Yearly Archives: 2021

Did H.L.A. Hart, of All People, Neglect Power-Conferring Laws?

Jul 8, 2021 Gilberto MorbachAdd a Comment

As Professor Matthew H. Kramer states at the beginning of his rigorous, insightful analysis, Hart on Legal Powers as Legal Competences, “[a]s virtually everyone among the ranks of present-day Anglophone legal philosophers is aware, one of the chief complaints about Austin by Hart was that the former theorist had disregarded and obscured the major role of power-conferring norms in the structures and operations of legal systems.” (P. 1.) Indeed, Austin’s preoccupation with duty-imposing laws contrasted with his neglect of laws that confer powers, and H.L.A. Hart started his own quest for an adequate concept of law by rejecting his predecessor’s mistake. But what if Hart himself was guilty of a similar sin, at least to some extent?

Before taking up on that challenge, Kramer goes on to explore in some detail (1) Hart’s critique of Austin — in his distinction between power-conferring and duty-imposing laws — and (2) possible rejoinders from Austin defenders.

Hart not only showed that (a) “whereas duty-imposing laws establish unconditional requirements, the requirements specified by a power-conferring law are conditional on someone’s wishing to exercise the power that is conferred” (P. 5); he also showed that (b) while duty-imposing laws normatively close off opportunities by prohibiting certain modes of conduct, laws that confer powers expand opportunities by presenting individuals with ways of realizing their wants, and that (c) the very practice of legal officials — their legislative or administrative or adjudicative activities — presupposes laws that confer on these officials the powers which are necessary for such activities.

Is there a way out? Could a defender of Austin retort to Hart by, for example, reconstructing power-conferring laws as duty-imposing laws? Laws specifying the procedures for some legal arrangement to be obtained, by that view, could be understood as duty-imposing laws carrying a threat of sanction for nonconformity. According to Kramer, true, Hart should have acknowledged that “nullity is sometimes functionally equivalent to a sanction that is designed to steer people away from certain modes of behavior” (P. 7)—but only because all that was needed for him to maintain was that the function of many power-exercising conditions is not that of deterring undesirable conduct, but that of supplying the normative frameworks of various activities and enterprises. Besides, power-conferring rules, by their very type, entail the provision for nullity already in their structure — such provision is not attached to the rule like a sanction would be.

What if power-conferring laws are reconstrued as parts, as elements of laws that impose duties? Such a view can come in a moderate version—according to which power-conferring norms are fragments of veritable laws which impose duties—and an extreme one—according to which complete laws are not addressed to citizens, but direct officials to apply sanctions under certain conditions. According to Hart, while these theses do not fail on any logical or formal ground, they misrepresent the distinctiveness of law’s framework: power-conferring norms, after all, are central to the very existence of any legal system as such. You can interpret power-conferring norms like that. But why would you go for a lesser account of the object you are trying to explain?

Given all that—Hart’s powerful critique, grounded on the attribution of a fundamental role to norms that confer powers—it might come as surprise to learn that Hart himself ended up neglecting power-conferring norms in some ways.

First off, while Hart is famous for his distinction between the internal and the external points of view, Kramer maintains that he should have presented an account of the internal viewpoint of powerholders in his theorizing. In The Concept of Law, we can only find attempts to reconstruct the perspective of those who accept norms that impose duties. The internality of the internal point of view, according to Hart, presupposes that a person who accepts some norm N “is generally disposed [1] to comply with N’s requirements insofar as they are applicable to her conduct, and is also generally disposed [2] to criticize any contraventions of those requirements by other people, and is likewise generally disposed [3] to acknowledge the appropriateness of censure directed against her on any occasions when she herself has—perhaps unwittingly—contravened N.” (Pp. 15-16.) To speak of deviations, of pressure for conformity, is to speak of norms that impose duties — and it is not exactly easy to adjust this analysis of the internal point of view to the structure of power-conferring rules.

