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Particularism, Telishment, and Three Strikes Laws

Jun 30, 2011 Michael Green

Although this article appears to be about the permissibility of aggressive anticrime measures, it really concerns particularism in ethical theory.

Three strikes laws, zero tolerance policies, and the like have been criticized for violating nonconsequentialist restrictions on punishment. According to this criticism, when the state sentences a former felon to 25 years in prison for stealing three golf clubs, see Ewing v. California, it acts improperly because it imposes a sentence more severe than the defendant deserves for the crimes he has committed. That such a restriction on punishment exists, it is claimed, can be shown by considering telishment (short for “teleological punishment”), in which the government intentionally punishes someone it knows to be innocent because crime will thereby be prevented. Although telishment would, ex hypothesi, have good consequences, it is nevertheless wrong. And so–-proceeding according to what Brand-Ballard calls a generalization argument–-punishment under three strikes laws must also be wrong, for it shares all morally relevant intrinsic features with telishment. Both, after all, impose a quantum of undeserved harm.

Brand-Ballard challenges not merely this criticism of three strikes laws, but also all generalization arguments, in which a policy is held impermissible because it shares all its morally relevant intrinsic features with another policy that is clearly impermissible. He asks us to consider an act of punishment that is clearly permissible–say, a 5-year prison sentence for bank robbery. Since this sentence inevitably imposes harm upon the punished’s spouse (the “collateral damage” of the article’s title), he argues it also shares all morally relevant intrinsic features with telishment. The spouse, like the telished, does not deserve harm, although imposing it might have good consequences.

Of course, Brand-Ballard’s argument can work only if the harm to spouses that arises from imprisonment shares all morally relevant intrinsic features with telishment. The most important challenge he must face is that the doctrine of double effect is a morally relevant intrinsic difference between the two. The state, one might argue, does not intend to harm the spouse, but merely foresees the harm as a side-effect of the imprisonment. In contrast, the telishing state intends the harm suffered by the scapegoat. Although Brand-Ballard does not deal with this objection with quite the care one might wish, I think he is right that the doctrine of double effect cannot be used to distinguish the two.

His best argument is that the coercive separation of the spouse from the prisoner is often an intended quality of the punishment. The state wants the prisoner to be denied the companionship of the spouse. To be sure, one might argue that it does not really want the spouse to be denied the companionship of the prisoner. If it could separate the prisoner from the spouse without separating the spouse from the prisoner, it would. But here I think Brand-Ballard could respond that we might just as well say that the telishing state doesn’t really want the harm to the scapegoat–if it could bring about the crime reduction without the harm, it would.

Given that telishment, three strikes laws, and imprisonment without unlimited conjugal visits share all morally relevant intrinsic features, what does Brand-Ballard think follows? Not that prisons must allow unlimited conjugal visits, and not that telishment should be permitted. He does not even take a stand on the permissibility of three strikes laws. His point is that our moral assessment of all of these policies cannot be made without a consideration of their extrinsic features.

Notice that this is not necessarily consequentialism. He leaves open the possibility that considerations other than consequences matter. Rather, he borrows a theme from the particularists: the way that intrinsic considerations matter is never invariant across extrinsic contexts.

The common view is that telishment is wrong because it violates nonconsequentialist restrictions protecting the scapegoat. Likewise, imprisonment without unlimited conjugal visits is fine, because the prisoner’s spouse has no comparable nonconsequentialist protection of her interests. Brand-Ballard argues that this is too hard on telishment and too easy on prisons’ refusal to allow unlimited conjugal visits. Both share the pro tanto wrongmaking feature of imposing undeserved harm. Therefore, what makes telishment all-things-considered impermissible and imprisonment without unlimited conjugal visits all-things-considered permissible are extrinsic features.

He offers only brief suggestions about what these extrinsic features might be. In the case of telishment, he suggests that, in any normal society, allowing officials to telish would open up an avenue for abuse–they would have a convenient argument for punishing those with whom they disagree. Concerning unlimited conjugal visits, he points to the cost such a policy would impose upon prisons. He admits that these reasons may not reflect the phenomenology of our moral reactions to these policies. But, he argues, to the extent that we think nonconsequentalist considerations are solely driving these reactions, we are misdescribing the sources of our own moral intuitions.

