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The Human Condition And the Liberal Order

Nov 30, 2011 Sean Coyle1 comment

Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.

Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs.

Socialists rightly criticize conservatives for their failure to respond to vulnerability. Many of the things that make people vulnerable (economic poverty, health, treatment of minority groups) do not abate in the face of increased opportunity. A social philosophy which leaves people to sink or swim will not render vulnerable individuals more resilient in the face of their vulnerabilities, nor force them to become resilient enough to overcome them. Autonomy for Kant was never a condition of being that human beings actually manifest, but an aspirational condition that we everywhere fail to manifest. Is it wise to found a politics upon a character (the autonomous subject) that does not exist? Socialists connect vulnerability with injustice. Following their instinct for greater organization, they demand that help must be available to those who are powerless to take charge of their situation. Difficult to argue with, there is however no doubt that this creates new focuses for dependence. Socialists frequently confuse vulnerability with welfare need. Alleviating the effects of certain forms of vulnerability, socialists have therefore encouraged people to become vulnerable in other ways, reliant on systems of support over which they have no meaningful control.

These arguments about the organization of liberal society are constantly at risk of equating liberal order with the removal of vulnerabilities. For conservatives, nothing matters more than the elimination of structures which inhibit freedom. The defeat of this last enemy will allow men to escape all others: surely no one who is the author of his own situation can be afflicted by vulnerabilities? More aware of the enormous range of human vulnerabilities, socialists prefer to put the power of the state behind the effort to mitigate them. Vulnerabilities are directly, rather than indirectly, politicized. Equality is the primary consideration: if vulnerabilities cannot be eliminated, they can at least be neutralized. But socialists may then foster a dream which propagates beyond the confines of socialist ideologies: the idea of the ‘ideally just society’. Everything will be put into the balance! Conservatives and socialists both see vulnerability in all too structural terms. Vulnerability is not natural but ‘done to us’. The right structure – or absence of structure – will overcome it.

Fineman’s article reminds us of the important truth that vulnerability is a permanent feature of the human condition. A politics genuinely attuned to the realities of the vulnerable subject must do more than create modifications to the operation of the market. Its efforts must be directed not simply at the removal of disadvantage or inequality, but must learn to deal with the effects of ‘systems of disadvantage that are almost impossible to transcend.’ (257) It must understand that autonomy is experienced unevenly, an aspiration that ‘cannot be attained without an underlying provision of substantial assistance, subsidy, and support from society and its institutions’. (260) Liberals who are serious about the merits of liberal society must do more to cultivate autonomy. They must come to realize that the success of their political ideals rests upon ‘a more active and responsive state.’ (id.)

In one sense, the development of a more responsive state is not the answer to the problem. Desperately necessary for addressing the growing ‘welfare vulnerabilities’ experienced in the West, a more interventionist philosophy for the state leaves society vulnerable to the danger that liberals have feared above all others: authoritarianism. Flying from the cruelty and indifference of invisible hands, we risk falling into the hands of protective institutions which (in Kant’s view) ‘everywhere’ place ‘restrictions on freedom’, and in the presence of which there is no end to the abuses to which we are vulnerable. Fineman is very aware of the problem (274), but wonders whether it is possible to work toward a conception of an active state in non-authoritarian terms. For myself, I remain pessimistic about this possibility. It would depend upon a means of overcoming another, equally ingrained and ineradicable dimension of the human condition to which Fineman is perhaps less sensitive: the presence of selfish and brutal instincts (in traditional Christian terms humanity’s ‘Fallen’ nature, which Augustine aptly calls the libido dominandi), which operate everywhere to subvert or corrupt even the best human motives and achievements. Political theory since the medieval period has lacked a proper sense of the extraordinarily narrow limits within which human efforts (especially collective ones) can meet with success. Fineman shares with most liberals a much more optimistic sense of what can be achieved. Her analysis is nevertheless relentlessly honest and challenging of what liberals have achieved. It raises important questions that many liberals have neglected or otherwise deflected by their analysis. Most of all, it reframes debates about equality and liberal justice in a new and fresh and urgent way. The importance of its vision should not be underestimated.

The Province of Jurisprudence Determined

Nov 18, 2011 Mortimer Sellers

Robin West’s new book on “normative jurisprudence” should have an immense and lasting effect on American discourse about the law. This volume should be important for two reasons and in two senses of the word should: first, because Professor West has great authority in the American legal academy as an early and much-admired proponent of feminist jurisprudence, law and literature, and critical legal studies; and second, because she is in this volume on almost every point and in almost every way correct about the purpose, value, and nature of jurisprudence and the law.