One possibility, according to Kramer, would be to direct elements [1], [2], and [3] of the internal point of view not to the (power-conferring) norm itself, but to acts of exercising the powers that have been conferred by the respective (power-conferring) norm. Another possibility would be to modify [1], [2], and [3], formulating them as the dispositions comprising the perspective of someone “who accepts a norm that imposes a duty to exercise some specified power in contexts where doing so will plainly be beneficial and legitimate.” (P. 18.) Sure, Kramer himself acknowledges that these are not definitive solutions to these problems; his main focus, after all, is Hart’s own neglect of power-conferring rules: a “remarkable” oversight “by a philosopher who did so much to draw the attention of his fellow philosophers to the import of power-conferring norms.” (P. 20.)

This oversight reoccurs in the final chapter of The Concept of Law, where Hart attempted to refute voluntarist theories of international law. While Hart was right to say that the norms under which a state imposes obligations on itself cannot derive their obligatoriness from self-imposed obligations, he failed to acknowledge the power-conferring — not duty-imposing — character of these norms. The same oversight is present in Hart’s reflections on necessary and sufficient conditions for the existence of a legal system: by submitting that the role of citizens in maintaining the operations of a legal system can consist in mere compliance with duty-imposing laws, Hart once again erred by neglecting the importance (and the very distinctive framework) of power-conferring norms.

While Professor Kramer’s essay can be taken as a sharp critique, it is yet another instance of his responsible and thoughtful engagement with Hart’s jurisprudence. There is no greater tribute than that.

Update of Jotwell Mailing Lists

Jun 27, 2021 JotwellAdd a Comment

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Jurisprudence section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

Understanding Bentham’s Theories of Meaning and Publicity

May 28, 2021 Thomas Bustamante1 comment

Professor Gerald Postema’s new book, Utility, Publicity and Rights, offers a brilliant set of essays on Jeremy Bentham’s jurisprudence, complementing his previous works. In Jeremy Bentham and the Common Law Tradition, Postema departed from received interpretations that misread Bentham in two ways: first, decoupling Bentham’s normative moral and political theory from his jurisprudence and failing to explain the foundational role of utility in his account of the nature of law; second, underestimating the impact of Bentham’s legal positivism in practical reasoning and adjudication.¹

Like his previous work, Postema’s new book is a major contribution to the pursuit of integrity in Bentham’s jurisprudence. One of its merits is that it not only builds on the principle of utility but also unpacks two less known while no less foundational doctrines in Bentham’s philosophical system: his theory of meaning and his psychological theory.² The book is divided in two parts. The first focuses on Bentham’s basic philosophical commitments. Chapter 1 introduces his account of language, epistemology, and ontology, offering a quasi-pragmatist interpretation of his theory of meaning. Chapter 2 turns to Bentham’s psychological theory to single out the self-regarding interests and social motives that can play a role in one’s individual and social life. The rest of the first part discusses Bentham’s utilitarian theory of value, with special reference to his expressivist meta-ethics (chapter 3), his theory of publicity (chapter 4), his account of equality (chapter 5), and the role of universal interests in Bentham’s moral and political theory (chapter 6). Postema describes these elements as integral parts of the meaning of utility, which play a foundational role in understanding the specific topics of the second part.

This part is dedicated to more concrete legal themes. Chapter 7 discusses the historical development of Bentham’s critique of common law jurisprudence, including an analysis of early texts in which he intended to reform instead of abolishing it. Chapter 8 situates Bentham’s command model of law in a historical context, emphasizing the revisions to the model that he made in his long career. Chapter 9 analyses Bentham’s account of evidence and the role of probability in the determination of legal truths beyond sensorial experience. Chapter 10 revisits Bentham’s forceful objections to rights language in politics and constitutional law, with an attempt to take Bentham’s critique seriously while offering a normative reply. Chapter 11 discusses the place of law in the global order. Chapter 12 attempts to make Bentham’s conception of the rule of law explicit, unpacking his views on publicity to make sense of the impact of this value on legal practice and legal reasoning. And chapter 13, finally, explains how the value of publicity provides an integrative reading of the previous chapters.

