding to “three distinct component functions (metaphysical, evaluative and explanatory).” (P. 18.)

Gkouvas stresses (P. 21) that the use of the Nexus is to measure normative robustness within a theory of law and not to investigate the extent to which legal facts for their existence depend on possessing normative force. By this he means to indicate that the Nexus is neutral as between positivist and non-positivist theories of law. What the Nexus does measure in terms of normative robustness is then the ability of a particular theory to deliver legal facts that can fulfill the three roles, or the three “component functions.” After detailed investigation, he concludes that the theories of Raz and Greenberg do, whereas those of Dworkin and Shapiro amount to “deviant” theories that may nevertheless be measured by the Nexus. (P. 31.)

Within the detailed examination of both compliant and deviant theories, we are given further insights into how Gkouvas understands the three roles/components within the Nexus. Of particular interest are the different ways in which he sees Dworkin and Shapiro deviating in “need[ing] supplementation by extra-legal facts in order to account for the performance of one of the three functions that constitute a Nexus reason.” (P. 31.) Dworkin falls down on the second, in not providing “a robust evaluative role for legal facts” while Shapiro on the third in failing to deliver “the explanatory potency of legal plans.” (P. 36.)

As devised and utilized by Gkouvas, the metric approach accordingly provides a novel framework in which to assess different characteristics of legal theories, beyond the familiar oppositions of positivist/non-positivist. It also stimulates further lines of inquiry on legal normativity. The neutrality he claims for his approach is clearly one that is premised on “answer[ability] to the Nexus standards” (P. 31), yet the Nexus itself is regarded as governing theories that relate legal facts to moral and social facts in different ways (P. 17), so the metric approach is extensive in its reach. Its fuller implications merit further reflection. Among them is quite possibly an interesting angle on the sui generis perspective on legal normativity, which has been featured in recent writing. If the satisfaction of normative robustness by a theory is dependent on not requiring supplementation by extra-legal facts, but the legal facts can exist “atop a stratified ontology featuring moral and/or social facts,” (Id.) it seems to follow that a robust legal normativity without the need for supplementation may nevertheless incorporate moral and social facts into a fully legalized normativity. This holds out the prospect of a sui generis understanding of legal normativity enjoying a richer profile than might at first be thought.

The Neuroscience of Responsibility

Apr 17, 2019 Dennis PattersonAdd a Comment

The interface between law and neuroscience has been a continuing source of interest for lawyers and philosophers. Many scholars have hailed developments in neuroscience as singularly transformative for our understanding of human agency. Further—it is argued—once we understand human agency from the neuronal point of view, we will be forced to alter the ways in which our practices of responsibility—especially law—regulate human conduct.

In the view of some scholars, claims for the transformative impact of neuroscientific developments on law are overblown. Taken to an extreme, those who trumpet the transformative effects of neuroscience on law have sometimes been found to suffer from the malady Stephen Morse labels “Brain Overclaim Syndrome.” Labelling the syndrome a “cognitive pathology,” Morse argues that claims made by those in the grip of the pathology make claims that cannot be conceptually or empirically sustained.¹

The authors of this provocative and interesting book make strong claims for the importance of neuroscience for our practices of responsibility. Their strongest conceptual claim is one they make often. In fact, the claim is the central thesis of their book. When it comes to responsibility assessment, the authors argue that the brain itself—specifically its executive functions—are “the seat of human responsibility.” (P. viii.)

The first of the book’s eleven chapters begins with a description of three recent high-profile criminal cases where the state of the defendant’s brain was at issue. The most well-known of the three is that of Anders Brevik. In July 2011, then 32-year-old Brevik killed 77 people—including many youths on the island of Utøya—using both explosives and automatic weapons. Alternatively found to be insane and then sane, Brevik’s case raises the question of the relevance of mental illness to responsibility and, thus, punishment. Mental illness has always been treated as a mitigating factor in both culpability and punishment assessments. The authors want to go beyond conventional approaches to these issues with the argument that “specific facts about the brains of the agents discussed in these cases…strongly inform assessment of their culpability.” (P. 8.)

