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The Zeal of Our Age

Jan 3, 2017 W.A. Edmundson1 comment

Privatization is a phenomenon that legal theorists and legal philosophers have begun to notice and to stake out positions on, for and against. Privatization is defined with reference to the (too?) familiar distinction between public and private actors. Privatization happens when a good, service, or a function that is typically supplied by state government, through the efforts of its officials and personnel, comes to be provided by private actors, perhaps still at state expense. In a pair of recent articles, Avihay Dorfman and Alon Harel have singled out private prisons and mercenary armies as paradigm examples of privatized public goods. Dorfman and Harel lament the fact that both advocates and opponents of privatization conceive the normative issue in purely “instrumentalist” terms. Which type of actor, public or private, can provide a given good or service more efficiently? Discussions therefore deal in contingencies, and at retail level. Dorfman and Harel argue in their 2013 article that this sort of approach fails to engage the intuitive sense that there is something intrinsically worrisome about privatization that pervades it wholesale. It isn’t centrally a question whether private prisons, say, are more or less likely to do the job efficiently (without compromising prisoner rights). It is rather a conceptual question whether there is a category of goods—“intrinsically public goods”—that can only be provided by the state, directly, by its officials; and, for instance, whether criminal punishment is among them. The answer to conceptual question, and the answer’s retail application might allow the possibility of privatization: in which case, but only then, they say, it is proper to go on to the contingent question about the relative efficiency of public and of private delivery.

John Gardner warns of the futility of erecting a “conceptual stop,” and distills from Dorfman and Harel a more promising proposal, in these terms:

when certain actions are performed by non-state operatives, such as the employees of private contractors, they are incapable of realizing some important value that they are capable of realizing when they are performed by state officials, and that the important value in question is not captured by those who merely compare “the quality of the execution of the enterprise” as between the two classes of potential executors. (P. 3.)

But for Gardner it is still unhelpful to frame the issue this way, for it is

too narrow. Why should one restrict oneself to comparing a public functionary with a private functionary, having already identified some function that each is expected to perform? Surely an instrumentalist is entitled to say that although a private company is better at detaining or deporting or delivering mail or babies than a public body, nevertheless there are other bad consequences of moving over to a system in which detaining and deporting and delivering are handed over to the private sector which are not reflected in the quality of the detaining or deporting or delivering itself? (P. 4.)

What Gardner is awake to is the threat of creeping . . . —what I would call creeping de-socialism.

For privatization is not only the transformation of detention centres, trains, tax inquiry offices, forestry operations, and so on – considered one service at a time. It is also the creeping transformation of our political system and public culture from one of democratic oversight to one of plutocratic oversight. (P. 4.)

By way of clarifying why privatization is equally a move away from public governance (of any kind) and toward governance by corporate behemoths, Gardner points out the

complementary and in some ways continuous … transfer of power away from relatively independent professionals such as teachers, lawyers, architects, and doctors, and into the hands of large corporations, with their elaborate schemes of patronage and discipline and bureaucratic repression, replacing professionalism with “customer service” and “performance management”…. The contemporary zeal for privatization is not a zeal for independent-minded people who are only erratically susceptible to official or corporate patronage…. The zeal of our age is a zeal for the ever-increasing transfer of power, including political power, to the money industry. (P. 15.)

The wholesale problem is therefore not a conceptual one, but a matter implicating both political philosophy and a normative theory of political institutions (what Jeremy Waldron calls “political political theory”). Framing the issue as narrowly as Dorfman and Harel do has consequences.

Indeed aren’t we already giving the plutocrats the edge even by assuming that a system of government should be judged as a provider of various severable services, or clusters of services, to those we are now supposed to describe as its “customers”? If so, then [Dorfman and Harel are] surreptitiously stacking the instrumentalist deck in favour of privatization … landing instrumentalists with a narrow service-provider picture of government which allows the private sector to compete on quality of service provision, when the real question is: Can they compete on quality of government itself? For government itself is what the private sector is gradually morphing into. (P. 5.)

Gardner’s remarks were made in Harel’s presence, at a workshop on his book, Why Law Matters? of which his and Dorfman’s analysis made up a chapter. The two respond accommodatingly in their 2015 article. (Oral argument can make a difference.) But Gardner’s closing remarks are, to me, a disappointment.

In politics and policy, by and large, what we should currently do depends on what we have most cause to fear, and how we can best undermine it in advance of its arrival. The problems of social organization are themselves contingent and contingency is therefore an unthreatening feature of the solutions. The question, then, is not that of how we should eternally be organized, of which public sector pursuits are “essentially” public and which are not, but, as Bentham saw most clearly, of how to protect ourselves most effectively against the most egregious forms of misrule. (Pp. 16-17.)