The book begins with an intriguing analysis of Bentham’s theory of meaning, which is based on a distinction between “real” and “fictitious” entities. Fictitious entities should not be confused with mere “fictions”, which “play no proper role in thought.” (P. 6.) While Bentham regards fictions as “fabulous” beings that deceive interlocutors when they are portrayed as real entities, he preserves a crucial role for the fictitious entities that are embedded in our language and organize our thought. Without the latter, “no thought beyond that of the most primitive and non-human would be possible.” (P. 5.) Fictitious entities are rational devices which figure among the “ontological commitments of ordinary language”. They play an essential role in Bentham’s epistemology, in virtue of the “relationship they bear to real entities and their participation in the world that they populate.” (P. 6.) On Bentham’s philosophical system, ontology and epistemology are intertwined. (P. 9.) His epistemology begins with the empiricist assumption that “all knowledge has its source in human experience.” (P. 9.) Nevertheless, perception is not sufficient to produce knowledge, because the judgment that an object exists “in the world beyond impressions and ideas” presupposes the exercise of what Bentham described as the “active powers of the mind.” (P. 10.)

On Bentham’s ontology, it is only when we exercise these mental powers, i.e., we engage in the activity of analysis, that we can achieve a proper understanding of the objects we purport to describe. When we turn to nature to understand “real” or “physical” entities, our sensorial experience presents to our mind “a large number of simple ideas, produced by bits of extra-mental reality”, which need to be “bundled together” through these mental activities. It is only “after this analysis or partitioning of primitive sensorial experience, and its subsequent synthesis”, that we can understand these bundles of ideas. (P. 11.) A similar move occurs when we analyze the architecture of language, which begins with singular propositions, but require abstraction to be transformed into words, through their association with fictitious entities that are the product of analysis. (P. 11.) To determine the meaning of any entity, including “real” entities to which we have access through perception, requires an “aggregate of fictitious entities.” (P. 13.) Our unarticulated perceptions, which constitute a psychical reality, are like the physical reality that constitute the “raw materials… on which the active mind operates.” (P. 13.) To make sense of them, as experiences of the world, we resort to fictitious entities like “space and time, colors and sounds, relations and properties, persons and minds, duties and rights” etc. (P. 20.) As Postema explains, “our minds have constructed these fictitious entities over time to understand and manage our interactions with the world in which we live, a world that is planted firmly in the physical and psychical base.” (P. 14.) This account of language and meaning is a form of “quasi-pragmatism” because our use of these fictitious entities stems from the practical commitments we must undertake to achieve a meaningful experience of our world. We need these entities, for Postema, because the domain of “human experience” needs to be “ordered and rendered meaningful by thought” (P. 23.), and this ordering cannot be achieved by mere representational acts that duplicate mind-independent objects in our minds. Bentham’s fictional entities are, thus, constructed by participants in linguistic social practices who develop an artificial vocabulary to understand the relationships among properties, events, and the feelings and emotions we can apprehend through our senses. Conceptual vocabularies are not established in a second-order metaphysical realm, for their content is, instead, responsive to these social practices.

To transform mere sensorial perception in experience, we must resort to fictitious entities that are constructed through the exercise of the active powers of the mind. According to Postema, fictitious entities are “rooted in an independently existing material world” but not dependent on a priori principles or categories, in a Kantian sense. On Postema’s reconstruction, Bentham’s ontology is a “combination of empiricist, realist, and quasi-pragmatist elements.” (P. 16.) To construct the artificial vocabulary made possible by these entities, Bentham resorts to two types of definitional activity: first, definition per genus et differentiam, in which one clarifies a term by subsuming it into a genus or locating properties that distinguish it from other species; second, through the technique of paraphrasis, in which we explore relations among concepts to explain a concept’s genealogy, tracing it back to the aspects of the physical world that provide the warrant of its use. (P. 19.)

As Postema explains,

Fictitious entities … all exist; they are fictitious only in the sense that they do not exist as physical entities. The mistake we make about fictitious entities is not the mistake of attributing existence to them, but rather of thinking that we can confirm their existence by just looking. Their ontological status is different from physical objects (or rather space-time material movings). Moreover, their ontological legitimacy, and their meaningfulness (in propositions), is made manifest through skillful deployment of the technology of paraphrastic definition. (P. 21.)

Postema interprets Bentham, thus, as a linguistic pragmatist avant la lettre. Instead of a representationalist theory of meaning, Bentham supposes that a large part of our knowledge comes from inferences and analysis, through the social use of active powers of the mind. The sense of the concepts we use stems from the implicit fictitious entities we construct to make sense of our world and to make it possible to understand and gain knowledge by rational means.