I distinguish two senses of the word “should” in this way because the central argument West makes is that although both the “is” (predictions about existing power and authority) and the “ought” (justice) matter in understanding the path of American jurisprudence, the latter is more important, and much overlooked.  West calls for a renewed “normative jurisprudence”, by which she means a jurisprudence dedicated to studying not primarily what the law is, but what it ought to be — how to make the law more just.

For the most part West’s advocacy restricts itself to mapping the province of jurisprudence — what “jurisprudents” (as she calls them) ought to be talking about — which is justice. She doesn’t say as much about what justice is or could be in practice. But simply to speak of “justice” or “normative” jurisprudence at all commits West to what she recognizes must amount to a revival of the secular natural law tradition. And she goes further: Robin West embraces the ancient doctrine that laws are and only can be just to the extent that they advance the “common, human good”. Brava!

When West insists that the study of jurisprudence (properly so-called) requires the pursuit of just laws through a better understanding of justice, the human good, and human nature, she repeats simple truths well stated and restated by Aristotle, Marcus Tullius Cicero, Thomas Aquinas, Thomas Paine, John Adams, and most students of the law in most cultures for most of human history — but oddly absent in the discourse of contemporary American lawyers and legal academics. The bulk of this volume is dedicated to gently and sympathetically explaining how and why American jurisprudence went off the rails — and eloquently, persuasively urging her colleagues back onto the right track.

This book will be influential in large part because West takes such trouble to address the fashions and obsessions of her errant contemporaries. The three main chapters engage (seriatim) proponents of what West identifies as the three currently dominant jurisprudential traditions of (1) natural law, (2) positivism and (3) critical legal theory, represented in American legal discourse by (1) Ronald Dworkin and Lon Fuller, (2) Oliver Wendell Holmes, Jr., and (3) Janet Halley — all indulgently chided for slipping away from the earlier and more ambitious jurisprudence of (1) Thomas Aquinas, (2) Jeremy Bentham, and (3) Peter Gabel and Roberto Unger.  What Aquinas, Bentham, Gabel and Unger have in common — West also mentions John Finnis — is their commitment to advancing a “moral brief”: their attempt to explain how laws and the world could be made to be more just and therefore less oppressive to real human beings.

This is indeed what lawyers, legislators, and law professors ought to be doing, but I cannot help feeling that in her effort to persuade by offering an “internal” critique of contemporary jurisprudence, flattering each theory’s intentions, West is too kind to legal positivism and the critical legal studies movement, and unfair to “liberals” such as Ronald Dworkin, who try to make American law live up to its declared ideals. Briefly, the father of legal positivism wasn’t Bentham, but Hobbes, and the essence of positivism has always been the promotion of stability and legal certainty at the expense of justice. Similarly, the essence of CLS was always the denial of (moral) truth and (legal) constraint, in order to empower ones allies and friends. (And the refusal to accept that any idea or concept has an “essence”, which is why I so delight in saying so.)

These last three sentences lost me half the readers who made it this far, which is why perhaps West’s approach is best — to show that in fact we all in the end agree (or would agree if we thought about it) that the only good purpose of law is justice.

This makes it doubly surprising when she turns on Dworkin for taking a similarly “internal” view of the United States Constitution and the common law, interpreting them in the interest of justice, and therefore legitimating (as she sees it) a profoundly unjust system. This criticism of constitutionalism needs to be argued for, not asserted, and leads to my one criticism of this book, which is that it too easily attributes the injustices of the United States to the American legal system, and not primarily to the judges, lawyers and above all law professors whose pernicious doctrines deny justice as the proper purpose of law and the state.

But in the end these differences are matters of tone and law school generation. West studied under liberals and saw the dangers of complacent constitutionalism. I studied under crits and saw the damage of self-indulgent antinomianism. What we both saw and what anyone must know who can see or hear or feel or live in America today is that injustice is everywhere and often supported and advanced by the very laws and legal system of which we are the priests and expositors in our law schools, courts and classrooms. To serve without question makes us complicit in oppression.

Robin West has done a tremendous service by reminding American lawyers that jurisprudence and the law must be normative to have any value at all — and that it matters which norms these are. “To willfully fail to act … is shameful” she tells us.  I agree.