Not fifty years ago, John Rawls offered a detailed answer to the question, how we should be eternally organized, “we” meaning, we citizens of modern constitutional democracies. “Eternally” meaning, as a scheme of cooperation for mutual benefit, intended to stably reproduce itself from generation to generation. It has become fashionable to dismiss this as mere “ideal theory,” as Gardner seems to do while hurriedly invoking both Benthamite utilitarianism and Judith Shklar’s liberalism of fear. A careful (re-)reading of Rawls, particularly his Justice as Fairness: a Restatement (2001), offers a more coherent and practical way of thinking how to respond to “the coming plutocracy” (P. 9) that, in Rawls’s view, had long ago arrived and rested its boots on the common table. At least by 2001, Rawls was explicit that achieving justice as fairness requires democratic socialism or something very like it. It isn’t clear who Gardner has in mind, in admonishing “progressives who are bewitched by memories of a class war fought in a different era” (P. 16); but, which era is this? The war sounds awfully familiar.

Brink on Dworkin’s Originalism

Nov 18, 2016 Connie RosatiAdd a Comment

What was Ronald Dworkin’s relationship to constitutional originalism? One might think that Dworkin rejected originalism. After all, he famously advocated a normative approach to constitutional interpretation—indeed, a “moral reading” of the Constitution—an approach seemingly at odds with the historical approach favored by originalists. Moreover, he was explicitly critical of appeals to the intentions of the framers; in particular, he was critical of appeals to the framers’ expected applications of constitutional provisions. The latter criticism figured centrally in his commentary on Justice Antonin Scalia’s Tanner Lectures, A Matter of Interpretation. But in Originalism and Constructive Interpretation, David Brink offers a novel interpretation of Dworkin, arguing that, in fact, Dworkin subscribed to a version of originalism. This originalism differs markedly, however, from Scalia’s form of originalism, as well as from other contemporary versions of originalism. For what Dworkin advocated was an originalism of principle.

Brink’s defense of his interpretation of Dworkin proceeds in roughly three stages. The first stage defends a view of the semantics of legal norms, claiming that Dworkin (who defended the determinacy of law) would need something like this view in order to respond successfully to H.L.A. Hart’s argument for legal indeterminacy in hard cases. Hart argued that legal rules are formulated in general terms, that general terms are “open textured” (with a core determinate meaning, and an indeterminate periphery), and that for this reason, hard cases are legally indeterminate: they must be decided by an exercise of judicial discretion. As Brink depicts Hart’s semantic assumptions, Hart assumes that the meaning of language in a legal norm is determinate as long as the meaning and extension of its terms is uncontroversial. Where there is disagreement about criteria for the application of a term or about its extension, the term’s meaning is indeterminate.

But this assumption, Brink argues, is problematic. “Disagreement does not imply indeterminacy. There can be a fact of the matter about the extension of a term even if there is disagreement about its criteria of application or its extension.” (P. 277.) As Brink explains, the fact that people may disagree about the criteria for toxicity or the extension of the word ‘toxin’ doesn’t show that there isn’t a fact of the matter about which substances are toxic. Similarly, the fact that libertarians and egalitarians disagree about the nature of justice doesn’t show that the criteria of application or extension of ‘justice’ is indeterminate. In fact, Brink argues, Hart’s semantic assumptions would have the result that when people apparently disagree in their criteria for application of a term, they actually mean different things, in which case they aren’t really disagreeing after all. “Disagreement is typically disagreement in belief about the extension of terms, which presupposes invariant meaning and extension.” (P. 178.) In contrast to Hart’s “descriptional” conception of meaning, Dworkin must, he thinks, be committed to a “referential” conception of meaning, according to which the meaning and extension of terms depends on substantive facts about the nature of the objects to which those terms refer. In the case of general terms that occur in legal norms, their extension is determined by “substantive facts about the nature of the institutions, processes, properties, and relations that these norms concern.” (P. 279.) Brink suggests that the contrast between views might also be expressed in terms of the contrast between concepts and properties, or in terms of the contrast between nominal (or dictionary type) definitions and “real definitions,” which attempt to characterize the essence of a kind or property.

Though not explicitly defended by Dworkin himself, this semantic view fits, Brink contends, with Dworkin’s claims about constitutional interpretation in Taking Rights Seriously, as well as with his critique of conventionalism in Law’s Empire. It aligns with Dworkin’s distinction between concepts and conceptions. People might share a concept, such as the concept justice, while holding different conceptions of justice. They might share, in the case of distributive justice, the concept of an “appropriate distribution of the benefits and burdens of social interaction and cooperation” and might agree on paradigmatic instances of justice and injustice, while holding competing conceptions of the extension of the concept (for example, libertarian and egalitarian). (P. 280.)