I believe that Postema’s quasi-pragmatist reading of Bentham is reinvigorating. It lies at the heart of the value of publicity, which constitutes another central topic of the book. Postema’s reconstruction of the Benthamite theory of meaning makes sense of the claim that publicity is “the very soul of justice” (P. 267), and articulates the infrastructure that this principle provides for the rule of law. (P. 268.) Publicity is a source of security against misrule, because it creates a rational environment and an institutional structure in which governmental officials can be held accountable for their responsibilities and develop the proper “moral aptitudes” required by the commitments to their official roles. (Pp. 269-271.) It explains why Bentham’s motto “obey punctually and censure freely” should not be taken at its face-value, since part of the duties of a free government is to “‘cherish’, encourage, and enable the popular disposition to resistance.” (P. 274.) It invites us to revise our first impression that Bentham’s command theory of law fails to impose “leges in principem” (P. 279) or render the sovereign accountable to the law. (P. 288.) It shows, in addition, the failure of the Hartian interpretation, which holds that Bentham’s thesis that law exists in virtue of the “habit of obedience” of subjects implies a passive attitude toward an unaccountable sovereign. As Postema explains, “habit is not a thoughtless, rote, and strictly singular responsiveness to commands, but rather a co-ordinated collective response to the efforts of those in power.” (P. 281.)

It makes sense, in addition, of Bentham’s skepticism about classical common law, which he described as “dog-law” because its vocabulary depended on mysterious fictions that allowed judges to “impose penalties with no warning and no public rationale, treating citizens like creatures who understand only the lash.” (P. 277.) The failure of the purported rationality of common law was a failure of publicity, because it depended on an aristocratic professional vocabulary that withdrew from the ordinary citizen the active powers of mind which are necessary to make a judgment about the concepts and values lawyers employ. Common law was dog law, for Bentham, because he thought that classical common lawyers made use of fictions, rather than traceable and warranted fictional entities. The fictional entities, or intellectual commitments, on which a competent participant in social practices must rely were not shared with or available to the ordinary public, rendering the lawyers an unaccountable and irresponsible caste.

The interaction between active powers of the mind, or inferential capacities, and public processes and institutions, provides us with the equipment to understand Bentham’s apparently cynical dismissal of the language of rights in politics and constitutional law. The rhetoric of rights, on Bentham’s view, is stained with indeterminacy that renders it impossible for one to make a rational and objective judgment about the public justification of a legal or political claim. (P. 235.) The rationality of legal processes depends, for Bentham, on the assumption that Postema described as the demonstrability thesis, i.e., the thought that an action “is publicly justifiable only if it can be grounded in arguments that any competent member of the community in question would accept as conclusive support for it.” (P. 236.)

The connection between publicity and inferential capacities shows also how to criticize the demonstrability thesis, or how to turn Bentham against himself, as Postema does when he argues that what democracy requires is not uncontroversial or always determinable rules, but rather a participatory and discursive practice, above all a reflective practice, in which citizens can engage with their interpretive capacities to make sense of their common norms. (Pp. 239-242.)

I will probably not do justice to Postema’s extraordinary achievements in this brief review. But I am glad that Bentham finally received, after almost two hundred years of his death, the systematic, insightful, and generous interpretation he deserves.

Societies of Angels and Non-Coercive Legal Systems

May 3, 2021 Brian TamanahaAdd a Comment

A number of prominent contemporary legal philosophers have invoked thought experiments about societies of angels in support of an argument that a non-coercive legal system is possible. The basic scenario is this: morally perfect angels would need law to coordinate their actions and resolve disputes, but since they voluntarily comply with the dictates of law (given their moral perfection), the legal system can operate without coercion.³

An obvious objection to these types of arguments is that talk of societies of angels (SoAs) has no bearing on human legal systems (never mind that it is a fantasy). Undeterred by such skepticism, legal philosophers continue to construct arguments on this imagined scenario without explaining why it merits being taken seriously. From Angels to Humans: Law, Coercion, and the Society of Angels Thought Experiment, by Lucas Miotto, robustly defends these arguments as sound. This superb essay is clear, astute, and balanced. Indeed, it is so balanced that, though setting out to defend SoA arguments, in closing Miotto moves “the discussion away from angelic scenarios.”

