Category Archives: Uncategorized
Nov 1, 2024 Sean Coyle
This brilliant and highly interesting essay examines the nature of polities that place central emphasis on the rule of law and thereby upon the language of rights, a language which “smothers and extinguishes” alternative forms of ordering. (P.553.) In doing so, the language of rights erodes its own foundations, leading to a society of no rights but instead of technocratic reasoning. Rights are peremptory. Simmonds describes the sharp distinction between human goods (e.g. it would be good to do x) with rights(I have a right to do x). The distinction is not metaphysical but the result of artifice that underpins our familiar form of association. (P.553.) This does not exclude those aspects of human flourishing that are better understood in terms of goods, values, or interests, where peremptory reasoning gives way to weighing and balancing. In setting out the issue in this way, Simmonds puts a significant new perspective upon arguments he has been advancing for some time: the relationship of rights to ordinary forms of human activity, the mutability of rights discourse, and a preference for the will theory of rights over the interest theory.
Simmonds is appalled by recent trends in constitutional law, which mistake the relative importance of rights for their peremptory force. Where such force is eliminated in favour of questions of importance or proportionality, the traditional hallmarks of legality and legitimacy are significantly eroded. (P.556.) Simmonds returns to this theme at a later point in the article.
Simmonds argues passionately that law should be understood as a body of rules operating within a domain of fidelity, a concept familiar to readers of Lon Fuller and which applies not only to judicial reasoning but to the legislative process as well: the notion of fidelity displacing that of a rule of recognition. (P.557.) This aspect of Simmonds’ argument is a fairly recent departure from his earlier work, which emphasized (alongside the work of the legal historian AWB Simpson) the common law’s fundamental nature as a body of ever-evolving reasons for decision. The central reason advanced is that “[s]ound legal thought always involves an attempt to create and sustain a just and coherent body of law that serves the common good, and this enterprise is always endangered by the diversity and particularity of moral considerations that might be considered to be of relevance.” (P.557.) Legal rights claims do “both more and less” than claims that a given action is good. (P.558.) This is because rights claims may be contrary to good, and thus less: the right of a wealthy person to a sum to be taken out of the purse of one in poverty (surely an instance of Aquinas’s doctrine that it is sometimes necessary to forgo one’s right in order to avoid scandal or disturbance. [scandalum vel turbatio]: ST I-II.96.4 ad 3.) Or they do more because they articulate standards that are insulated against the broader flow of practical reasoning. (P. 558.) But Simmonds suggests a distinction between the peremptory force of rights and their (lack of) absolute force.
How does this distinction preserve the thought that rights are other than mere counters to be moved in good-centric arguments generally? Simmonds proposes only a highly schematic response to this problem, referring to what he calls the “relational aspect of rights”; roughly, Y fails to observe X’s right in circumstances that highly justify the breach (create some good or avoid some evil). (P.559). But the language of rights demonstrates that such breaches come at a cost: X is denied what she is due or (better)owed. Thus, there are some rights that it is possible to breach, but others that may not be breached in any circumstance. (P.559.) I am not sure that this solves the problem, which some may (incorrectly) take as a distinction between the protections of the criminal law and those of private law, given the article’s example of intentional killing. But the general picture should be of interest to anyone who practises or theorizes about law, that of the need to locate rights within a broader moral framework of values, common good(s), and collective human flourishing, a framework which must not be entirely displaced by notions of right and in which, presumably, rights are not always the decisive idea (P.560.) The key difference is that rights are “respected or honoured” rather than “advanced or promoted” (but does not X advance her right against Y? Is that not an important feature of the “language of rights”?).