It is important to be clear about just what the authors are claiming when it comes to the relationship between facts about the brain and normative evaluations of conduct (e.g., the criminal law). No one disputes the fact that neuroscientific assessments can and should impact responsibility assessments. The usual form such assessments takes are pleas for mitigation at the sentencing stage of criminal proceedings. While the authors take no issue with these conventional approaches, their central claim is much stronger than one commonly encounters in the literature. They write: “Neuroscience is both relevant to responsibility and consistent with our ordinary ‘folk’ conceptions of it. Evidence from cognitive science and neuroscience can illuminate and inform the nature of responsibility and agency in specific, testable ways.” (P. 12.)

The authors develop their position with an account of “executive functions” (responsibility for action presupposes that the agent in question is possessed of a MWS (minimal working set of executive functions)). After a review of the current neuroscience of executive function (Chapter 2), the authors integrate executive function with reasons responsiveness (Chapter 3) and legal theory as well as criminal law (Chapter 4). Chapters 5-7 are an extended engagement with the work of Neil Levy, who developed a theory of responsibility out of a theory of consciousness. Chapter 8 applies the authors’ theory to the special problems of juvenile responsibility. Chapter 9 considers insanity and Chapter 10 takes up punishment theory. The book ends with a chapter on future work and what issues remain open for further development.

So what are executive functions and why are they so important? Executive functions are usually thought to be located in the prefrontal cortex of the brain. Recent work in neuroscience suggests that “all executive functions (or at least a core set of them) are accomplished by a single, unified brain network, the frontoparietal cognitive-control network (working together with adjunctive areas, some of which are unique to the particular executive process involved).” (P. 21.) They regulate a variety of human behaviors, most importantly perception, memory, and emotion.

The language of moral assessment—both everyday terms and specialized vocabularies like the criminal law—are disparaged by reductionist hardliners (e.g., Patricia Churchland) as mere “folk psychology.” Reductionist physicalists want to replace folk psychological terms like those employed in the criminal law with the language of science, specifically neuroscience. The motivation for this approach is the belief that folk psychological terms refer to nothing in the world. For the naturalist/reductionist/physicalist, because all behavior is the result of causal forces alone, only the language of science is appropriate in ascribing responsibility for action. Folk psychological terms are dismissed as vacuous and non-referential. They have no traction in the real world.

The authors describe themselves as naturalists and physicalists, but they wear their philosophical positions lightly. None of the arguments in their book turns on adoption of a particular metaphysics of action or responsibility. Nowhere is this more apparent than in their treatment of the relationship between the folk psychological vocabulary of the criminal law and neuroscientific facts about executive functions. Before further discussing this important aspect of their argument, let me deal with a preliminary issue.

Many philosophers claim that the criminal law presupposes free will. The argument is straightforward. The law punishes agents for wrongful acts committed with a guilty mind (mens rea). Agents choose whether to commit criminal acts through the exercise of individual will. The law assumes exercise of will is a matter of free choice. Agents decide (choose) whether to commit bad acts. The law punishes bad acts committed with the requisite mental state. As such, law presupposes free will.

Some philosophers claim that the criminal law rests on a mistake: there is no free will. All behavior is caused. Human action is not the result of individual choice as we are all just nodes in a long causal chain. The experience (i.e., the feeling) that we are in control and making choices is just an epiphenomenal illusion. We are no more in control of our behavior than a robot.