The second stage of Brink’s interpretation of Dworkin discusses his critique of originalist appeals to framers’ intentions. Such appeals have well known difficulties; Paul Brest discussed them extensively in “The Misguided Quest for the Original Understanding.” Dworkin stressed some of these difficulties as well, and this might lead one to conclude that he rejected originalism altogether. But Brink argues that “there is a form of originalism about constitutional interpretation with which Dworkin has reason to be sympathetic.” (P. 283.) To explain this form of originalism, Brink turns to Dworkin’s distinction between abstract and concrete (or specific) intent. Consider the interpretative constraint of fidelity to the framers’ intentions. What this constraint entails is uncertain until we know which of the framers’ intentions interpreters must be faithful to—their abstract or specific intent. Fidelity to specific intent would require legal interpreters to engage in historical-psychological investigation of the sort commonly associated with originalism. In contrast, fidelity is to abstract intent would require legal interpreters to engage in moral inquiry into “the nature and extension of the values and principles that the framers introduced.” (P. 283.)

Which controls, abstract or specific intent? Dworkin offered a counterfactual test that asks us to consider “what a framer would have supported if he thought he had to choose between his abstract and specific intent.” (P. 283.) Brink offers the following example. (Pp. 283-84.) Suppose that I intend to strictly regulate the manufacture and disposal of toxins. As it happens, I believe that only x is toxic, and so I aim only to strictly regulate x. But now suppose that I came to believe that y is also toxic. Would I give up my intent to regulate toxins or my intent to regulate x? Although Dworkin, Brink reports, seems to have thought that application of this counterfactual test may often yield indeterminate results, Brink himself thinks that it usually has a determinate answer, and one that treats abstract intent as controlling. He remarks, (Pp. 284-85)

one would have expected Dworkin to combine his critique of specific intent with a defense of abstract intent. For an originalism of abstract intent is very similar to Dworkin’s own claim that constitutional adjudication should be faithful to the normative concepts of the framers, rather than reproducing their normative conceptions. For the abstract intent of the framers is just the kind of normative constraint they sought to introduce, specified at the level of abstract concept, principle, or value, and their specific intentions are just their beliefs about the extension of that concept, which reflects a conception, whether explicit or implicit, about the nature and demands of that concept. But then Dworkin’s own conception of constitutional adjudication can be formulated as a form of originalism that insists on fidelity to abstract intent, rather than specific intent. This would be an originalism of principle.

Brink goes on to argue that an originalism based on fidelity to abstract intentions overcomes the problems Brest and Dworkin himself raised for appeal to framers’ intent.

The third stage of Brink’s defense of his interpretation of Dworkin discusses how Dworkin defends an originalism of principle in his comments on Scalia’s defense of textualism in A Matter of Interpretation. In the course of spelling out what he takes to be Dworkin’s view, Brink offers a map of the forms originalism can take. Whereas Scalia defends a form of textualism that accepts a public meaning view of constitutional language, along with a descriptional view of meaning, Dworkin defends a form of textualism that accepts public meaning but with a referential theory of meaning, as described earlier. (Alternatively, Brink suggests, Dworkin’s position might be described as accepting framers’ intent (rather than textualism) where the relevant intent is abstract intent.)

Brink reflects on the relationship between this originalism of principle and Dworkin’s account of constructive interpretation in Law’s Empire. “Insofar as constructive interpretation and law as integrity incorporate Dworkin’s earlier idea that interpretation of a legal provision should aim to articulate and apply the best conception of the concepts underlying the legal provision, they can reasonably claim to embody an originalism of principle of the sort I have argued that he elsewhere embraces.” (P. 289.) Yet, Brink notes an important difference between an originalism of principle and constructive interpretation. Suppose that a judge must decide a case according to one of two principles, P1 or P2. And suppose that P1, while less attractive than P2, better fits with precedent than P2. Whereas an originalism of principle would have the judge follow P2, constructive interpretation might lead her to follow P1. Thus, whereas constructive interpretation would have interpreters take account of both fit and justification (or “acceptability”), seeking a balance between them, an originalism of principle favors attending to justification. (P. 292.) Although both constructive interpretation and an originalism of principle aim to resolve cases by identifying and applying the best conception of the concepts expressed in a legal provision, an originalism of principle takes this to exhaust legal interpretation, whereas constructive interpretation treats it as one factor that must be considered along with fit. (P. 294.)

Brink offers an illuminating and compelling interpretation of Dworkin that aims to make coherent sense of his disparate commitments and of the differing ways in which he formulated his views over the years—in terms of principles v. rules, concepts v. conceptions, and abstract v. specific intent. He offers a persuasive account of the differing semantic assumptions of Hart and Dworkin and persuasively shows how Dworkin’s semantic views help to buttress his case against legal indeterminacy. He also offers persuasive considerations in favor of the dominance of abstract intent in constitutional interpretation.