Rights are not correctly understood, but they are of central importance as being amongst the most fundamental building blocks of society (P.563.) Simmonds argues that “we can see that the peremptory force of rights is dependent upon the fact that rights are not self-standing individual interests, but are essentially relational: the bond created by the right is at least as important as any interest protected by the right” (P.565.) This relational aspect of rights is brought out by Hohfeld’s analysis. If we do not pay attention to Hohfeld, we may think that if X has a right to A and Y has a right to B, and A and B conflict, then we are in the impossible situation that the rights of X and Y conflict. How can that be? The answer is that X may have a right to A generally, but no such right against Y: Simmonds gives the example that I have a right to be free from assault generally, but not against my opponent in a boxing match (P.568.)
Over the unfolding pages, Simmonds sets out a sense of the consequences of an abandonment of Hohfeld’s analysis, an attempt to restore a pre-Hohfeldian notion of rights as internally complex. Thus, for example, a right of free speech would then be deemed to be the basis for the imposition of duties on others to respect the right: when, in fact the “right” may turn out to be a mere permissibility (liberty, privilege) also held by others (you may talk, but I may talk louder). The result is a “toxic monoculture” in which the notion of right is “extended to any good or interest which is being pressed as of considerable importance” (P.571.) In the area of constitutional rights, increasingly interests are deemed to form rights against which is to be applied a broad doctrine of proportionality. The result is stark: “A polity departs from the rule of law not only when judges and other officials fail to apply the law, but also when the law they apply confers upon them extensive discretionary powers” (P.572.) Thus, finally, “To collapse the distinction between rights and goods is to remove an important basis for the state’s legitimacy, and to convert the state into a technocratic instrument for managerial social policy” (P.573.)
In short: this is a rich and deeply interesting essay, the implications of which ought to give pause to academic and practising lawyers alike in whose hands law is steadily sliding into a mere instrument of a technocratic state, giving up the idea of law as a rich and subtle aspect of human civility.
Oct 21, 2024 Carlos Bernal
Prof. Moore claims that the interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee, the body overseeing states’ compliance with that instrument, do not consistently follow the international law rules of treaty interpretation of the Vienna Convention of the Laws of the Treaties. Those rules command treaty bodies and states to interpret treaties according to the text’s ordinary meaning, while also considering context and purpose. Instead, the Committee plays an influential role by interpreting the Covenant in an evolutionary way, according to its own normative goals.
This practice is common among other human rights bodies, such as the Interamerican Human Rights Commission, and rapporteurs. This practice gives rise to a jurisprudential question, namely, about the nature of the human rights standards that treaty bodies and rapporteurs create by means of their normative interpretations.
A recent example underscores this issue. On 28 June 2024, the Supreme Court of the United States decided City of Grant Pass, Oregon v Johnson. The issue was whether laws restricting encampments on public property (and backing the restriction with fines and imprisonment up to 30 days) are an instance of cruel and unusual punishment that violates the 8th Amendment to the United States Constitution. A majority (Gorsuch, Roberts, Thomas, Alito, Kavanaugh, and Barrett) concluded that this was not the case. The majority appealed to an original interpretation of “cruel and unusual” as features of methods or kinds of punishment calculated to “add terror, pain or disgrace” and that are “out of use.” Fines, prohibition from encamping, and imprisonment up to 30 days do not carry those features. Furthermore, they are common. The dissenters (Sotomayor, Kagan and Jackson) disagreed. They claimed that homelessness is an involuntary status. Hence, criminalizing homelessness is cruel and unusual because what is criminalized is not an action but the status of being homeless, fulfilling an essential bodily function -sleeping- in a public space.
This ruling is at odds with the “official” interpretation of Article 7 of the International Covenant on Civil and Political Rights, which prohibits the use of cruel, inhuman, or degrading treatment or punishment. The United States ratified this treaty on 8 September 1992. Concerning Article 7, the United States made a reservation limiting the scope of this provision to “cruel, inhuman, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution.” Now, as official interpreter of the ICCPR, the Human Rights Council, in the Fifty-sixth session, 18 June–12 July 2024, approved the Report of the Special Rapporteur on extreme poverty and human rights: “Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Breaking the cycle: ending the criminalization of homelessness and poverty”. That Report asserts that the criminalization of homelessness violates the prohibition of cruel, inhuman or degrading treatment or punishment, entrenched in Article 7 of the ICCPR, in particular: (i) when a person is repeatedly evicted or incarcerated; (ii) when arrests or move-on orders result in a persistent state of fear or sleep deprivation; (iii) when personal belongings or merchandise are confiscated or destroyed; or (iv) when evictions from street encampments or squatted buildings are carried out without the provision of any adequate housing alternative.