Structure and/or Culture

Oct 14, 2011 Daria Roithmayr5 comments

Last fall, the New York Times reported that in the halls of academia, studying culture was no longer, like Lord Voldemort, “that which must not be named.” Culture was officially back on the poverty research agenda. According to the story, much of this newfound respectability had come courtesy of William Julius Wilson, the Harvard scholar who has long argued on both culture and structure fronts. In 2009, Wilson published a book, More Than Just Race, in which he marshaled the best of sociological research to argue that both structural barriers and cultural impediments keep poor people of color trapped in poverty. In the end, Wilson concluded that the structures of racism and the globalizing economy matter far more than the cultural behavior that conservatives love to blame. But in the essay that this review focuses on, Wilson focuses less on which trumps which. Instead, he makes a strong case for a “unified framework” to integrate both structure and culture.

If I might put the argument in a stylized form, Wilson shows in essence that structure and culture are related to each other in a positive feedback loop, in which structure shapes culture, and culture in turn shapes and contributes to structure. So for example, Wilson points out the way in which segregation and a globalizing economy produce informal illegal economies, in which the “code of the street” and distrust of the police become commonplace cultural norms as rational responses to illegality and isolation.  These codes of the street and their accompanying frameworks of meaning—distrust of the police, for example–contribute in turn to the perpetuation of segregation and diminished access to jobs. And the cycle goes round and round. In integrating structure and culture into one analytical framework, Wilson continues to make a strong case (as he has for twenty years) that the study of culture should enjoy full respectability in the academy. It seems left academics are finally listening.

But it wasn’t always so. Until recently, in the long-running and often tedious debate about the causes of persistent inequality, people who did work on persistent inequality fell into two camps, largely defined by political ideology. The structuralists, or those on the left, emphasized structural causes, like residential segregation but didn’t say much about culture. The culturalists, or those on the right, focused on cultural traits like teen pregnancy and the propensity to work in unskilled jobs that don’t require English. The structuralists on the left accused anyone in their ranks who was working on culture of “blaming the victim.” The culturalists on the right focused on issues of personal responsibility and cultural deficit, and said next to nothing about structural issues like job access.

But why choose sides in that endeavor, asks Wilson? In both the book and the essay, Wilson points out that focusing on either structure or culture to the exclusion of the other offers an analysis that is incomplete. For Wilson, social structure refers to the social positions, social roles, and networks of social relations that configure people into particular positions and relationships. Structure is made up of two more specific categories of behavior: social acts, like stereotyping, discrimination and exclusion (of the individualist sort), and institutional social processes, like racial profiling, racial tracking in schools and Jim Crow laws of segregation. With regard to social processes, Wilson includes not just the obvious but also processes that are more indirectly connected to race–like the globalized and technology-driven economic displacement that disproportionately affects people of color because they lack skills and spatial access to jobs, owing to past discrimination.

In Wilson’s view, culture includes two categories of collective behavior—first, national beliefs and viewpoints on race shared by society at large, and second, intra-group beliefs, habits, modes of behaviors. This latter category includes (most importantly for Wilson) cultural frameworks of meaning—shared visions of human behavior and of the rules of meaning connected to that behavior. In social capital terms, for example, beliefs about who is trustworthy might be a cultural framework connected to decisions about whether a person ought to refer a friend or family member to one’s own employer for a job if she thinks her reputation might be on the line.

In this essay, Wilson explains that structure—e.g., segregation and poverty—produces particular cultural practices and frameworks of meaning that in turn shape the response to, and indeed cause, poverty. Referring to Elijah Anderson’s work, for example, Wilson notes that the “code of the street” maxim to “keep to yourself,” can be understood as both an adaptive trait that promotes safety in unsafe Philadelphia neighborhoods where people feel unable to rely on the police and an impediment to forming resource networks that deliver material and informational support.  Likewise, from Sudhir Venkatesh’s work, Wilson points out that the “code of shady dealings” that emerges to mediate disputes in a city’s underground economy both adaptively facilitates relationships in that economy and impedes integration into a broader society. Thus, cultural modes of behavior both reflect and create structure, in a positive feedback loop that defies dissection. And such behavior is not just rational, but also cultural, in that it reproduces itself through social learning, from parents and from peers.

