Thomas Bustamante

Some legal theorists suppose political authorities make laws for us and facilitate our access to correct reasons. Authorities play an instrumental role because they are better positioned to balance reasons for action and create second-order reasons to guide our behavior while alleviating our burden of judgment. This is a service only authorities can provide. Other theorists offer a different story. Authoritative pronouncements make an impact in our moral world that is not merely epistemic. They are part of what constitutes a moral obligation, such that the content of political morality depends on the pronouncements an authority has made. Dorfman and Harel, in their recent book, Reclaiming the Public, call the first view the “add-on conception” of political authority, and the second view the “constitutive conception.” (Pp. 45-49.) They claim these conceptions fail to provide a satisfactory account of the normativity of law, in that they purport to explain how law becomes binding via an account of the law’s contribution to the content of our moral obligations. This content-based strategy is wrong, for the authors, because “the moral difference that law makes is essentially one of standing, agency, identity, status, or some such concept”; in other words, it is “not a matter of what the law is, but of whose pronouncements can count as law.” (P. 50.) Law makes a content-independent difference even when people have no moral disagreement. Suppose an aggressor punches the face of an innocent person. Although most people converge on the wrongness of such action, they would still resist the thought that the aggressor can be punished through the efforts of a private person. To make the use of coercion appropriate, it must be the case that the legal norms that command such punishment count as ours, in a way that we can be held responsible for and accountable to those norms.

Reclaiming the Public is not primarily focused on jurisprudence, although it offers a jurisprudence that is part of the larger project of offering a noninstrumental account of “the public” (the “public institutions and the officials that run them”). What makes public institutions special is that they are not simply entities which act for us, but rather that they are able to “speak and act in our name.” (P. 1.) The gist of the book is the claim that political authority must be nonhierarchical. (P. 16.) At the center of the project lies a theory of representation that provides a “linking mechanism between institutions and the people whom they govern.” (P. 1.) When the mechanism of representation works well, rules pronounced by an official can be attributed to the citizens of a political community, who can in turn regard themselves as authors of these rules. But how can a representative’s decision count as a decision of the subjects? The proposed answer is that these rules must “reflect the perspective” of citizens. Representatives must endorse the worldview of the subjects, base their own decisions on these subjects’ preferences and judgments, to act in their name. Perspective-taking, in this view, entails attributability, because “ultimately it is the perspective of its subjects that dictate the rules.” (P. 17.)

Perspectivism should not be confused, however, with identification. While the latter denotes the ‘attitude of a citizen who regards herself or himself as belonging to the state and, accordingly, as being accountable (in some sense) for her decisions’, perspectivism is focused on the activity of the representatives. (P. 21.) It requires an attitude of the representatives and offers an account of what representing is:

Taking the perspective of another person comes down to a combination of a certain attitude of deference and a commitment to making binding decisions accordingly. The representative is required to acquire a deferential stance toward the represented person. It involves the willingness to substitute the former’s judgments and/or worldviews and/or essential features with those of the latter. (P. 25.)

Things can get trickier when it comes to political, as opposed to one-to-one, representation. Political representation requires representing people who have sharply different preferences and radically different judgments about political morality. Political representation must, therefore, be modest (in the sense of claiming a sufficient degree of correspondence with the representative’s judgments, rather than “perfect” representation), holistic (in the sense of representing the comprehensive set of preferences and judgments of the represented, rather than each and every view), and proceduralist (in the sense of asking procedural questions about how to form a perspective on substantive questions). (Pp. 28-32.) A representative must ground her decision not on the “brute” or “unarticulated” preferences of a crowd, since often an interpretive judgment may be required to make sense of the reflexive interests of those represented, which includes an interest in a consistent application of the comprehensive scheme of values and norms that underlie the represented individuals’ political morality.

A core claim of Dorfman and Harel’s perspectivism is that being a public entity entails an “absence of self-regard.” (P. 32.) Underneath perspectivism lies a deep egalitarian claim. A nonhierarchical political institution is the only kind of political arrangement that can eliminate the “inequality that is built into any hierarchical relationship between a practical authority and its subjects.” On the authors’ view, the proposed account is the only one “to argue for truly egalitarian authority relations,” the only one that “respects its subjects as both free and equal.” (P. 34.)