These standards are a clear outcome of an evolutionary and normative interpretation of the Covenant. They do not derive from the text or history of the Covenant. Furthermore, the link to context and purpose is, at least, a matter of discussion. It is also questionable that, due to the reservation, after the enactment of the Supreme Court judgment, the U.S. is bound by those standards. However, can we claim that, before that decision was handed down, the Court was bound by those standards that were discoverable through interpretation? Are they also binding on other nations?
Concerning this matter, it is possible to use the concept of international human rights standards in both a narrow and a broad sense. The narrow sense encompasses only provisions of legally ratified international human rights treatises. The broad sense includes those provisions and the rules that treaty bodies (such as international courts, commissions, councils, and rapporteurs) specify as treaty interpretation. Formalist international law theories only accord legal nature to the international human rights standards in the narrow sense. Radical anti-formalist theories attribute this nature to all human rights standards in the broad sense.
Both theories seem highly implausible. On the one hand, there are some treaty bodies’ rules that the international community considers as binding, even if they are normative interpretations of human rights treatises. On the other hand, some treaty bodies’ rules are just regarded as ideological desiderata of factions dominating those bodies. Hence, the key question is what is the nature of international human rights treaty bodies’ normative interpretations? This question might have an ontological and a normative dimension. The ontological question is whether treaty bodies’ normative interpretations are legal norms which establish obligations to the treaty parties or that are domestically applicable. The normative question is whether those rules should be regarded as binding in that sense.
A conceptual analytical legal theory can ground an answer to the ontological question. Those interpretation are binding if the international community regards those as directive to follow in the practice of international law. Concerning the normative question, Prof. Moore claims that state parties’ dialogue in international forums can grant normative legitimacy to the evolutionary interpretations of the treaty bodies. Naturally, the substantial normativity of those standards always remains open to criticism and change. A key task of the jurisprudence of human rights is to provide grounds for that deliberation.
Sep 3, 2024 Brian Bix
The place of legal normativity in legal philosophy is distinctive and strange: there is a widely shared (though not universally shared) view that theories about the nature of law should “explain legal normativity,” but there is sharp disagreement regarding both what “legal normativity” entails and what it would mean to “explain” it. In Shadows or Forgeries? Explaining Legal Normativity, Alma Diamond offers a helpful overview of the current literature, along with a radically different approach to the issue.
In the first part of the article, Diamond explores the three different understandings of “legal normativity” currently prevalent in the jurisprudential literature: (1) the view that law gives its subjects (“real” or “robust”) reasons for action; (2) the observation that legal language implies that law gives subjects reasons for action; and (3) the idea that law must be the sort of thing that is capable of giving reasons for action, and/or that law, by its nature, implicitly claims to give us reasons. One can see that in all three alternative approaches, the focal point is a focus on reasons for action: whether the law gives us reasons, whether it purports to give us reasons, or what follows from its being the kind of thing that might give us reasons. After Diamond provides a detailed overview and critique of the three alternatives, she argues that all three approaches “take for granted that the appropriate explanatory primitive is the notion of a ‘robust’ reason for action.” (P. 64.)
Many discussions of legal normativity raise questions about the extent to which law, as law, could always give subjects reasons for action, whether law can be like the parents who tell the child challenging their authority, “because I said so, that’s why!” Proving that law is robustly normative does seem theoretically to be an uphill battle. And this is where Diamond’s article is sharply different. Instead of starting from what one would need to show that law is robustly normative (or why or how it can be), the article’s alternative starting point is that “[l]egal practice just is a normative practice” (P. 66, emphasis in original), and that this should be our “explanatory primitive.” (P. 66.)