In my enthusiasm for the argument, I am happy to be critical at the same time. I want Wilson to be even more explicit about the crucial theoretical move from culture back to structure in the feedback loop. I know the standard conservative arguments about the way in which teen-age pregnancy and lawlessness cause racial poverty. Are Wilson, Anderson and Venkatesh making the same cause-and-effect kinds of arguments for this part of the feedback loop? Does their “culture causes (or shapes or contributes to) poverty” half of the loop look the same, or differ in any theoretical way from conservative claims, beyond adding the other half of the “poverty causes culture” leg of the feedback loop? Hard to say from the essay, though Wilson says more in the book. And certainly this is a question that dances close to the perennial “blame the victim” controversy.

I also wonder whether the argument to pay attention to “culture causes structure” might be badly timed, post-economic crash, when structure seems to dominate the landscape. Recent research documents that the recent economic crash rolled back wealth gains for a large section of the US populace. To be sure, wealth for black and brown plummeted far more so than for whites.  But many middle-class whites have now felt the pinch if not the pain of displacement and job loss, more than ever before, and even the country’s biggest banks have become beneficiaries of affirmative action of a sort, as they struggled with the fallout of a major “structural adjustment.” Maybe this is the time where scholars should be hammering home arguments about structure, with less reference to the link to culture and more reference to experiences like straight-up access to jobs. Focusing on culture might divide where references to common experience might unite.

These are all minor quibbles, of course. Wilson ends his essay by joining Orlando Patterson to argue against political correctness–studying culture does not require that we ignore or downplay structure. I heartily agree. If the New York Times report is any indication, young scholars on the left are also now listening. Perhaps, post-economic crash, conservatives will now be willing to listen to arguments about structure as well.

Law Through the Prism of Planning

Sep 12, 2011 Mark Greenberg

Scott Shapiro’s splendid new book offers a novel theory of the nature of law: legal systems are essentially systems for complex, impersonal social planning, and legal norms are plans. The book provides a new perspective on law, which is both refreshing and fruitful. By thinking about the origins, purposes, and essential features of plans, we gain insight into law. A significant side benefit is that the book connects law to topics in contemporary philosophy of action.

Legality has more virtues than I can discuss here. To begin with, although the book is a highly original contribution to the philosophy of law, it presupposes relatively little background. It is also extremely clearly and engagingly written. The book would therefore make a superb text for a law school, advanced undergraduate, or graduate course. And, because Shapiro frames the issues in new ways, even those portions of the book that introduce and discuss familiar positions and issues provide much food for thought for specialists as well as the more general reader.

For example, early in the book, Shapiro explains what he calls “the Possibility Puzzle.” Legal norms come from institutions with the power to create legal norms, such as legislatures. An institution has the power to create legal norms because of a legal norm that gives it that power, for example a constitutional norm that grants legislative power to a particular body. But where does that norm come from? As Shapiro explains, there is a chicken and egg problem here. In order to solve the problem, we need either a legal norm that does not come from an institution with the power to create legal norms or an institution that has the power to create legal norms but does not derive that power from a legal norm.

Shapiro argues that Hume’s law – an “ought” cannot be derived from an “is” – is a severe obstacle to legal positivist attempts to solve the Possibility Puzzle, because such attempts purport to derive legal norms from nonnormative social facts. HLA Hart’s account is a case in point. According to that account, a convergent practice of legal officials is supposed to generate a social rule, the rule of recognition, that solves the chicken and egg problem. Shapiro offers a subtle interpretation of Hart’s approach to the challenge posed by Hume’s law and argues that, in the end, the approach fails.

On the other hand, however, Shapiro maintains that anti-positivist or natural law attempts to solve the Possibility Puzzle run into the “Problem of Evil”: grounding legal authority in moral authority or moral norms makes it difficult to see how evil legal systems and evil legal norms are possible. Shapiro uses these engaging and easily understood framing devices throughout the book, for example in bringing out the problems in other legal positivist accounts and in arguing for his own theory.

One of  Legality’s great strengths is that, although Shapiro is on the legal positivist side of the positivist/anti-positivist debate, his book engages with anti-positivist theorists to a much greater extent than many legal positivist works. Shapiro is sympathetic to anti-positivist motivations and tries hard to respond to the arguments of anti-positivist theorists. In some instances, he makes substantial concessions to their positions.

An example is that Shapiro agrees with the natural law claim that law has a moral purpose, and that, to the extent that it fails to serve that purpose, it fails to do what it is supposed to do.  Similarly, Shapiro rejects Hart’s claim that legal terms such as “obligation” have a different sense from the corresponding moral terms.  He holds that the law uses these terms to make moral claims.