With that nonhierarchical account in mind, the first three chapters offer a principled account of public institutions. Chapter one offers a theory of legitimacy that regards public authority as acting from the perspective of the citizens, in a way that enables us to attribute the official pronouncements to the citizens. Chapter two specifies the account of legal normativity anticipated above. It holds that a fruitful account of representation need not address the question, “How can thou (the lawmaker) tell me what to do?,” because the representative’s decision, when legitimate, takes the perspective of the representeds; hence, the “thou,” in that question, is in fact “I,” because those represented must regard the decisions as theirs. (P. 41.) And in chapter three, the text specifies the different roles political institutions may perform.

For the authors, the same pronouncement may have different significances depending on which institution enacts it. When different institutions pronounce a norm like the one that acknowledges a right to marry for LGBTQI+ couples, they may “produce different norms and provide different goods.” (P. 64.) While a legislature’s statement of that right expresses a choice to institute the right, a constitutional provision does something more, because it recognizes also a duty to acknowledge that right and makes its protection nonoptional for political majorities. It matters to distinguish the tasks of different institutions, because institutions are “not merely vessels through which norms get public recognition,” but autonomous agents which are designed to achieve different goods. (P. 64.) The difference between statutory and constitutional norms, for instance, entails a crucial distinction between “choice-reflecting and choice-independent norms.” (P. 72.)

Something similar can be said of the difference between statutory and judicial lawmaking. Dorfman and Harel’s interest in judge-made law lies not in cases in which the law is “inchoate” or “silent,” but rather in the more controversial form of judicial lawmaking, where the judges can “break new legal ground where existing law is clear,” changing “the entire normative landscape.” (P. 84.) According to the authors, Judge Benjamin Cardozo’s argument in MacPherson v. Buick Motor Co.¹ is one of these cases. Previous case law had held that, as a rule, the safety rights of a product’s user “are fully determined by contract, rather than by law.” Cardozo in MacPherson abolished the “privity rule” in product safety. The existing exceptions to the privity rule had previously applied only to a limited class of products, but these exceptions, for Cardozo, “opened the door to overruling the rule itself,” creating a general rule of liability for dangerous products. (Pp. 84-85.)

Dorfman and Harel acknowledge that judicial lawmaking is especially constrained, because it requires a judgment based on reason instead of mere political choice. When it comes to adjudication, they adopt a quasi-Dworkian view that severely restricts judicial discretion² and demands “rigorous practices of [legal] justification.” (P. 86.) Cases of first impression are constrained by past political decisions in the following three senses: first, they are bound by the past, since they “articulate the basis for novel rights by arguing from prior recognition of fundamental principles, canonical cases, and influential dicta”; second, judges are constrained by demands of “coherence across legal domains”; and, third, judicial reasoning “is constrained by the specific context to which it is applied so that instances of judicial innovation correspond to specific factual patterns, rather than to the entire range of possible situations.” (P. 87.)

The rest of the book is equally interesting, although the focus shifts from the normativity of law to a general account of publicity. Chapter four provides a fascinating discussion of inherently public goods and specifies cases in which privatization is wrong in itself. Chapter five makes a weaker but more general case against privatization. Even with regards to activities that are not inherently public, privatization should be regarded with suspicion, because it “cuts off the link between processes of decision-making and the citizens and, therefore, erodes the political engagement and its underlying notion of shared responsibility.” (P. 124.) Chapter six explains and defends the notion of “public ownership” Public property has a distinct value not because it entails public enjoyment of certain resources, but because of the public control it allows.

Chapter seven presents an argument against the use of artificial intelligence (AI) in public decision-making processes. Assessments of the legitimacy of the use of AI, it is argued, should not be based on the “quality” or the “efficiency” of the decision that results from that use, but instead on the question of who is entitled to make the decision. Can a decision of an AI count as genuinely authoritative in a political community? Dorfman and Harel are skeptical, because they argue that to count as public, a decision “must be understood, publicly discussed, and openly debated and challenged.” (P. 172.) A decision must satisfy three requirements: transparency, participability, and challengeability. (Pp. 179-183.) Notice an important shift here: while in the first chapter, the authors focused on the activity of representatives (the attitudes one must adopt to be representing someone), in the final (but, unfortunately, the shortest and least developed) chapter, the authors shift to the attitudes of the representeds, and on the demand that they should not only influence the decision of the representatives, but also exercise a form of control over these decisions. As I will argue below, this move is important.