The fact is that many of us do treat the law’s prohibitions, prescriptions, and permissions as at least presumptively (defeasibly) reason-giving, and Diamond argues that we should explore this phenomenon theatrically (not as a matter of sociology or psychology). The article calls this a “practice-first approach,” and traces the idea to H. L. A. Hart, while noting the relevance of a wide range of other thinkers, including Ludwig Wittgenstein, Robert Brandom, and Christopher Möllers. The basic argument is that a feeling of community is connected to a shared normative world: “to recognize that one has a situation in common with other agents is to recognize that there are such things as normative constraints.” (P. 74.)
Diamond cautions that this article is “only a sketch” and only “the start” of exploring this option. (P. 75.) Similarly, the article sets its sights not on rebutting the current general approach to writing about legal normativity, but rather merely attempting “to show that there is an alternative.” (P. 77.)
Going forward, it might be productive to consider either the connections or the contrasts between Diamond’s “practice first” approach to legal normativity and the approach David Dyzenhaus elaborated in his recent book, The Long Arc of Legality. For Dyzenhaus, as for Lon Fuller, there is a normativity distinctive to law, based on reciprocity between rulers and subjects; this “internal” set of normative standards separate from the “external” normativity of conventional moral standards we also bring to our evaluations of law. One can see that for Dyzenhaus, as for Diamond, law simply does create its own normativity.
Jul 29, 2024 Barbara Levenbook
The title of this review should begin, “It should go without saying.” Unfortunately, given a spate of recent fashionable criticisms of retributivism—by Martha Nussbaum, Vincent Chiao, Erin Kelly, and others—the thesis defended in Dr. Leora Dahan Katz’s article needs saying and defending. That thesis is that there is no theoretical incompatibility between commitment to a retributive justification of punishment and promoting human welfare; and there is no evidence (at least, none provided by antiretributivists) of an empirical incompatibility in adopting a retributive rationale for punishment and yet trying to promote (albeit not to maximize) human welfare (e.g., by addressing human needs before criminal conduct occurs, educating about sexual assault, or, I would add, showing mercy or compassionate release under unusual circumstances). There is yet no reason proffered to think that the retributive theory of punishment needs replacing by a welfare-oriented one.
Dahan Katz carefully disentangles various arguments contrary to her thesis: causal, psychological, conceptual. She refutes, with particular precision and philosophical sophistication, an axiological argument to the effect that retributivism is committed to viewing human suffering as having intrinsic, not merely instrumental, value, and that this is incompatible with a welfare orientation. Her refutation involves what is, given the antiretributivist literature, a much-needed reminder about the precise contentions underlying various forms of retributivism.
As Dahan Katz notes, retributivism has the resources to denounce mass incarcerations (except in the theoretically possible case in which all incarcerated persons deserve their incarceration) and excessive (understood as retributively unjust) and degrading punishment. Retributivism,Dahan Katz further notes, provides no obstacle to objecting to (and no reason for) racial discrimination in sentencing and many of its ill effects. Most forms of retributivism license, but do not require, punishing those who deserve punishment. Desert is treated by these theories as a pro tanto consideration, rather than one that excludes considerations of exploitation of the deserving guilty, (the distributive injustice of) discrimination among the set of convicted and deserving guilty, and so on.
Admittedly, in practice, the moral duty to discover the facts determining whether and how much a given individual deserves punishment can be exceedingly difficult to fulfill, even if those who sentence are trying to assess desert in good faith. (In this connection, though Dahan Katz does not make this point, it is worth reminding the reader that just desert is morally nuanced, embracing many considerations besides justifications, such as lack of maturity and a host of other mitigating factors.) So, one might think, maybe sentencing juries and judges (and legislatures enacting mandatory sentences) ignorantly overreact, and this gives us a reason to jettison retributive rhetoric in our society.