What then about three strikes laws? He argues that the common criticism of such laws–that they violate retributive restrictions on punishment–will not work. Any argument against them is going to have to be contextual and empirical, in particular that they inflict more undeserved harm than they prevent.

The most significant aspect of this highly original article, however, is less its assessment of three strikes laws than its exemplification of the modern trend toward moral particularism. Notice, however, that Brand-Ballard’s particularist sympathies are limited. The way that intrinsic features morally matter, he argues, is never invariant across extrinsic contexts. That leaves open the anti-particularist possibility that there are extrinsic features, or nontrivial sets of intrinsic and extrinsic features, with moral effects that are invariant across contexts. From these features, moral principles might be derived.

Creating Norms

Apr 27, 2011 Brian Bix

In this brief companion piece to his longer work, “The Correspondence of Contract and Promise,” Jody Kraus displays how a “personal sovereignty” account of individual autonomy can explain the ability of individuals to impose moral obligations on themselves.

Contract Theory has become increasingly focused on the related issues of the philosophical foundations of promising, and the relationship between promise and contract. As Kraus points out in his longer Columbia Law Review piece (“Correspondence”), one cannot reach any conclusions about whether contract law deviates from the morality of promising until one determines the source and extent of the moral obligation of promising.

One view in the area has been that the normative force of promises comes from the social practices and conventions which a community established to make an act of promising sufficient to impose an obligation on the promisor.  Kraus notes that Joseph Raz appears to argue that individuals have the power to create normative obligations through promising, because it would be valuable for them to be able to do so. (128)  As Kraus discusses in “Personal Sovereignty,” views like these have elicited the skeptical response that one cannot simply create a moral obligation out of thin air.  For these skeptics, neither the presence of a social practice or convention nor the claim that the ability to be able to bind oneself would be a good thing, could be sufficient to allow individuals to create new obligations in this way.  The skeptics continue, whether a promise creates an obligation depends on some other more basic axiom of moral philosophy (e.g., for the consequentialist, whether keeping this promise will increase overall social utility).

Kraus’s response, in “Personal Sovereignty,” is that personal sovereignty can explain promissory obligation in a way that avoids the skeptical reply.  Personal sovereignty “recognizes the fundamental right of individuals not only to choose their system of ends but also to choose how to pursue those ends.” (127, quoting Krause, “Correspondence,” at 1609)  Kraus argues that this account of individual autonomy would include the ability of parties to impose obligations on themselves.  This approach would escape skeptical objections because “personal sovereignty” is a foundational axiom, that neither requires nor allows further justification (that is, it plays the same role as “maximizing utility” does for those who argue that enforcing promises must be justified on consequentialist grounds).

This all may seem parochial, of interest only to contract law theorists, but comparable debates are going on in many other parts of legal and moral philosophy.  The version of legal positivism Scott Shapiro presents in Legality (Harvard University Press, 2011) is built on the idea that when we (as individuals or as a collective) make plans for ourselves, we give ourselves reasons for action (to do what we planned, and to do what we need to do to execute those plans successfully) that we did not have before.  (Though, for Shapiro’s theory, which is built on Michael Bratman’s work, it will be collective plans, not individual plans, that are central.)  Again, this is a picture of what might be called “boot-strapping” within practical reasoning, of individuals being able to create prescriptions where none existed before – and, in the case of plans, without the level of commitment or the background of social practices and conventions that is arguably present for promising.

When, how, and under what circumstances people can morally bind themselves – either individually, bilaterally, or collectively – is a crucial topic for many aspects of moral, legal, and political philosophy.  Jody Kraus in “Personal Sovereignty” has offered a powerful, straight-forward and intuitive answer to one version of the question, that might well resolve some basic problems in contract theory (as he argued in “Correspondence”), but there are still related problems in explore in general jurisprudence and political theory.

Transnational Law

Mar 21, 2011 Dennis Patterson

Globalization has produced transnational legal phenomena in need of theorizing.  From this observation flow several questions about transnational legal phenomena such as private legal orders (e.g., ICANN, UDRP, Bernstein (1992) on diamonds), federal norms (e.g., EU law), international law that is not the product of treaties (e.g., lex mercatoria or the norms produced by the WTO appellate body), soft law and international arbitration (ADR).  How should legal theorists make sense of these disparate yet related phenomena?