Brink’s interpretation of Dworkin is perhaps best understood as itself an exercise in constructive interpretation, which seeks to fit and make sense of Dworkin’s diverse claims, while showing his views in their best light. As such, it is bound to spark both interpretive and substantive disagreement. For example, there is some textual evidence that supports interpreting Dworkin as accepting a speaker’s meaning view rather than a public meaning view of the constitutional text. And some will be more worried than Brink about how to reconcile Dworkin’s constructive interpretation and the originalism of principle that Brink attributes to him. Some might question whether an originalism of principle is really a form of originalism at all, since it seems distant from the historical approach associated with originalism; whether it is depends, of course, on what makes a theory of interpretation originalist, which is a matter of some dispute.

In any case, the interest of Brink’s article goes well beyond whether it is ultimately convincing as an interpretation of Dworkin. His discussion reveals the key decision points in formulating an originalist theory and gives us some important considerations in favor of formulating originalism in some ways rather than others. Moreover, whether or not an originalism of principle was Dworkin’s own view, and whether or not it is plausibly a form of originalism, it is a view that merits serious attention. Of course, Brink does not, in Originalism and Constructive Interpretation, undertake to defend an originalism of principle as a stand-alone view; such an undertaking is more properly the project of positive theory construction rather than the project of an interpretive article. But he has succeeded in showing why we should be keenly interested in such a theory.

What’s “Private” about the Rule of Law?

Oct 20, 2016 Lisa AustinAdd a Comment

In their new paper, Is Rule of Law an Equilibrium Without Private Ordering?, Gillian Hadfield and Barry Weingast make a provocative claim about the rule of law: that private ordering is what produces and sustains it, not the institutions of government. This is an important contribution to rule of law debates, which are so heavily focused on public institutions and public law while leaving the role of private ordering and private law undertheorized. But see Private Law and The Rule of Law (Lisa M. Austin & Dennis Klimchuk eds.).

Hadfield and Weingast are social scientists, not legal philosophers. However, their work engages with many different strands of theoretical literature on the rule of law, including analytic jurisprudence, and generates interesting conclusions for theorists and not just social scientists. The heart of their argument is the claim that “[m]ost regimes with fully centralized enforcement do not predictably achieve rule of law as a consequence of the structure of the regime itself.” If the rule of law is achieved, it is not because of institutions but because of “the peculiar, historical and contingent facts of individual identity or the balance of power.” (P. 25.) In other words, if we think that government is “a single body with the power to both make and enforce the law” then we should not expect the rule of law to emerge. (P. 27.) What is needed for the rule of law to reliably emerge, they argue, “is an essential role for private, decentralized, enforcement of law.” (P. 27.)

At first glance, this does not look very different from the claim that law relies upon the self-application of legal norms by individuals—a claim that can be found in the jurisprudential literature concerned with the guidance function of the rule of law. But Hadfield and Weingast want to point to the role of decentralized mechanisms for enforcing norms. And they claim that what is required for people to voluntarily decide to participate in helping to enforce the law is more demanding that what is required for people to voluntarily obey the law. (P. 21.)

In focusing on enforcement, what Hadfield and Weingast attempt to do is to pry apart the idea that law is a centralized public institution from the idea that enforcement must also have these attributes. Law is not necessarily associated with centralized coercive enforcement. Legal order, on their view, “is a normative social order in which behavioral classifications are articulated and subject to modification by a centralized classification institution that possesses legal attributes.” (P. 19.) These legal attributes are those that track closely what many legal philosophers take to be the central features of the rule of law: universality; publicity; clarity; non-contradiction and uniqueness; stability; prospectivity and congruence; generality; impersonal, neutral, and independent reasoning; and openness. Their key point is that these legal attributes are only properly incentivized in a system of private ordering and not in a system with fully centralized enforcement.

In offering their behavioural insights into how the rule of law is produced and sustained, Hadfield and Weingast are primarily concerned with rule-of-law building projects. However, their conclusions can also contribute to rule of law debates within jurisprudence. Private ordering implies a strong role for individuals and, for Hadfield and Weingast, can involve the imposition of social sanctions like criticism and exclusion, the authorized private use of force, and the cooperation of private individuals in law enforcement. Shifting the focus of rule of law debates to the role of individuals would be a welcome development within the more theoretical literature. In this regard, there is excellent recent work by Gerald Postema on the idea of fidelity and the rule of law. He emphasizes the need for members of the polity to participate in holding each other accountable under the law. Hadfield and Weingast point in the same direction, but utilizing a very different framework, and more work in this vein would be welcome.

