Yearly Archives: 2021

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.

Beyond Exclusion

Feb 3, 2021 Larissa KatzAdd a Comment

In my last year of law school, through the dark days of an Alberta winter, I read a book about property law by a young professor visiting from England. It was a dazzling book, brilliant and witty, learned and ambitious. It made clear that the idea of property was the proper subject of philosophical inquiry, something both obvious and marvelous that would repay close attention. That book, The Idea of Property in Law (1997), and its author, James Penner, have stood as a source of inspiration for property theorists (myself included) ever since. Now almost twenty-five years later, James Penner has revisited that account of property in a new book, the aptly-named, Property Rights: A Re-Examination.

What was so striking about The Idea of Property in Law, then and now? The first is its attempt to account for property in terms of its two essential features: the excludability of others from the object of the property right (the thing) and the separability of the thing from its owner. The second is its attempt to reconcile the idea of property as a right to a thing with the idea of property as a correlative jural relation. Penner insisted that property was both relational and a right to a thing and indeed that the relationality of property depended on its thingness. His claim was that the thing (the res) mediates between the duties of non-owners and the rights of owners. Property rights are correlative, on Penner’s account. Unlike other private law rights, they depend on the mediating role of things to achieve that correlativity. An owner may enter into any number of direct, personal relationships with others, individuals who become that owner’s tenants, licensees, buyers. But the owner’s relationship with everyone else is on a different footing, Penner pointed out. They may have no personal relationship with the owner at all: Their relationship to him is only “through his property” and that relationship is regulated by a general duty not to interfere with the property of others. (1997, P. 27.)

Penner’s account was not just a blueprint for thinking about property in terms of exclusion; it also was a devastating attack on a previously dominant contemporary account of property as a bundle of rights. The bundle-of-rights approach had taken the view of property as a right to a thing to be incompatible with a legal understanding of property rights as jural, involving correlative rights and duties. The force of Penner’s attack came not only from showing what bundle of rights theories missed about the nature of property (exclusion and separability) but also from explaining how property was a distinctive, in rem form of jural relation. Bundle-of-rights thinking has never fully recovered.

In Property Rights, A Re-Examination, Penner deepens and extends his account of property with his signature clarity and vigor. In this new book, he argues that the central case of property, ownership of tangible things, has a tripartite structure, composed of a right to exclude and two title-powers, the power to grant possessory licenses and the power to deal with title in a variety of ways, by granting lesser titles in the form of a leasehold or transferring title outright to someone else. (Other forms of property, like intangible choses in action, do not have exclusion as a basic norm, on Penner’s account: intangible property does not require exclusion because, he argues, there is nothing to exclude anyone from.)

There are two important insights in Penner’s book that will continue to guide thinking about property in law for legal theory. The first concerns Penner’s revisionist approach to Hohfeld’s famous analytical framework of jural relations. Penner works out in more granular detail how the correlativity of rights and duties, powers and liabilities in private law is achieved only through what he calls the mediating function of rules—and it is these general rules, not the particular jural relations they generate, that reveal what is important and distinctive about the idea of property. The mediating function of property law consists in property’s use of impersonal, epistemically undemanding rules, chief amongst which is the duty not to interfere with property that is not one’s own. This marks, I think, an important shift in philosophical focus, from the personal, rights-based relations that property generates (how things stand between you and me with respect to a particular thing) to impersonal rules (governing how we relate to things and the general duty of non-interference with things that do not belong to us). Penner’s structural insight about property law is that the latter explain the former. A second insight, made explicit in his new book, is Penner’s view that our common interest in the Earth sets land apart from other things. Our common interest in the planet, our shared habitat, is not adequately served by a system of private property rights in land, he suggests. That is not because we own the Earth in common but because, in a sense, the Earth as our home is inseparable from us. As such, it is not the kind of thing that ought to be treated as the object of property in law. While Penner does not fully explain what it means for the Earth to be a part of us and so not appropriately the object of property rights, he sets out the contours of such an account and why it matters.

Property Rights: A Re-Examination completes the task Penner began a quarter century earlier in The Idea of Property in Law and offers a thicker philosophical foundation for his account of the nature of property and the interests that justify it. In doing so, this book will no doubt serve to inspire another generation of philosophically-minded property scholars.