Another notable example is that Shapiro recognizes that Ronald Dworkin has made extremely serious criticisms of legal positivism—criticisms to which no positivist has yet adequately responded.  Shapiro devotes a couple of chapters to trying to answer Dworkin. (One important point of disagreement: in my view, Shapiro is wrong to maintain that Dworkin’s theory of law depends on a claim about the intentions of legal creators – that they are “necessarily committed to a ‘best-lights’ analysis.” 308.) In sum, one reason Shapiro’s book is valuable – and admirable – is that, rather than passing natural law theory by, it seriously engages with and tries to respond to it.

Most significantly, Legality develops an original account of law in terms of the notion of a plan. A particularly rewarding aspect of the book is its discussion of plans and their relation to legal systems and legal norms. In his appealing and lucid style, Shapiro explores the characteristic features of plans, the needs to which they are responsive, the way in which they are created, and their relation to rationality. He makes the ingenious proposal to understand legal systems as complex systems for impersonal social planning and to understand legal norms as plans, including plans for planning. Like a legal system, planning is an extraordinarily effective instrument for guiding and organizing the conduct of agents who have complex goals but limited rationality and varying degrees of trust in themselves and each other. For example, like legal norms, plans can be created in advance to compensate for anticipated failings of rationality or lack of trust and can be left incomplete and filled in as more information becomes available.

Plans are specialized norms that have just the features, Shapiro argues, that are needed to solve central problems in legal philosophy. The solution to the Possibility Puzzle, for instance, is to be found in the possibility of planning: “we are able to create law because we are able to create and share plans” (181). In Shapiro’s view, the chicken and egg problem is solved because the power to plan derives from norms of instrumental rationality that are not themselves created by people. Because legal norms ultimately rest on these norms, Shapiro’s account is consistent with Hume’s law.

Shapiro thinks that plans are positivistic, i.e. that the content of a plan depends only on nonnormative facts. Because, on his account, the content of the law is the content of a plan – typically, of course, a highly complex plan with many sub-plans, sub-sub-plans, and so on – he concludes that his theory vindicates legal positivism. (More precisely, the content of the law comprises not only the content of the plan but also certain entailments of it.) I want to raise a question about this aspect of Shapiro’s theory. If a terrorist has a plan to blow up a bridge, the content of that plan plausibly is simply whatever he intends. Shapiro sensibly takes the position, however, that in the case of the content of the law, the content of the relevant plan is not wholly constituted by the content of any actual intentions or other psychological states (though the content of various intentions of diverse people may be relevant to the content of the plan). As I would put it, the relevant plan is imputed or constructed.

I believe (though I cannot argue here) that once we are in the business of imputing or constructing the content of the relevant plan, we cannot avoid relying on values to do so. (For related discussion, see my “The Communication Theory of Legal Interpretation and Objective Notions of Communicative Content”; see also my “Legislation As Communication? Legal Interpretation and the Study of Linguistic Communication” in A. Marmor and S. Soames, The Philosophical Foundations of Language in the Law (Oxford: OUP 2011), pp. 217-256, especially pp. 232-233 and section 6.) Shapiro agrees with this point, but he thinks that the relevant values are those of the legal system.

In my view, however, the very same difficulty arises when we ask how the practices of the legal system determine its values. Shapiro says that interpreters must extract the objectives of the legal system from the texts and other practices. But, to stay with this epistemic way of talking, an interpreter cannot move from facts about what various people did, thought, and said to conclusions about the objectives of the legal system without deciding which actors’ decisions or utterances are relevant to the legal system’s objectives, precisely what bearing those events have, how much weight they deserve, and so on. It is difficult to see how the right answer to such questions could not depend in part on moral facts, such as facts about fairness and democracy. For example, a particular past decision might be relevant, and relevant in a particular way, because it would be unfair for it not to be relevant in that way, given the expectations that it reasonably created; conversely, another decision might not affect the content of the plan because, given who made the decision or how it was made, it would be unfair for that decision to have a bearing on the content of the plan.

So I suspect that, if Shapiro is right that the content of the law is the content of a plan, whatever may be the case with respect to other kinds of plans, the content of the relevant plan necessarily depends on moral facts. My disagreement on this issue does not affect my overall judgment of the book: the interest, power, and illumination of Legality far transcend its implications for the legal positivism/anti-positivism debate.