If we are to theorize these phenomena, what form should such theorizing take?  This is the question taken up by Calliess and Renner.  As they see it, the answer to the question of “global governance” is a mixture or blend of legal theory/jurisprudence and social science (here law and social norms).  Each approach asks a different question.  From the point of view of legal theory, the question is “analytical” (their word): how to differentiate legal from non-legal norms?  Thus stated, the question is familiar to analytically minded legal theorists.  The second dimension is advanced in the form of a challenge, which they state thus: “[T]he most pressing demand on contemporary jurisprudence is to make legal concepts compatible with those of the social sciences without at the same time losing sight of the very own purpose of legal thinking, i.e., the normative analysis of legal structures.” (p. 262)

There exists a distinct tension between social science approaches to law and more traditional jurisprudential (think Kelsen 1945 or Hart 1997) accounts of the nature of law.  The law and social norms approaches (e.g., Macaulay 1963; Bernstein 1992; Williamson 2005) stress the “interrelatedness or even interchangeability of legal and social norms.” (p. 264)  In a sense, the social science perspective sees the world as “norms all the way down,” with law enjoying no special place in the whirl of normativity.  Calliess and Renner think the emphasis on social science, particularly the exclusion of an analytical framework for law, misses a central feature of legal norms, that of its rationality (Fried 1981).

How to integrate these two perspectives?  The authors look to Systems Theory (Luhmann 2004 and Teubner 2004), embracing a functionalist account of legal norms that motivates their theory of law as an evolutionary normative system.  The job of law is to stabilize expectations.  The “governance” in “global governance” is accomplished in law through self-referential stabilization which results from two factors: (1) an impartial dispute resolution procedure, and (2) the publication of past decisions.

Calliess and Renner are right about the need to integrate traditional jurisprudential approaches to law with the tools of social science.  Law arises beyond the nation state.  We may be able to explain why transnational legal phenomena arise (the answer is globalization) but it remains unclear how best to theorize these new phenomena as “law.”  This is the next big challenge in legal theory.  This article is not perfect in its explication of an analytical account of the nature of law.  But Calliess and Renner are asking the right questions.  Their attempts to answer these questions are worth close consideration

References:

Bernstein, Lisa,  Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Leg. Stud. 115–57 (1992)

Fried, Charles E.,  The Artificial Reason of the Law or: What Lawyers Know, 60  Tex. L. Rev. 35–58 (1981).

Hart, H.L.A., The Concept of Law ( Clarendon rev. ed., 1st ed. 1961).

Kelsen, Hans, General Theory of Law and the State (A. Wedberg ed.,  Harvard University Press 1945).

Luhmann, Niklas,  Law as a Social System (K.A. Ziegert trans.,  Oxford,  2004,  1st ed. in German 1993.)

Macaulay, Stewart, Non-Contractual Relations in Business: A Preliminary Study,  55 Am. Soc. Rev. 86–104 (1963).

Teubner, Gunther,  Societal Constitutionalism: Alternatives to State-centred Constitutional Theory? in Transnational Governance and Constitutionalism 3-28  (C. Joerges, I.-J. Sand, and G. Teubner ed., Oxford: Hart, 2004).

Williamson, Oliver E., The Economics of Governance, 95 Am. Econ. Rev. 1-18 (2005).

Jurisprudence for Emergencies

Feb 14, 2011 Martin Krygier

Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good, less for what it enables and creates than for what it might prevent. On this interpretation, the point of law is to block and limit the possibility of unruly power, to curb and restrain power’s exercise.  This is not a new view. Recall Bracton’s revealing metaphor from the thirteenth century, of law as ‘the bridle of power,’ by which a just king, as distinct from a ‘tyrant,’ must ‘temper his power.’  The characteristics most associated with law changed over the centuries, particularly moving from custom to legislation, and with those changes went different conceptions of what the law needed to be like to do its proper work. However, the identification of the rule of law’s purpose with constraint endured. And it still does. Where the rule of law is commended, it is typically for what it rules out rather than what it rules in; what it restrains and prevents, rather than what it generates and encourages to flourish.