Although Hadfield and Weingast are concerned with how to establish the rule of law, their work could offer important insights into questions of what might contribute to the erosion of the rule of law in societies where it has already been established. For example, in many Western liberal democracies—often used as the models for rule-of-law projects—law enforcement efforts are increasingly information-intensive and rely heavily upon collecting information that is itself initially collected and held by information intermediaries such as telecom giants and the Facebooks of the world. This displaces the role of the community and individual participation in law enforcement, erasing the need for the decisions that individuals make about whether to come forward and tell the state what they have seen or what they know. And if the need to ensure individual cooperation is one of the mechanisms for incentivizing compliance with the rule of law, then moving towards enforcement models that bypass this cooperation raises questions about the potential erosion of compliance with the rule of law. This is practically important, but might also call for new theoretical models regarding what it means to constrain the state in the information age. See Lisa M. Austin, Technological Tattletales and Constitutional Blackholes: Communications Intermediaries and Constitutional Constraints (2015).

Whistling for the Dog in Affirmative Action

Sep 21, 2016 Daria RoithmayrAdd a Comment

The link between race and class inequality is a hot topic. The top two anti-establishment movements of the year are Black Lives Matter and Bernie Democrats, and the relationship between them is complicated. In addition, Donald Trump has built a campaign appealing to white middle- and working-class voters by blowing the racism dog whistle. Figuring out why those voters continue to support Trump despite (or because of) his racism is the question of the hour on my Facebook feed.

Which is why I was excited to see Khiara Bridges’ latest paper on class-based affirmative action (from here on, I’ll call it “class-based AA”) pop up in my inbox. Far from the heat of the election, Bridges has written a wonderful article that explores the race-class divide among supporters of affirmative action. In this paper, Bridges argues that class-based AA enjoys widespread bipartisan support because its beneficiaries are white. More specifically, she argues that continuing support for class-based AA depends on differentiating between poor whites as people who deserve to benefit from class-based AA and undeserving poor people of color, who should not. Indeed, she concludes, support for class-based AA might well dry up if people of color were to become class-based AA’s primary beneficiaries.

Bridges’ argument is a dog-whistle sort of claim, in which class-based AA supporters speak in code but often are more overt about their racial assumptions. Bridges’ argument is careful and nuanced. She develops a strong historical and empirical case against white supporters of class-based AA. In doing so, she refrains from the kinds of allegations of intentional racial conspiracy that made Michelle Alexander’s book The New Jim Crow a best seller. Her approach is more “here’s the evidence, sure looks fishy to me.”

The argument proceeds in three parts. In the first part, Bridges notes a potential contradiction in some vocal conservative support for class-based AA. Given conservatives’ lack of support for race-based affirmative action, one would not expect them to support class-based AA. After all, class-based AA is a form of wealth transfer that gives opportunity to the less qualified, who presumably will produce less wealth with the educational opportunity than a more qualified candidate. Conservatives are against anti-meritocratic wealth redistribution. And yet, here are Ward Connerly, Justices Scalia and Thomas, and Republicans in Texas all lining up behind class-based AA. How can we explain this contradiction?

In the second part of her article, Bridges builds a historical case to suggest that race and racism might be the answer to the contradiction. She has plenty to work with here. Others have written about Aid to Families with Dependent Children, and the way in which support for the social welfare program dried up when the program began to help more black unmarried mothers than white widowed mothers. The program was very popular when the public saw it as assisting white women who were poor through no fault of their own. Not so much when the beneficiary class shifted to black women, who were often single mothers via divorce and unmarried pregnancy.

Bridges draws on that history to suggest that the same dynamic might apply here, only in reverse. Conservatives who found recipients of race-based affirmative action to be undeserving now find the beneficiaries of class-based AA (who will include many more whites) to be deserving. Supporters like Scalia, Thomas, and Ward Connerly often emphasize the lack of fault on the part of those candidates who would benefit from class-based AA. In contrast, these supporters presume that beneficiaries of race-based affirmative action are not deserving, either because they are not sufficiently disadvantaged economically or because their disadvantage might be traced to their “culture” and not to structural racism.

The third part of the article constitutes a critique of class-based AA. Here, Bridges’ main critique is that class-based AA reinforces racialized notions of deserving and undeserving. Specifically, she points out that class-based AA would likely become unpopular if the main beneficiaries of the program were to become poor people of color from families of divorce or unwed mothers, or from non-English-speaking families.

To make her case, she draws in part on the country’s not-so-distant experience with welfare reform. She highlights the rhetorical references of personal responsibility and welfare queens that accompanied the Clinton 1.0 Administration’s decision to “end welfare as we know it.” In a more contemporary example, she points to Chief Justice Roberts’ opinion in NFIB v. Sebelius, the recent ruling on the Affordable Care Act. In his opinion, Roberts openly begrudges Medicaid expansion to people who live significantly below the poverty line, arguing that the more narrowly defined beneficiary group from the earlier legislation (blind, disabled, and elderly poor) was the nation’s neediest. Bridges concludes from such history that, at least among conservatives, support for class-based AA would shrivel if people of color were to dominate the beneficiary class.