Planning Ahead! (in Jurisprudence)

Sep 12, 2011 Ekow Yankah

Analytical jurisprudence has a peculiar status in American law schools to say nothing of philosophy departments. Most law professors find it an utterly inscrutable or arid project. More generous souls have the vague impression that it is important and like that one or two of their colleagues engage in it, but their gentle forbearance is not to be mistaken for interest. Even those steeped in the subject are often discouraged by the increasing narrowness of the “What is Law” question. It takes a good deal of squinting to see the live question surrounding the nuanced positions on the extent to which morality determines whether something can be considered law; that is, the “validity conditions of a legal system.”

Against this rather gloomy landscape, Scott Shapiro has introduced an illuminating new book, Legality. Though there are few who are as knowledgeable about analytical jurisprudence as Shapiro, his book is admirable not for its attempt to dazzle with intricacies. Rather, Shapiro’s work is laudable because it makes accessible decades of debate in modern jurisprudence while still providing a novel contribution. Most importantly, Shapiro revives the heartbeat of the debate, showing why it matters and synchronizing it with legal issues recognizable to those outside of the small world of analytical jurisprudence. This accessibility means that those who know this debate will find the preliminaries unnecessarily long, a quarter of an already rather long book. Yet, it is no small thing that Shapiro manages to explain half a century of thick debate in a way that interested audiences of lawyers, and perhaps more immediately relevant, undergraduates and law students can understand its contours. Speaking for the many professors who have shied away from teaching the subject, Shapiro’s book makes one reconsider the profitability of reintroducing this debate in the classroom.

Quibbling about jurisprudence classics with Shapiro may be its own sort of fun, but it would distract from Shapiro’s real accomplishment–breathing fresh air into the debate. Shapiro’s novel contribution is to apply the insights in philosophy of action, particularly Michael Bratman’s theories of intentions, to show how law can be seen as a model of social planning. Shapiro attempts to show why a planning theory leads to a positivist theory of law, excluding morality from determining what constitutes law and showing the practical effects for current legal questions.

The core claim of the book is illustrated in a simple and charming story of cooking dinner with a friend. From this, Shapiro spins a tale of the formation and organization of a cooking club to highlight the perfectly quotidian intuition that whether having dinner alone or organizing a cooking club, planning is necessary to achieve our basic goals. The more complicated our goals the more sophisticated our plans must become. Further, and this is crucial for Shapiro, in order to be useful a plan must possess a certain amount of stability. There is no point in painstakingly planning a gourmet meal if when you walk into the grocery store you wonder anew what to cook. Plans can be incomplete or revised in light of new information, but as a general matter plans must resist constant tinkering or reevaluation. Echoing Raz on authority, Shapiro concludes that plans must be accessible without re-evaluating the underlying merits on which the plan was originally based.

This telegraphs the plan of attack. Shapiro uses an analogy between law and the plans generally to generate “a planning theory of law.” On Shapiro’s account, legal institutions are forms of planning which allow large groups to achieve that which they could not otherwise. Critically, just as evil plans are still plans allowing human beings to channel their agency, the plans that constitute law need not be moral to constitute valid law. The only “moral aim” of law is a minimal one; solving the problems that arise as social tasks and ambitions grow more complex. Arguing that law, like plans, must resist reevaluation of its underlying (moral) merits to be useful grounds Shapiro’s positivism on novel grounds.

Elsewhere, I have argued for positivism premised on a conceptual connection between law and coercion. I argued both that coercive norms distinguish the normative systems best described as law and that alternative models of positivism can not adequately defend positivism’s holy grail, the separation between law and morality. Even Shapiro’s thoughtful dinner model illustrates why. Plans can do a great deal to coordinate action and facilitate massive socially coordinated events without a commitment to excluding arguments grounded in morality. “My wife and I will move to Paris, find new jobs and raise our kids in the best way possible” is a plan, even if incomplete and certain to lead to revaluation and argument down the road. “Do not subject others to cruel and unusual punishment” is also “a plan” of sorts even if it leads to the same. Likewise, the 14^th Amendment might rule out discrimination against African-Americans while leaving unspecified whether the elderly are protected against age discrimination. Nor is it dispositive, as Shapiro argues, that moral criteria will not only leave some plans undetermined but may, on occasion, unsettle plans that were once settled.  One need only avoid plans that would be radically and uselessly undetermined.