At the outset, Miotto considers four alternative interpretations of the argument that non-coercive legal systems are possible. Nomologically possible means that humans, given their biological and social requirements, can construct non-coercive legal systems—a position that many legal theorists reject. Logically possible means that non-coercive legal systems are not logically prohibited—which is true but trivial. Metaphysically possible means that a non-coercive legal system is “consistent with the most fundamental metaphysical principles and categories that structure reality.” Finally, conceptually possible means that a non-coercive legal system is consistent with our current, ordinary concepts of the world.

Among these alternatives, Miotto selects metaphysically possible as most consistent with the philosophical inquiry into the nature of law. His aim is to show that “we can (at least) justifiably state that a non-coercive legal system, as depicted in the society of angels thought experiment, is metaphysically possible.” There are various ways to construe metaphysical possibility. His baseline is set by background knowledge and experience (what is actual is metaphysically possible), which also serve as defeasible standards against which to determine the plausibility of claims about metaphysical possibility.

Building on these propositions, Miotto constructs his argument about non-coercive legal systems in societies of angels in a few steps, the first two about actual legal systems and the third about angelic legal systems. First, he observes, the degree of coerciveness varies among legal systems, and less coercion is necessary when people largely comply with the law, which means it is metaphysically possible for legal systems to drastically reduce coerciveness. Second, a substantial amount of law addresses coordination problems and other matters that do not involve coercion.

This brings us to non-coercive legal systems of angels. The basic assumption in these thought experiments is that angels are morally perfect. Miotto asserts that this assumption need not be controversial. “All that is needed is that moral perfection entails that angels would cooperate with one another when cooperation prevents the occurrence of morally bad outcomes and when cooperation helps angels to achieve morally good outcomes.” This assumption, he claims, can be grounded in our experience of morally good people who act cooperatively to achieve good outcomes. Now, if we accept that legal systems tend to reduce coercion when it is unnecessary, and that angels would cooperate with the law, then it follows that angel societies would have non-coercive normative systems.

The only difficult issue, he contends, is whether the cooperative normative systems in SoA are legal systems. To support this characterization, Miotto points out that there is a substantial overlap between the social needs served by legal systems in human societies and in angelic societies:

A society of angels might still have the need to create rules to allocate property, to regulate contracts, wills, taxation, to solve small and large coordination problems related to public goods, political processes, the organization of common space (including the organization of traffic, zoning, signals, etc.), assigning roles, allocating risk, settling disputes, and many other non-trivial activities that fall within the scope of the activities performed by actual legal systems. [emphasis added, relevance indicated below]

This functional overlap with human legal systems justifies characterizing non-coercive angelic normative systems as legal systems.

With this account in hand, Miotto responds to two criticisms of SoA arguments. First, Andrei Marmor objects that the thought experiment is inconclusive because the details of angelic societies are underspecified; more specifically, if angels face prisoner dilemma situations, coercion would be required to insure cooperation. Miotto denies that this is a problem because the angelic legal system can legally require cooperation (which they would comply with per assumption), the cooperative nature of angels would solve the dilemma in favor of cooperation (the best outcome), and the problem of a lack of specificity can be resolved by including more details about angelic societies and legal systems.

Second, Marmor and Dan Priel object that angelic societies are so different—so alien from human societies—that it is not clear anything relevant can be learned from this thought experiment. Miotto’s response is that their societies are not that alien: “What we need to stipulate in the society of angels’ scenario is clear enough: it is a society solely inhabited by creatures that resemble us in every respect except from being much more cooperative and law abiding.”

Let me momentarily pause the recitation of his argument to make a few critical observations about his defense of the SoA scenario. The differences between (imaginary) angel societies and human societies are not just a matter of degree. Not only are humans not moral perfectionists, but moral perfection is possible only if objective truths exist about the right and good (summa bonum) and these truths are universally known by angels and perfectly manifested in the law. After all, if angels pursue moral perfection, but they have differing views of what this requires in a given instance, not only will they disagree among themselves about what is required, but they also will not comply with a law they consider contrary to what moral perfection requires (either the law generally or as applied in a particular instance).⁴ In these situations, coercion must be applied to force angels to comply with what the law requires.