This article is fresh and provocative, and sure to be a hit. I particularly admire how careful Bridges is to ground her work in history and to refrain from overclaiming. I am also very happy that Bridges has taken up the question of racialized poverty at length (she has several other papers on the subject). I’ve long said that critical race theorists ought to spend more time closely investigating the structural link between class and race, rather than seeing class as just an additional identity category with which to analyze identity more generally.

I had two quarrels with Bridges’ piece, both of which spring from how much I like the work. First, although I thought she refrained from vulgar racial conspiracy theory, I thought she could have spent more time exploring people’s good-faith motives for supporting class-based AA. More pragmatic conservatives suggest class-based AA as a compromise or common-ground position; she could have given more time to that argument.

Likewise, I wasn’t satisfied with her discussion of the Scalia argument that race-based AA is unconstitutional because it presumes that people of color suffer from disadvantage, and class-based AA does not. Scalia isn’t alone on that position. Sheryll Cashin (an African-American former White House advisor on urban neighborhoods and the daughter of civil rights activists) has also used this argument to defend her “place and not race” argument to shift to geography as the centerpiece of AA. In my view, Bridges’ response to Cashin—that liberals might act in good faith but still be subconsciously influenced by race—doesn’t really settle the question and smacks a bit of false consciousness.

Second, I wanted a more complicated structural link between race and the deserving/undeserving binary. Here’s a story to illuminate what I mean. When white soldiers returned from World War I to take up their jobs at the plant from blacks who had “filled in,” some government officials reclassified those jobs from unskilled to skilled. It wasn’t just that those officials were biased. It was also (more) that whites had had more shop training than had their black counterparts. Officials relied on levels of training to define the notion of skilled, and of course, levels of training are now and were then structurally correlated to race.

In the same way that notions of skill were racialized, notions of the deserving and undeserving poor in class-based AA are constructed not just by crude racial bias but also by structural things like connection to the criminal justice system. It might have been productive to explore Ward Connerly’s ideas about why criminals don’t deserve to take advantage of the social safety net when they get out.

That said, I am more than happy to have had the chance to quarrel with Bridges on these points. I know she’s also doing fabulous work on privacy and race, but I am looking forward to reading more work on race and class. I do wonder whether, owing to timing, this piece will be as celebrated as it should be. For the moment at least, class-based affirmative action won’t be as much in the limelight now that the Court in Fisher v. University of Texas at Austin has upheld race-based affirmative action.

Even so, there’s a presidential election and several Supreme Court nominations in our near future, so the issue could come roaring back sooner than we might hope. In any event, Khiara Bridges’ insightful discussion is terrific and a much-needed addition to the growing Critical Race Theory body of work on racialized poverty.

Taking Interpretive Statutes Seriously

Aug 5, 2016 Barbara LevenbookAdd a Comment

“Interpretation,” as used by Baude and Sachs, names the process that starts with legal texts and ends with their contribution to antecedent law. This is not the same activity as uncovering full linguistic meaning (though this may be necessary to determine legal contribution), nor is it extending or repairing antecedent law.

This article presents Baude and Sachs’s case that system-specific law governs interpretation of legal texts. In short, the positive law in particular legal systems generates interpretive principles that shape the legal content established by statutes (and constitutional provisions). The authors’ view rejects any theory of law or legal interpretation that insists, on conceptual grounds, that the materials for interpretation are common to legal systems or that mandates a standard of interpretation for parts of our system (e.g., the Constitution) based on conceptual claims alone (such as “the purpose” of a written constitution). Some of the examples Baude and Sachs offer of system-relative legal standards that I find plausible as governing interpretation are: the Dictionary Act, the “repeal-revival rule” of 1 U.S.C. section 108 (according to which new repeals don’t automatically revive old statutes), the general savings statute (according to which repeal does not erase liabilities arising under the old statute), and some traditional canons of interpretation such as the “Mens Rea Canon” and the presumption against retroactivity.

One of Baude and Sachs’s most successful targets is the simplest form of what Mark Greenberg calls the “Standard Picture” of interpretation, according to which the communicative content of a statute is its contribution to the law (because the statute “was authoritatively pronounced”). Larry Alexander’s speaker-intention theory is a version of this view. I have always viewed this simple Standard Picture as a nonstarter, since in American law a statute can be unconstitutional (and therefore make no contribution to the law) because of its communicative content. Baude and Smith supply many other examples from our legal system where the interpretation of legal texts fails to “track any coherent theory of linguistic meaning” (P. 10).