Further, even if plans need to be relatively stable, it’s unclear that one would want this stability at the cost of excluding moral criteria. Plans are open to moral evaluations from the inside. We criticize, guide and correct our plans with moral reasons not simply evaluate the attractiveness of completed plans with a removed eye. This is especially true because, as Shapiro points out, the plans that constitute law are not an equally shared activity; for many people law represents a set of plans which are imposed upon them. It is this criticism which drives critical (race, feminist, class, etc…) legal views. (Notice Shapiro falls into a common habit of using examples that feature roughly democratic and morally innocuous circumstances.) Given his interest in the ways in which law places people in varying power roles depending on the extent to which they are trusted to properly fulfill those roles, it is strange that Shapiro spends so little time on this. Perhaps this is because for Shapiro, while there is a reason for many of us to adopt the plan in effect around here, he is agnostic about any general obligation to follow the law.

Of course, the point of the positivist project is to establish that the existence of laws are one thing and their morality another. Replying to those who argue that the moral criteria within law can generate legal rights in the same way that morality can guide plans by repeating that planning forecloses this leaves those seeking to engage jurisprudence exasperated or befuddled. Further, to ultimately conclude that the distinction between morally derived legal rights and “law” proper turns on Davidson’s model of the different ways in which obligations can be described will seem to many a terribly slender reed for such an important claim.

This brings us to the most global concern with Shapiro’s model. Why should one accept that law is perfectly analogous to the kind of positivistic planning Shapiro proposes? Many thoughtful judges, lawyers and scholars think quite the opposite. One of the things law allows is for us to frame deep practical moral disagreements of a certain kind and discuss, argue, and alter them while continuing to govern society. While Shapiro is not opposed to this objection, pointing to scholars such as Jeremy Waldron and Akhil Amar, he holds these claims exist outside the law. That claim, I have suggested, cannot come solely from describing law as a type of plan.

Lastly, Shapiro is to be much admired for an intricate discussion tying the core questions of legal philosophy to the legal questions of our day. Shapiro proposes that the “planning model” of law can answer not only “retail” questions of law, but inform broader questions about the amount of discretion officials should wield, their interpretative methodology, etc. Despite lacking the space to discuss these claims, the attempt to link the debates in jurisprudence with live questions may be the most important spirit of the text. While the success of that claim ultimately turns on whether one is convinced by Shapiro’s model, it cannot be doubted that Shapiro’s book, which clarifies and advances analytical jurisprudence, is bound to be a classic text.

Playing by the Rules

Aug 1, 2011 Connie Rosati

What does sport have to do with jurisprudence?  Not a great deal, one might think. To be sure, particular sports, like legal systems, are rule-governed practices. This commonality and the relative simplicity of sports makes them useful as a source of examples that might be deployed to explain more complex legal-theoretical ideas.

Philosophers of law and legal theorists commonly use sports examples in just this way. Most famously, H.L.A. Hart used examples from games and sport both in criticizing other views about the nature of law and in clarifying his own distinctive view. In his critique of Austin’s command theory of law, for example, Hart invoked the scoring rules of a game as he explained why nullification under the power-conferring rules common to modern legal systems cannot be assimilated to sanctions under duty-imposing rules. (H. L. A. Hart, The Concept of Law). And he adverted to chess and cricket to explain one of his most distinctive theses—that rules, and so law, have an “internal aspect.” Chess players, he observed, do not merely have “habits of moving the Queen in the same way,” which an external observer might record. In addition, “they have a reflective critical attitude to this pattern of behavior: they regard it as a standard for all who play the game.”

Given the frequent appeals to sport in the work of legal philosophers, we should be surprised at the scant attention that has been paid to its complexities. So Mitchell Berman observes, in his wonderfully engaging essay on the “jurisprudence of sport.” As his discussion makes clear, sport isn’t merely a source of useful examples. On the contrary, “sports leagues constitute distinct legal systems,” he explains, sharing many features in common with legal systems proper, such as primary and secondary rules and institutional actors who function like legislators and adjudicators. For this reason alone, sport merits serious and sustained investigation by legal theorists.