The authors describe themselves as “compatibalists,” meaning “that despite the laws of physics and our increasing ability to understand the mechanistic, causally determined nature of the physical underpinnings of human actions and decisions, we are still responsible for such actions and decisions….” (P. 75.) Nevertheless, the authors acknowledge the philosophical sophistication of some of the arguments of determinists. They reply with a discussion of the case of “Bert.” Bert forgot that he had custody of his kids for the weekend and left for Las Vegas. The kids spent the weekend alone in Bert’s apartment and he was arrested for child neglect. Bert’s executive capacities were all working (he possessed what the authors describe as “diachronic agency”): he had no excuse. He was responsible for the kids and he failed to meet that responsibility. Hard determinists want to argue that Bert had no choice in the matter: his genes, his environment, and his brain all made him act as he did. The authors spend little time with the arguments of hard determinists, likening the position to hardcore skepticism: “Nothing—no causal powers available to persons within our universe—could satisfy the free will skeptics.” (P. 209.)

How do the authors get from facts about the brain (i.e., executive functions) to responsibility assessments? Recall that the unique claim made by these authors is that neuroscientific facts can inform responsibility assessments, not just by providing facts to be taken into account but by setting standards for responsible conduct. In the case of Bert, they argue, he was possessed of all the cognitive capacities necessary to conform his conduct to the law. He could have trained himself to be more aware of his schedule. He could have given himself reminders. It was not that difficult for Bert to habituate himself to be a responsible agent. Bert has no defense to the charge of neglect.

A critical comment on this approach to responsibility is to agree that one cannot be held responsible for action if one lacks the neuronal faculties necessary for proper conduct. This is uncontroversial. But the authors of this engaging book make a further claim. They claim that these very capacities themselves set the standard for responsible action. Such a claim looks dangerously close to a violation is the is-ought fallacy. Selim Berker—in a sublime article on this point—argued that no scientific facts can generate normative consequences. Neuroscientific facts, he argued, are normatively inert.² Thus, sentences like this one are worrying: “Evidence from cognitive science and neuroscience can illuminate and inform the nature of responsibility and agency in specific, testable ways.” (P. 12.)

It is one thing to identify cognitive capacities necessary for action and to then use neuroscientific as well as behavioral evidence of their presence or absence to make responsibility judgments. It is quite another thing to suggest that the neuroscientific evidence for those behavioral capacities and neuroscientific evidence generally provide the criteria for assessments of responsible conduct. To the extent that the latter claim is made, such a controversial move requires further argument, lest one attract the criticism of Brain Overclaim Syndrome.

This is a thoroughly engaging and well-written book. The authors survey much of the responsibility literature and provide engaging discussions of the leading positions. Their suggestions for the use of neuroscientific evidence in various contexts (e.g., assessment of minors) is particularly persuasive. This is a book to be read by anyone with an interest in law and neuroscience, responsibility, criminal law, and ethics.

“Who Do You Think I Am?” or What it Means When We Lose Our Privacy

Mar 14, 2019 LaToya Baldwin ClarkAdd a Comment

In the spring of 2018, we learned that Facebook, the technology company we cannot seem to get away from, allowed a political analytics group to obtain Facebook users’ data. In late 2018, Facebook admitted another, even more egregious intrusion. The New York Times showed us how the technology company gave millions of users’ personal data to other companies. It also allowed other companies to read the content of personal messages made on the platform, messages users assumed to be private. CEO Mark Zuckerberg testified before Congress and Facebook ran an apology ad campaign, including airing an apology video during the NBA playoffs. In a Facebook post, Zuckerberg pledged: “We have a responsibility to protect your data, and if we can’t then we don’t deserve to serve you.” In doing so, Zuckerberg signaled its users’ importance, and their importance required privacy protection. In other words, Facebook acknowledged that when it allowed a privacy violation, it inherently disrespected its users.

In An Expressive Theory of Privacy Intrusions, Craig Konnoth explicitly argues what Zuckerberg implicitly acknowledged: privacy intrusions involve more than what is being taken or how the intruders use that information. Intrusions express something about the breacher and the breachee beyond the material consequences; according to Konnoth, the social meaning of privacy intrusions suggest the victim’s lower social status, a form of “disrespect.”