Many theorists would agree with Baude and Sachs’s general point that the answers to the question of the legal content of legal texts “depend on the other legal rules in place” (P. 5). (Think of those with a holistic, coherentist view of law, and anyone believing that the Hartian master rule contains an entire interpretive code.) Their specific claim that in American law, there are laws of interpretation is not new, as Baude and Sachs admit. Nor is their more general idea that the standards of correct interpretation vary across legal systems. Hartian positivism, which Baude and Sachs endorse, is amenable to these ideas; the rule of recognition picks out system-relative rules, some of which are about how legal texts contribute to law. But one needn’t be a Hartian, or even a positivist, on the nature of law to accept that there are system-relative interpretive rules of law. The Ronald Dworkin of Law’s Empire can accept this idea. If I understand him, so can Scott Shapiro. (Greenberg, however, could not. On his view, the basic rule for correct interpretation is always this: interpret according to a universal master formula that takes into account all the circumstances, including the existence of alleged interpretive materials. Any rule apparently derived from the universal master formula and one of a particular legal system’s alleged interpretive materials – e.g., a statute, a canon of interpretation – will be of the form, “Interpret such-and-such way as long as the universal master formula is thus satisfied.” Such a rule would not fit his account of law, for it is an immediate logical consequent of the universal master formula and does not arise in what he regards as the right way for law.)

Given these facts, it is not necessary to point out why endorsing a Hartian model of law might not be the best philosophical choice in a discussion of legal interpretation, particularly when the authors are identifying interpretive precepts, about which there is considerable disagreement, from court decisions and legal practice (e.g., concerning the Constitution). Even when the authors restrict themselves to alleged interpretive texts (statutes and judicial opinions), it is plain that Baude and Sachs are interpreting the material on problematic assumptions – e.g., that court decisions yield whole precepts, that the authors have correctly identified the relevant interpretive texts and have interpreted them properly (without recourse to the Standard Picture as default), that the product of this interpretation is itself a law. In general, Baude and Sachs leave mysterious the grounds on which they interpret the alleged interpretive material and ignore the problem of whether there are such grounds compatible with their claim about system-relative laws of interpretation. (I think there may be.) Nonetheless, these and other difficulties are largely irrelevant to what I take to be the authors’ main contribution.

As I see it, their main contribution to the broader philosophical literature on law is the case they make that how the contribution to law of legal texts depends on (certain) legal rules is determined by these rules, and that these interpretive rules exist in the way that other ordinary legal rules, including those established by the interpretation, do.

Their case has two parts. First, there is an argument by analogy from the (less controversial) existence in the American legal system of laws for interpreting legal instruments such as contracts and wills. Second, the authors demonstrate in detail, through their use of legal argument and their reminder of the use of it by judges and other legal experts, that legal argument in the U.S. goes beyond linguistic meaning of legal texts at crucial points. Instead, statutes and constitutional provisions are read, apparently for legal contribution, by applying standards often accepted as law purportedly drawn from other legal texts (sometimes rather straightforwardly) and system-relative legal practices. There is this interpretive practice, and although, as the authors admit, there is disagreement about its details, they contend—rightly I think—that there isn’t disagreement about its existence or all of the details. There are easy cases of interpretation.

This enterprise amounts to taking parts of the U.S. Code and other statutes purporting to govern the interpretation of statutes (as well as various interpretive practices) seriously. One can argue that Dworkin’s greatest challenge to H.L.A. Hart, one that shaped the discussion in legal philosophy for decades, was to take seriously the practice by judges and lawyers in hard cases of arguing in terms of discovering (rather than extending) law and to suggest that we credit these experts with knowing what they are doing. Baude and Sachs’s article is richer and more suggestive of interesting philosophical points than I have had space to detail, yet it can be read as posing an analogous challenge to certain theories of legal interpretation and of law.

Conceptual and Metaphysical Modalities in Jurisprudence

Jul 11, 2016 Kenneth HimmaAdd a Comment

Stefan Sciaraffa’s Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence is a review of a fine collection of essays edited by Luís Duarte d’Almeida, James Edwards, and Andrea Dolcetti, entitled Reading HLA Hart’s ‘The Concept of Law,’ published by Hart Publishing in 2013. While the volume contains many provocative and insightful pieces by leading theorists in conceptual jurisprudence, I want to focus on an important – and frequently overlooked – point made by Sciaraffa on the nature of the relevant sense of necessity in conceptual theories of law.

Sciaraffa’s essay makes a number of distinctions of theoretical importance, including the distinction between “constructed” and “wild” concepts of law; however, the most illuminating one, as it pertains to conceptual jurisprudential methodology, is between metaphysical and conceptual necessity. Sciaraffa defines “metaphysical necessity” as “concerned with identifying and explicating those features an object has by virtue of itself and irrespective of the way we conceptualise or talk about the object” (P. 392). He explains “conceptual necessity” as concerned with identifying “features that are true of law by virtue of the way we talk about or conceptualise the law” (Id.).