Berman launches his discussion with a detailed recounting of the semi-final match of the 2009 U.S. Open. Serena Williams, the “odds-on favorite to win her third grand slam tournament of the year,” faced off against Kim Clijsters, in her surprise return to the tennis world. Williams lost the first set to Clijsters and was down 15-30, when a line judge called her for a foot fault on her second serve. Williams lost it, in more ways than one. Her outburst and threatening behavior toward the line judge resulted in a one-point penalty and a win for Clijsters, as well as additional penalties and universal criticism. As for the substance of her complaint, however, some sided with Williams, arguing that you just don’t call a foot fault at such a critical juncture. The position of Williams’ defenders rests on what Berman calls “temporal variance”—the view that “at least some rules of some sorts should be enforced less strictly toward the end of close matches.”

Having thus set the stage, Berman’s article goes on to investigate the “contours and bases of optimal temporal variance.” But this, he quickly makes clear, is just the “surface agenda.” His grander ambition, he explains, is to illustrate the worth of theoretical investigation of sport in order to encourage the development of a jurisprudence of sport. And yet he hints at a still grander ambition when he offers that one might see his article as “a manifesto of sorts for an enlarged program of jurisprudential inquiry.”

Berman offers persuasive considerations in favor of this broadest aim. Sport and law confront many of the same issues, he observes, including when and where to guide conduct by formal written norms rather than by informal social norms, when and where to make use of rules rather than standards, when and where to leave adjudicators with discretion, and how appropriately to limit that discretion. Sport and law must each manage epistemic uncertainty, as well as the normative uncertainty that arises when gaps are exposed between “the law in the books” and “the law in action.” An enlarged jurisprudential inquiry would improve our understanding of the “phenomena and dynamics” common to law and sport. The development of a jurisprudence of sport might prove particularly useful on the law side, not only because the rich examples sport provides can be plumbed as a source of jurisprudential hypotheses, but also because our intuitions about particular practices common to both are, in the sports context, “less likely … to be colored or tainted by possibly distracting substantive value commitments and preferences.”

Berman tells us a bit about where he anticipates that his own arguments might yield dividends for legal theory. Without elaborating, he offers that in light of his arguments, we can better understand the lost chance doctrine in torts, the difference between claim-processing rules and jurisdictional rules, and the granting of equitable remedies in certain contexts such as appellate litigation. Whatever the import of a jurisprudence of sport, and of Berman’s arguments in this article for the particular legal-theoretical issues he identifies, I suspect the broader inquiry Berman envisions may yield equally large dividends for more general legal theory.

Viewed in its entirety, Berman’s exploration of temporal variance and the rule-governed practices of various sports provides a compelling corrective to the temptation to think of rules as functioning to settles issues, and to settle them in particular by precluding appeal to the reasons for the rule—the underlying aims or standards the rule serves. Rules no doubt sometimes settle issues and always have some tendency to constrain, or better, to guide decision making. And yet as Berman’s essay illustrates, even the formal invariance of a rule does not always settle all questions we might have about the rule and its proper application “in action,” and not simply because of the complex interaction of the rules of a practice.

What makes his essay compelling in this way is precisely that if there are any practices in which we might be inclined to think of rules as operating pretty straightforwardly, surely sporting practices are among them. But if playing by the rules can be so complex and controversial in sport, where matters are not of such great moment, then so much the worse for law. Of course, one might naturally wonder whether puzzles of the sort Berman considers surrounding the rules and “rulified standards” in sport have important relevant counterparts in the law. More deeply, one might wonder whether the distance the study of sport allows from the evaluative commitments and preferences that operate when we consider law is such a good thing for jurisprudence. For a critical difference between law and sport is that legal issues do engage the values, interests, and concerns most fundamental to human life. The influence of our evaluative commitments and preferences can be distorting, but it can also help us to see things rightly.

As I suspect Berman would correctly point out, the expansive jurisprudential inquiry he advocates need neither assume near parity nor overlook how values can correct our perceptions and judgments. To be sure, among the things we would want to learn, and would learn, from a jurisprudence expanded to include sport are the limitations of sport for understanding as normatively rich a system as law. But what we learn about that also stands to improve our legal jurisprudence.

Mitchell Berman’s essay is beautifully written, rich in detail, and deep in its exploration of the complex interplay of the rules of sport and the distinctive aims and excellences that form the “internal morality” of particular sports. I found it thoroughly fascinating from start to finish and was left, as someone with no particular interest in sport, with an appreciation of why people as smart and insightful as Berman would find it so gripping. One can only hope that others will take him up on his invitation and that Berman himself will, in future work, begin to bring the seeds he has planted in this essay to fruition.