So the SoA scenario presupposes that angels are moral perfectionists, and it presupposes the truth of natural law and that angels interact in ways that conform to natural law. Angel societies are natural law based (though a number of legal philosophers who invoke SoA are legal positivists who do not accept natural law). Needless to say, human societies are nothing like this heavenly scenario—which entails far more than angels being nicer versions of humans. Nor is it obvious that a heavenly society would need a legal system, since every angel would be doing what is right at every moment anyway. Why would any disputes arise?

Miotto is aware of this objection, which he waves away. “From the fact that angels are morally perfect one could conclude that there would be no need for courts to adjudicate disputes about facts. (But, even if this is true, couldn’t angels have institutions they don’t strictly need? Maybe having a legal system is just more convenient to them.)” If no disputes arise, however, there is simply no use for a legal system with courts. Coordination can be resolved through known rules, duly obeyed by all, and no conflicts will arise.

Now let us return to his argument, which takes a sharp turn following his defense of the validity of the SoA thought experiment. Miotto acknowledges that SoA arguments “won’t tell us whether a legal system for humans could possibly exist without coercion.” A legal philosopher can insist that a metaphysical argument need not tell us whether humans can have non-coercive legal systems, since the aim is to show what is metaphysically (not humanly) possible. But Miotto does not rest on this position. He proceeds to argue based on thought experiments revolving around human legal systems that coercion is a contingent feature of typical legal systems.

His thought experiment posits a society in which all institutions of law enforcement are disabled by a terrorist attack; society will carry on, and legal arrangement will largely be complied with, owing to a sense of solidarity. Miotto admits that human legal systems that lack coercion will not survive for long in this condition, but the point remains that they are possible—which is sufficient to refute the assertion that coercion is a necessary element of legal systems. (What this thought experiment shows is not only that law can exist without coercion, at least temporarily, but also that social order is maintained largely through social factors more so than through the legal system itself.)

Miotto then addresses the obvious objection to his thought experiment, that criminal punishment plays a large role in the legal systems of all societies. In response, he offers a novel argument that a legal system can punish people in a way that is not coercive—thereby maintaining the position that coercion is not necessary. He stipulates that “A salient, and essential, feature of coercive actions is that the coercer does not address the coercee with respect. Coercers do not guide or attempt to guide the coercee’s actions; coercers goad them.” A legal system can punish people for their wrongful actions “without resorting to the kind of disrespectful treatment characteristic of coercive actions. All of these functions could be fulfilled by a non-coercive criminal law system, without stopping the punishment of citizens.” Miotto goes on to argue that criminal systems should punish in non-coercive ways.

A legal system that punishes in ways that treat people with respect is undoubtedly a worthy ideal. But this does not eliminate coercion. Coercion in a legal context simply means forcibly compelling people to do something they would not otherwise willingly do. Requiring someone to pay a substantial fine (under threat of the seizure of their property) or putting them in jail (subject to threat of capture), when they would prefer not to—whether done in a respectful or disrespectful manner—involves coercion.

In closing, I should emphasize that my critical engagement with Miotto’s argument does not detract from the value and quality of his essay. His articulation and defense of the SoA scenario is systematic and thorough, enabling a more incisive examination of the argument. And his use of thought experiments about non-coercive human legal systems moves the analysis on this topic in a potentially fruitful direction. Proponents as well as skeptics of society of angels arguments about non-coercive legal systems will benefit from this fine essay.

Taking Theory Out of a Participatory Cul-De-Sac

Apr 9, 2021 Andrew HalpinAdd a Comment

Reevaluating Legal Theory, by Jeff Pojanowski, is a review essay on Julie Dickson’s work on indirectly evaluative legal theory takes in her 2001 book, Evaluation and Legal Theory, and her subsequent writing on the topic. More than this, it situates Dickson’s work within wider jurisprudential debates, preceding and continuing after her contributions. The essay amounts to a detailed guide through the terrain of jurisprudential methodology, which is both informative and stimulating, both cautious and boldly innovative. The reader is invited on a journey to be undertaken with less than favourable weather conditions, taking place under the menacing clouds gathering from the positivist/anti-positivist conflict. The route has been selected not so much as to feature moments of breathtaking vistas, as to require the reader to trudge through disappointing locations which have not lived up to their proclaimed attractions. We have to confront a dead end, or cul-de-sac (Pp. 1300, 1306), as well as admitting to being on the road to nowhere. (P. 1324.) Disappointing as this may be, one has to admire the instructive commentary accompanying each mis-step along the journey. Ultimately, this prepares us for the promise of a brighter destination, which holds out the hope of delivering what previous stopping points have failed to deliver.