Sciaraffa believes that many theorists have wrongly claimed that the relevant modality for conceptual jurisprudence is metaphysical necessity, a feature that many of these theorists believe legitimately calls into question the very enterprise of giving an analysis of the concept of law. There are many influential theorists – most prominently, Brian Leiter – who have come to reject the project of conceptual analysis as resting on problematic foundations, which are commonly thought to be methodological in character.

Sciaraffa rejects the idea that the relevant modality is metaphysical on the ground that “no legal theorist has staked out a plausible account of such necessities in general or as applied to law specifically” (Id.). He argues, further, that “no legal theorist has offered a plausible account of how to separate those features that the objects that we refer to using the term ‘law’… have by virtue of themselves as opposed to those they have by virtue of the way we conceptualise them” (Id.). The use of the notion remains contentious to say the least.

It should be noted that Sciaraffa’s claims are somewhat stronger than they might seem given the charitable way in which he expresses them. Although Sciaraffa speaks in terms of a failure by legal theorists to justify the idea that the relevant modality is metaphysical necessity, the essay expresses a deeper skepticism about the relevance of metaphysical necessity to conceptual jurisprudence. Sciaraffa’s view seems to be the much stronger view that it makes little sense to think that law has any properties that are metaphysically necessary in the sense that they are essential properties that law has, no matter how we conceptualize them.

This stronger challenge should seem eminently sensible for a number of reasons. First, there is simply no denying that law is a social kind (i.e., a concept that depends for its content on human activities) that is artifactual in character. Neither positivists nor antipositivists can plausibly deny that law is a social institution – and, to my knowledge, no one does. Even the strong natural law theorist sees morality as operating only as a constraint on whether a social lawmaking practice can succeed in creating something that counts as law. It might be plausible to think that natural kinds (i.e., a concept that reflects the structure of the universe independent of human interests and activities), such as water, are best explicated in terms of metaphysical necessity. But the idea that the concept of a social institution that is manufactured by social practices, which include but are not limited to linguistic practices, is best explained by a form of necessity that is utterly mind-independent and hence independent of our social activities is deeply problematic.

Second, it is simply unclear how, as an epistemic matter, we could have access to the content of concepts that are objective in character. If the content of these concepts is determined in a way that is utterly independent of our practices and preferences, it is not clear how we could identify that content. We can verify the truth of the objective claim that the shape of the earth is roughly spherical because that claim, while the truth-makers are mind-independent, can be verified through sense experience. Insofar as the content of concepts cannot be verified by sense experience on the assumption that our empirical practices do not at all determine the content of the concept, all we have left to go with is intuition.

And there is simply no reason to think that intuition is a special faculty that is capable of discerning objective conceptual truths than it is of discerning objective moral truths. Intuitionism as an account of moral epistemology failed miserably; intuitionism as an account of how to determine the content of concepts on the assumption that the truth-makers of conceptual claims are wholly mind-independent is far less plausible. The only concept of law that we could possibly come to understand, as an epistemic matter, is the concept that is fixed by our core linguistic and legal practices.

The reason for this ultimately has to do with an important limit on our ability to know the world first identified by Kant. Kant famously claimed that we cannot know the world as it is independently of the “categories” we use to structure and give sense to our perceptions of the world. Kant distinguished between the thing “in-itself” and the thing as it appears to us, and argued that we can have knowledge of only the latter. The world does not come to us, in his view, unmediated through conceptual filters like those of space and time. How the world in-itself presents itself to us is mediated through these conceptual “categories,” which provide the world with a structure that can be processed by beings with brains and capacities like ours.

But insofar as we cannot know the world except through the filter of our conceptual frameworks, the only form of necessity that could be relevant in conceptual analysis is conceptual necessity. Conceptual necessity recognizes that the necessity of a proposition is relative to the conceptual framework in which it is processed, understood, and known. Such necessity is, thus, conditional upon the categories through which beings like us perceive and make sense of the world, and do not hold, as W.V.O. Quine put the matter, “come what may.” It is true that Quine used that language to delegitimize the general project of conceptual analysis, but his famous critique in Two Dogmas of Empiricism seems to presuppose – and implausibly, in my view – that the relevant form of necessity is metaphysical necessity.

Sciaraffa’s review essay might be comparatively brief, but it is rich in insight with respect to how we should conceive the project of analyzing legal concepts. The only real direction we can go in is to rely on the linguistic and legal practices that shape our intuitions about law, and these concepts shape our intuitions in a reliable way precisely because, as Raz observed, our practices construct those very concepts. Sciaraffa’s essay is a timely reminder about how the project of conceptual jurisprudence should properly proceed.