That is not the only way of viewing the rule of law, however, and arguably not the best. Jeremy Waldron has recently criticized views of constitutionalism according to which “[e]verything is seen through the lens of restraint and limitation,”¹ and has insisted on the empowering role and potential of constitutional provisions. Similar points might be made about the rule of law. Stephen Holmes has long stressed the empowering consequences of law; what, in contrast to the more common negative conception, he calls “positive constitutionalism”². Appropriately configured laws, on this view, provide “enabling constraints.”³.

For the “paradoxical insight” here, as Holmes describes it, is that:

Limited government is, or can be, more powerful than unlimited government. … that constraints can be enabling, which is far from being a contradiction, lies at the heart of liberal constitutionalism … By restricting the arbitrary powers of government officials, a liberal constitution can, under the right conditions, increase the state’s capacity to focus on specific problems and mobilize collective resources for common purposes.⁴

On this view, like  a swimmer who must master, and in a sense come to be mastered by, techniques and disciplines to marshal and channel raw energy for effective performance, so the ability of a state to concentrate its powers where and how it should is enhanced by legal requirements, procedures and institutions which, among other things, block its ability to splash around where and how it shouldn’t.

Not all jurisprudential arguments have dramatic practical implications, but this one does. Consider the often-voiced claim that elements long believed central to the rule of law need to be waived or suspended in confrontation with the terrible threats posed by international terrorism. On the negative view, it seems at least plausible to argue that there are inbuilt tensions and necessary tradeoffs between the logic of urgent, strong and effective action in emergencies, and that of the rule of law.  We might approve of both, but we need to recognize that one lives in inexorable tension with the other.

But what if the effective exercise of power depends on precisely those constraints  on arbitrary power that impatient politicians are eager to discard? And what if this is especially true in emergencies. This is what Holmes argues. His argument has many strands, but central is a remorseless development of and reflection on an analogy that is as simple to state as it is, once made, hard to resist.

Holmes argues that, so far from being a reason to discard the rule of law, times of emergency are precisely when pre-tested, often long-evolved, constraints on arbitrariness in the use of power are typically most needed. He explores a range of contexts, such as intensive care medicine, in which emergencies are the stuff of life (and death), pointing out that “emergency-room doctors and nurses are not the only professionals who, when faced with a disorienting crisis, limit discretion and abjure gut-reactions, embracing instead a strict adherence to rules and protocols that provide them with a kind of artificial ‘cool head”’ (p.302); “only those who fail to appreciate the gravity of a looming threat would advocate a wholesale dispensing with rules that professionals have developed over time to reduce the error rate of rapid-fire choices made as crises unfold” (303).

Holmes is thus critical of the common wish of governments to ‘release the shackles’ of the rule of law in situations seen as emergencies – to rule without open, calculable rules, to dispense with safeguards of procedural fairness, suspend habeas corpus, diminish or discard the ordinary protections and contestatory opportunities traditionally associated with legal hearings. Such ambitions, even when well-motivated,  pay no heed to the positive, enabling, competence-protecting role of the rule of law, and particularly to the dangers of panicked flailing about, overinclusion, plain unaccountable incompetence, ignorance, and lack of exposure to tests of the reliability of information, that often attend the acts of power-wielders acting in secret and on the fly.

Unfortunately, Holmes insists, “defenders of unchecked (or only weakly checked) executive discretion in the war on terror typically ignore the liberal paradox that constraints can be empowering, and that legal and constitutional restraints can increase the government’s capacity to manage risk and crisis”⁵. To ignore this paradox is also to misunderstand the powerful constructive significance of the rule of law. Yet “[t]o reject the rule of law is reckless because it frees the government from the need to give reasons for its actions before a tribunal that does not depend on spoon-fed disinformation and is capable of pushing back. A government that is not compelled to give reasons for its actions may soon have no plausible reasons for its actions”⁶.

Too often, defenders of the rule of law feel pressure to choose between effectiveness in defense of security, on the one hand, and what can be portrayed as effete and pedantic concern with civil liberties, that our enemies will exploit to do us in, on the other. It is Holmes’ singular achievement to show that this apparently irresistible conflict is often quite spurious.