I believe that the book is fascinating and puts jurisprudence on the right track. There are few attempts to vindicate a nonhierarchical account of public authority, but the authors successfully demonstrate this is a valuable pursuit. Nonetheless, in the end, I am only partially persuaded, because this task remains incomplete.

I think there are two ways to develop the views expressed in the book. First, the argument introduced in chapter seven should be generalized and incorporated into the general account of nonhierarchical authority provided in the first two chapters.³ Nonhierarchical authority requires more than “taking a perspective” and “attributing a view” to those represented; it demands also recognizing a prerogative (of those represented) to hold the representatives accountable for their decisions, exercising ex post control over such decisions. Public institutions must institute and secure actual processes for the exercise of that prerogative. Moreover, the claim to be acting and judging “from the perspective” of those represented must be placed under the scrutiny of the community. There must be venues for making demands of accountability and adjudicating the representatives’ decisions, with a power to evaluate and eventually demand a reform of these decisions. Though there needs to be final authority to resolve certain issues (for instance, the authority of a court to adjudicate a given case), the possibility of official mistakes should be acknowledged and the opportunity for correcting similar mistakes in the future should be available.⁴

Second, I believe that the authors should explain how the meaning of authoritative pronouncements is determined. The authors’ focus on officials’ standing to pronounce what counts as law may lead on to think that they adopt the view that Mark Greenberg described as the “Standard Picture” of jurisprudence. The Standard Picture entails the view that the content of legal pronouncements is determined by some kind of “ordinary linguistic meaning or mental content.”⁵ If that is the case, then interpreting a pronouncement is (in part) determining an intention or mental state. Dorfman and Harel’s nonhierarchical account of authority should offer a different account of the interpretation of a public authority’s pronouncements. An official may choose what concepts to utter and (often) what rights to protect. But it is up to the subjects, and arguably other institutions, to administer the content of these concepts and make explicit the further sets of commitments that uttering an authoritative pronouncement entails.⁶ This inferentialist view on legal reasoning and interpretation would be an extension of Dorfman and Harel’s nonhierarchical principle to a sphere that they did not apply it: the realm of legal interpretation and legal reasoning writ large.

None of these two suggestions, however, undermines the achievements of this excellent book. The work makes an egalitarian demand and challenges conventional knowledge, raising important questions for further inquiry. That is precisely the kind of thing we expect from an original work in philosophy of law.

1. 217, N.Y. 382, 111 N.E. 1050 (1916).
2. Dorfman and Harel allow discretion based on inference and judgment (or the kind of discretion that Dworkin would call “weak discretion”), while emphatically rejecting discretion based on choice (which Dworkin would call “strong discretion”). Ronald Dworkin, Taking Rights Seriously 31-39 (1978).
3. The authors claim that such argument is implicit in the initial chapters of the book, but I do not think it is the case.
4. I believe that Gerald Postema’s account of the rule of law as necessarily comprising the requirements of reflexivity and accountability could offer a suitable complementation to Dorfman and Harel’s nonhierarchical view. See Gerald J Postema, Law’s Rule 50-77 (2022).
5. Mark Greenberg, The Standard Picture and Its Discontents, in 1 Oxford Studies in Philosophy of Law 39, 44 (Leslie Green & Brian Leiter eds. 2011).
6. Here’s how the content of a sentence is established in a plausible inferentialist view: “When we talk, making claims about how things are, or expressing intentions as to how they shall be, there is always something that it is up to each one of us, and something that is not. It is up to each of us which move we make, what concepts we apply, what counter in the language game we play. And then it is not up to us what the significance of that is, given the content of what we have said.” Robert Brandom, A Spirit of Trust 516 (2019).