Pojanowski characterizes what Dickson has sought to achieve by her indirectly evaluative approach as a dilemma for her: in reconciling within a concept of law “features of law that are (a) necessary or essential to all legal systems, based on (b) what those subject to the legal system find important and significant about law (c) without imposing a morally evaluative filter on those important and significant theoretical necessities.” (P. 1313.) At the heart of this dilemma is the need to bridge the contingent, relativistic, or particularistic perceptions discoverable at (b) with the universal features required at (a). (Pp. 1315, 1320, 1307, 1322.) This is exacerbated by a tension, or even outright conflict, between the participant perception and the theorist perception of what features are significant at (b). (Pp. 1317 n.86, 1319, 1323, 1328.) There is no easy fix available to the theorist so as to be able to impose uniformity on the range of participant perceptions of those features.

If those features of law are not to be identified by a moral filter (as (c) insists), then it appears resort must be had to a social theoretical approach. (Pp. 1304, 1313.) However, Pojanowski’s survey of options on offer in Part II clearly returns the verdict of not plausible. A naturalist approach cannot be squared with the emphasis Dickson places on participants’ perceptions. (Pp. 1317-18.) A hermeneutic approach does not lend itself to the normative neutrality and essentialism required by Dickson. (P. 1319.) Nevertheless, Pojanowski commends Dickson for her “resistance to both the naturalist’s externalist approach to law and the hermeneut’s radical particularity.” (P. 1321.)

Still, Dickson’s basic dilemma remains unresolved. Pojanowski spends a number of pages expanding on the radical particularity and debilitating relativism of deep hermeneutics (Pp. 1321-24), concluding: “What universal, non-normative framework allows Dickson to transcend this particularity is a question unasked and therefore unanswered.” (P. 1324.)

Pojanowski’s own proposal for a way out of the cul-de-sac is advanced unapolegetically from the natural-law side of the conflict where Dickson is found in the opposing camp. Yet it is made without forceful polemics, in a measured and, even, tentative manner. (Pp. 1326, 1329-30.) It relies on a number of steps to break out of the “hermeneutic circle.” (P. 1324.) First, he follows Alasdair MacIntyre’s insistence that the participant’s self-understanding needs to be supplemented by the theorist. (P. 1325.) Secondly, he acknowledges with Charles Taylor the presence of a “value slope” present in theoretical accounts of social behaviour. (P. 1326.) This amounts to “an overarching judgment about the point of the practice” that theorists “cannot help but presume to share with the participants whose actions they seek to understand.” (P. 1327.) Thirdly, he amplifies this teleological aspect with a central case methodology. (P.1327-29.)

Finally, Pojanowski retains the need for a viable social theory which can genuinely present the participant perspective while evaluatively refining its central case as incorporating essential characteristics of law – requiring “a metaphysics and ontology that is richer than reductive naturalism and more realistic and hardheaded than the subjectivity of social constructionism.” (P. 1329.)  For this he suggests the resources of critical realism. (P. 1329-30.) By this point, it is evident that Pojanowski is not resolving but disposing of Dickson’s dilemma, in permitting the directly moral evaluation which she sought to banish at (c).

The culmination of Pojanowski’s approach is found in his proclamation of  a “moral and social universe” shared between theorists and participants in the practice. (P. 1329.) Before this is dismissed as nothing more than resorting to base polemics by the natural-law camp, it is important to note two observations he makes, indicating a less bellicose and more reasonable engagement in debate. One is to suggest that the rejection of moral evaluation within an understanding of law by positivists such as Bentham and Hart was tied into their own wider philosophical commitments, accompanied by a related value slope. (P. 1330-31.) The other is to admit that his approach is tied to his own “moral and even metaphysical commitments.” (P. 1331.)

Given the thoughtful and modest tone of Pojanowski’s proposal, this essay deserves careful attention and should stimulate further exploration of the important issues it raises. Foremost, perhaps, among these is the suggestion that the effective realization of analytical necessity may be conditional upon metaphysical commitment.