Sex/Power/Law

Jan 12, 2011 Robin West1 comment

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them?  The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected.  Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently.  Why?  Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex?

Spindelman begins by rehearsing, and rejecting, some conventional explanations: that during the height of the crisis, the gay community united in solidarity around their own, refusing to allow themselves to be splintered in the face of a hostile mainstream culture; that AIDS had its genesis in an era of confusion and blamelessness, with a widespread belief that it was even logically impossible to assign blame to individual transmitters; that victims were broadly skeptical that a legal system that had so thoroughly disregarded their rights would give them a fair shake in actions of this sort; and that the elites of the gay community quickly coalesced around an alternative narrative that targeted the government’s failure to respond to the public health crisis, rather than a narrative of individual responsibility and blameworthiness, properly compensable through the ordinary mechanisms of private law.  None of these, he argues, fully explains the widespread sense during the height of the crisis in the nineteen eighties, that HIV and AIDS transmission were just not amenable to legal tools of redress.  Rather, he argues, a cultural stance, or predisposition, or simply, an ideology underlay the response of victims to their injuries, and the community to the crisis: what Spindelman dubs an “ideology of sexual freedom” that valorized sex, including unprotected sex, over life, and that in effect eroticized death by so doing.  By the lights of an ideology which prioritized the importance of unfettered sex above all else, and which was put forward as a fighting faith, the victims of AIDS were martyrs, or soldiers, felled in a sexual battle that was itself drenched in mystical and religious as well as historical significance.  The sex for which these soldiers died, from within the perspective of this ideological lens, was an expression not of love, community, companionship, or even pleasure, but rather, of pure power, valued very much for its own sake, and transcendent in its embodiment of all it was stereotypically, in a homophobic culture, charged with being: non-regenerative, decadent, often sadistic, profoundly hierarchical and arbitrary, and potent with deadly force.  Sex, according to the purveyors of this ideological stance, was to be worshipped, not regulated, and any questioning of the harms the sex for which all should be willing to die might occasion, and certainly any suggestion that those harms, if caused by individuals in a manner the law cognizes, should be compensated, was simply blasphemy.

To mount his argument, Spindelman interprets four fundamental texts by prominent gay men from the 1980s, the high water mark of the epidemic, and scores, even hundreds, more in the voluminous footnotes along the way.  The argument begins with a brilliant reconstructive reading of Douglas Crimps’ How to Have Promiscuity in an Epidemic, an essay which appeared in 1987, and which rested at heart on an attack of Randy Shiltz’s history of AIDS in the popular book And the  Band Played On, and Larry Kramer’s critique of gay promiscuity.  Crimps attacks Shiltz’s history of the origins of the AIDS epidemic and Kramer’s critique of promiscuity as homophobic self loathing; both men, according to Crimps, undervalue sex, sexual pleasure, and sexual identity, and both are skewered for it.  In Spindelman’s reading, Crimps has basically sacrificed not only Kramer and Shiltz, but also truth itself and thousands of victims, on a pyre dedicated to sexual freedom at all costs.  By reading Shiltz as purveying a “narrative” of gay guilt, rather than governmental mendacity, in the outset of the AIDS epidemic, Marc argues, Crimps reveals his own ideological commitment to sex over life and to sexual-cultural texts over ascriptions of responsibility.  Spindelman closes his article with a reading of Bersani’s now classic essay, Is The Rectum a Grave, which hardly needs a subtle re-telling to fit Marc’s thesis: Bersani is quite explicit in his adoration of sex that is expressive of nothing but power, adopting Andrea Dworkin’s familiar anti-sentimental description of sex as an exercise of power, and then, unlike Dworkin, celebrating and valorizing it for just the reasons Dworkin condemned it, very much including its lethal potency.  The reading of Crimps and Bersani in this essay is utterly convincing.