In this article, Konnoth makes two main contributions that can help us understand the problem of privacy breaches. First, he argues that the very act of information intrusion harms, even when that information is relatively benign, does not stop actors from acting, or where the intruders protect that information against others. “Instead,” Konnoth argues, “the very act of intrusion sends a message about the values society holds dear and the status that particular individuals have in society.” (P. 1535.) He grounds this argument in expressive theories of law, placing privacy intrusions within theories of how state action communicates certain values. For example, he shows how the Supreme Court’s Fourth Amendment jurisprudence acknowledges these expressive purposes of searches: when schools conduct drug tests on student athletes, the search conveys an important value, the “abhorrence of…drug abuse.” (P. 1545.) In addition, privacy intrusions say something about their victims. For example, when a school drug tests athletes, the search expresses a belief that students are inherently immature and unable to make good choices.

Konnoth’s second contribution closely follows the first. He argues that when privacy intrusions affect a particular group, the intruder communicates a belief in the relatively lower social standing of that group vis-à-vis other groups not similarly affected. For equality purposes, Konnoth argues that rather than lower social standing triggering the privacy intrusion, the intrusion itself can also signal to others to regard the group as having lower social standing: “[P]rivacy intrusions are often combined with other forms of status expression…that specifically identify certain groups as undesirable.” (P. 1561.)

Of course, Facebook is not the government, the subject of Konnoth’s piece. Facebook is a private entity engaging in the intrusion, thus while its actions are disrespectful, it does not have the social-status-generating power that the law does. It cannot grant social status, while the government can. Konnoth argues that if the government legally could do what Facebook did, it would create a unique status problem because when the government disrespects, it marks social status more generally. And it also marks those who intrude with impunity as having higher status.

What to do? Konnoth offers three solutions. The first and third are familiar: end the intrusion and apologize for the intrusion. But it is his second solution that brings the article together: change the privacy norms so that when privacy breaches occur, they don’t feel like intrusions at all. A breach that does not feel like an intrusion likely will not trigger feelings of disrespect. Indeed, so-called “data breaches” are becoming ubiquitous in our modern society, and fears of government spying are widespread. From companies whose job it is to monitor our most personal financial information (Equifax) to technology companies like Facebook, such breaches have already led many of us to feel that there is no such thing as privacy anymore. Furthermore, we have gotten so used to the breaches—what is one or a thousand more?

If Konnoth is right, maybe having more breaches, not fewer, is not such a bad thing.

A New Jurisprudence?

Feb 11, 2019 Sean Coyle1 comment

This important and impressive new book by Roger Cotterrell represents a new and original perspective on legal theory, building considerably upon the author’s previous, justly celebrated, work. It calls for a “sociological jurisprudence” (not a mere sociology of law) and for a reorientation of jurisprudential study as a form of social inquiry. The book is not likely to please all jurisprudential scholars, but all should read it and will profit from doing so.

The book is divided into three parts: first, concerning the ‘juristic point of view’; second, transnational legal theory; and third, on “legal values.” I will very briefly explore each in turn.

The first part of the book is devoted to the argument that there is not one single idea of “law” that holds true of all forms of legal order at all times and places. Instead, the inquiry must be an empirical one, generalizing a model with which to describe a great array of regulatory systems. This is possible if one begins one’s theorizing from the perspective of the “jurist,” addressing specifically juristic concerns. For the jurist’s responsibilities and characteristic modes of action are likely to be different in different social orders: in a tyranny, a bureaucratic state, a theocracy or a police state. (P. 34.)

It is nevertheless possible to ask, if the instances of regulation are so various and resistant to being described by one single model, how is one to distinguish between one empirically grounded generalization (which will only fit a percentage of actual regulatory systems) and another? Moreover, the book does not, it seems to me, adequately explain what a “jurist” is, beyond referring to it as an ideal-type. (P. 43.) If jurists’ responsibilities differ within different systems of regulation, how, again, can we distinguish jurists from non-jurist officials who govern otherwise than through law? It would be interesting to compare this idea with Finnis’s viewpoint, which also starts by considering the formation of concepts for sociological inquiry and develops (borrowing from Aristotle) the idea of “focal” concepts.¹. Perhaps a second edition of the book might challenge this viewpoint.