The harder – much harder – arguments for Spindelman are the two critiques in the middle of his essay: first, his critique of David Chambers’ essay, Gay Men, AIDS, and the Code of the Condom, and second, his critique of parts of Richard Mohr’s Gays/Justice: A Study of Ethics, Society and Law. Richard Chambers’ “condom code” urged an ethic of voluntary compliance in the gay community with a moral code that required the use of condoms in anal sex, and urged the moral code as an alternative to any legal regulation at all (for example, Mohr rejects as well beyond the pale of acceptability even modest fines – comparable to that for failing to wear a seatbelt — on unprotected sex).   Spindelman faults Chambers’ Condom Code for sacrificing the victims of condom breakage and spillage for the sake of the pleasures enjoyed by survivors, for failing to require full disclosure, and Chambers himself for rejecting with almost no argument ordinary tools of legal regulation for these injuries.  He attributes all of this not so much to the ideology of sexual freedom, as to the “friendliness” of Chambers’ Code with the ideology of sexual freedom.  Richard Mohr’s philosophical argument in Gays/Justice for the insularity of sex from legal regulation rested on two planks: first, the familiar liberal claim that consensual behavior should be off the legal regulator’s radar for autonomy enhancing reasons, and, second, a more frankly mystical argument that sexual behavior, by virtue of  its other-worldliness, simply must be private (regardless of where it occurs) and regarded as such, as we would regard prayer.  Spindelman shows clearly the cost of an excessive reliance on consent, here as elsewhere in liberal thought, and raises cogent questions regarding the religiosity of sex.  These four views, collectively, rest on an ideology of sexual value, and imply or directly argue against regulation of the harms it occasions.  Spindelman then ends the essay with a lengthy discussion of the various ways in which law and legal discourse have been affected by the ideology of sexuality, from the Court’s recent decision in Hardwick, to queer theorists’ endorsement of the de-regulation of sexual injuries, from harassment to rape in war.

Spindelman has followed this essay with Sexual Freedom’s Shadows, forthcoming in Yale Journal of Law and Feminism, which is a Review of a book by Tim Dean exploring and then ultimately celebrating the fringe practice of Barebacking – the intentional transmission of AIDS (or the intentional embrace of the risk of transmitting AIDS) toward the end of an erotic high for both parties.  This essay is an extension and deeper exploration of the ideology of sexual freedom that underlies both phenomena: the underuse of the legal system for the AIDS transmissions, and the intentional transmission of AIDS as a part of sexualized expression.  The latter essay is, if anything, stronger than the former, but its target is somewhat narrower: Dean’s ode to barebacking will be read against a presumption of skepticism in any event.  Marc’s review of it will receive a friendly reception.

The ambition of Sexuality’s Law, by contrast, is larger, and so the weaknesses are more apparent.  They are twofold: briefly, the critique of Chambers’ condom code could have been more temperate, and the critique of Mohr’s liberal defense of sexual privacy could have been more careful.  The condom code, Spindelman argues, doesn’t go far enough as a regime of voluntary regulation, and it inexplicably turns its back on legal regulatory responses.  That seems fair enough.  On the other hand, it’s not at all clear that it is motivated by sexuality’s ideology, rather than the same concern for health and life that motivates Spindelman.  Spindelman’s and Chambers’ differences seem strategic more than ideological.  Second, Mohr’s insistence that consent of a victim whitewashes the injuries that consensual behavior causes does seem wrong-headed (I’ve argued as much repeatedly), but it is so for reasons that stem from the liberal valorization of consent, rather than because of the ideology of sexuality.  There is also an explanation for the failure of law to countenance these injuries that Spindelman doesn’t discuss: as Shari Motro has suggested in a recent and brilliant essay forthcoming in Northwestern Law Review on “pregimony,” the law has also failed to establish a way to spread the risks and costs of something else that is transmitted by consensual sex in addition to disease, and that is pregnancy.  Aside from costs of childbirth and pregnancy expenses related to childbirth, there is simply no liability and no liability mechanism for sharing the costs of the accidental and typically negligently caused harms.  Our inability to see the reckless or negligent transmission of disease as an event to which the civil mechanisms of law should respond might be of a piece: we just insulate sex and its harms against legal redress.

But the accomplishments of these two pieces taken together are collectively breathtaking.  The reading of the law and the culture of the time period is deeply intellectual and a stunning example of the best of cultural legal studies; Spindelman takes on hundreds of cultural sources and a library of legal scholarship in mounting his argument.  The arguments are also, quite simply, brave: he has bucked the ascendant trend in legal cultural studies and queer theory both that has tilted drastically and, quite possibly catastrophically, toward the praise, valorization, and protection of empowered sex of all forms, together with a contemptuous denial of the injuries and harms that sex has carried for its victims, including girls, women, gay men, and boys, and plenty of straight men and boys as well.   He does so, furthermore, with writing that is as impassioned and literary and beautiful as some of the texts he’s attacking, but in Spindelman’s writing, the argument, the passion, the turns of phrase, the thousands of footnotes, are put toward the ends of truth, of community of purpose, autonomy, and a celebration of individual dignity, all values, he argues, threatened by sexuality’s ideology.  This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.

The Nature of Law and the Human Condition

Dec 8, 2010 Sean Coyle1 comment

The question of the nature of law lies at the heart of jurisprudence. At the present day, the major sources of debate on the question revolve around acceptance or otherwise of ‘legal positivism’ and associated doctrines of analytical jurisprudence. Do we reveal the nature of law when we clarify the conceptual presuppositions of certain social practices? Must theories of the nature of law be ‘neutral’, ‘descriptive’ or ‘detached’? Or are social practices essentially ‘interpretive’, so that the nature of law is only revealed when it is expounded as the expression of a moral or political idea? How, indeed, are we to tell whether analytically pleasing distinctions (such as that between law and morality) genuinely clarify the nature of the object under investigation (law), rather than obscuring it? These debates are clearly capable of exerting their own fascination; but one might suspect them of diverting attention from the traditional concern of jurisprudence, which is to elucidate the nature of law as a social institution, and to throw light upon its place within the human condition. Such inquiries stimulate a specific interest in the significance of law as a distinctive type of social ordering. This is a dimension of understanding that is as lost upon modern critics of positivism as it is upon positivists themselves: for example, in his recent book Justice in Robes, Dworkin argues that philosophical significance attaches only to the substance of legal doctrine, there being no philosophically interesting issues relating to law as a social institution (Justice in Robes, Harvard, 2006, 2-3).

Pirie’s article is refreshing because it avoids the recent debates in favour of an investigation into the nature of law as a social and intellectual phenomenon. Law is not simply a set of practices or a body of norms, but an intellectual system (207). Her concern is to explore the idea of law in terms of its form. We might initially suppose that law can be defined in opposition to forms of negotiated order: a supposition that draws a close association between law and government. Is this anthropologically valid? According to Pirie, law is to be identified ‘neither by reference to the negotiation of order, nor by reference to government. It is, rather … identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.’ (id.) The central question is then how law is different from other forms of ideological system (208).

The main body of the article is a criticism of narrower conceptions which associate law too closely with government and the maintenance of order. In addition to excluding much that belongs to Shari’a, Indian and Chinese systems of law, such approaches pay insufficient attention to the nature of law as an intellectual system (holding forth promises of justice) in addition to its functional and administrative aspects. It is the form in which these promises are held out that differentiates law from other codes of morality or ideology: for in law we tend to find an exact system of penalties attaching to the prohibited behaviour, which taken together embody ‘explicit … propositions about how justice and order are to be achieved.’ (220). The promissory nature of these propositions serves to differentiate law from forms of ‘pure’ custom, but equally does not depend directly upon the rise of organized governments.

Later sections of the article develop further the analysis of what specifically belongs to law as an intellectual system, and as a social phenomenon. Its analysis is suggestive rather than comprehensive. Its conclusions offer questions and warnings rather than answers. Law ‘comprises phenomena which share a great many attributes—rules, norms, implementation by judges, formulation by government, enforcement mechanisms, links with social order and justice, a jurisprudence—none of which is instantiated in every example of law. We can think of law in terms of its functions, its instrumental aspects or its ideological and symbolic force. If we over-emphasize some of these attributes to the detriment of others, however, we fail to do justice to our own notion of law. We fail to appreciate its complexity and power.’ (228)

Pirie’s discussion should provide an opportunity for jurisprudential scholars to question some of their deepest assumptions (which is surely essential to the activity of philosophy), and perhaps to recover a sense of the deep and apparently hopeless perplexity that drives philosophical thought. Above all, it may help to refocus attention upon the traditional question of the nature of law, and to reveal rich vistas of inquiry that are untouched by the present jurisprudential debates.