The second part, on transnational legal theory, argues that many of the systems that have formed to address transnational legal problems do not readily fit within the models of legal order that are prevalent within domestic jurisprudence. Rather than categorizing all such systems as non-legal (for they are often treated as legal by participants in those contexts), Cotterrell argues that it is our definition or understanding of law that should shift and evolve. Indeed, Cotterrell believes that the presence of such systems indicates that there may be no timeless “essence” of law or legality by which we can measure social systems, to determine whether or not they embody distinctively legal governance. Again, many legal philosophers might reject this idea, but Cotterrell’s sophisticated defence of the idea should at least oblige philosophers to look at and understand anew their theories and underpinning assumptions. Indeed, this part of the book will be of intense interest not only to jurisprudential scholars, but also those working in and around such transnational systems of regulation and “soft law.”

The final part of the book is an extended consideration of “legal values.” Here, the book seems to occupy the same ground as that of legal positivists, for it argues that the values that animate the law (such as justice and security) are not universal but time-bound and place-bound; and that we must therefore resort to what the book calls a “client-orientation” or perspective. Cotterrell writes:

If values are important, it has to be asked how they are important to those whom legal experts address…How do, for example, values of justice and security vary in significance and meaning for different client groups? How does the balance between such values vary in the aspirations and expectations of the legal expert’s clients and audiences—in various public or official perceptions; in certain social groups as contrasted with others? How does it vary in the perspectives of various agencies of the state or in the regulated citizenry, among academic audiences of students and scholars of law, or among diverse popular audiences outside the academy? And how far can any legal expert speak to society at large as the ultimate client or audience? (P. 22.)

Presumably then, this (empirical) perspective must be value-neutral and descriptive? But this leaves open the question how we are meant to elicit these values, even supposing particular “client groups” all hold the same values. Furthermore, if the legal expert’s “clients and audiences” are indeed diverse, how (aside from armchair sociology) are we to go about finding out the values of agencies, citizenry, students, scholars, and popular audiences? Not with such a blunt instrument as voting; but even a careful survey requires the surveyor to choose certain questions and not others, to structure a survey in this way rather than that. But more to the point, if individuals do indeed get their values not from abstract or universal principles, but in the heat of particular contexts and difficulties, how could even the most careful survey provide an accurate account of people’s values?

The final chapters of the book discuss two values in particular that Cotterrell argues are central to at least modern, western states: individualism and social solidarity. The former value has been extensively explored in legal and political theory, so that its inclusion comes as no surprise. But the latter receives virtually no sustained attention, making this the most interesting part of a very interesting book. Clearly individuals will not themselves promote the value of social solidarity in their actions (unless toward family, friends, and perhaps colleagues), so it is up to the law—the jurist—to promote social integration. Cotterrell argues that social solidarity directly arises from economic interdependence (P. 189); but it seems arguable that such extensive and complex economic relationships depend upon prior social cohesion and shared goods such as language.

The book’s discussion of the importance of social solidarity is reminiscent of the work of an earlier positivist, Thomas Hobbes. (In fact Hobbes was also a natural lawyer, but that is a matter for another day.) As Hobbes makes clear, the internal peace and security of the community is more important than, and a prerequisite of, any other form of social good. But the idea of social solidarity is perhaps superior to that of Hobbesian security, for it intimates a realisation that safety and order can only be achieved if they also incorporate at least a degree of justice. I hope this latter idea is one that Cotterrell will return to in future writing.

In all, this is a very interesting, thought-provoking, and beautifully written book. The foregoing scarcely breaks the surface of the ideas involved, and I would encourage anyone who works in jurisprudence to read it carefully and sympathetically.