But Dahan Katz makes the case that, if blame is to be laid for the perceived excesses of the American criminal “justice” system, as some of these authors wish to do, it cannot be fairly laid at the feet of retributive theory, embraced largely by academics but not much outside academic circles. There is also (and more plausibly?), Dahan Katz points out, the appeal to the dangerousness of criminals (and, I would add, appeals to fear and prejudice) by decades of political calculators. Appealing to dangerousness is comfortably compatible with a consequentialist rationale for punishment—one that alleges that human welfare (in the aggregate) is best served by deterring and incapacitating the dangerous among us, under some circumstances with extreme measures. This is a welfare orientation that some—perhaps all?—of Dahan Katz’s opponents would not willingly embrace.
Jun 26, 2024 Bill Watson
Francisco Javier Urbina,
Reasons for Interpretation (Feb. 9, 2024), available at
SSRN.
Debates over legal interpretation—like those between originalists and living constitutionalists or between textualists and purposivists—are intractable and long-running, with no end in sight. A recent and welcome development in these debates has been increased attention to the background question of how to choose an interpretive method. What kinds of facts or reasons count in favor of any interpretive method? Can a better understanding of the nature of law, language, or interpretation answer which interpretive method is correct or best? Can facts about a community’s law or legal practices do so? Or must we look instead to normative reasons, i.e., to moral, political, or other reasons that favor acting in some way?
Francisco Urbina’s article, Reasons for Interpretation adds to this growing literature on how to choose an interpretive method. His answer is simple: only normative reasons can ultimately justify an interpretive method. Defending an interpretive method therefore requires reference to things like which method best satisfies deontic constraints, advances democracy or the rule of law, or promotes other values. On the flip side, one cannot defend an interpretive method simply by appealing to facts about the nature of law, language, or interpretation, nor can one defend such a method simply by appealing to facts about our law or legal practices. These facts are relevant to interpretive choices only if and insofar as normative reasons make them so.
Urbina calls this answer to the how-to-choose question “the normative choice thesis.” That thesis aligns closely with what others, including Cass Sunstein, Richard Fallon, and Lawrence Solum, have argued before. Urbina’s key contributions are to (1) give a clear and straightforward argument for the normative choice thesis and (2) draw out generally overlooked implications of that thesis for debates among originalists, living constitutionalists, textualists, purposivists, and the like. Although Urbina does not directly enter into these debates or defend one side over any other, he offers constructive advice on how the debates can more productively move forward and on what form any satisfactory interpretive method should likely take.
As I understand it, Urbina’s argument for the normative choice thesis has two premises. First, interpretive methods concern how judges or other officials should act when engaging with a legal text for some purpose, whether that be “deciding a case, declaring what the law is, passing legislation coherent with other norms, or something else” (P. 24.) The choice of an interpretive method is thus a choice to act in some way. Second, a choice to act in some way must ultimately be justified by normative reasons alone. Facts about our concepts, law, or practices bear on how to act only insofar as they give us normative reasons. From these premises, Urbina concludes that the choice of an interpretive method must ultimately be justified by normative reasons alone.
I will return to this argument shortly, but first I want to highlight one implication that Urbina draws from its conclusion—namely, that interpretive choice is contingent. The normatively best interpretive method may vary according to who is doing the interpreting, what kind of text is being interpreted, the surrounding social or political context, etc. Given these variations, it would be shocking if a single method turned out to be best across the board, for all interpreters in all contexts. Many judges and theorists today publicly identify with a single method (e.g., “I’m a textualist”); but if Urbina is right, they should instead make more limited claims about which method is best relative to performing a specified role in a specified range of contexts.
Crucially, contingency does not entail the absence of regularity. We need not infer that the most that anyone can say about legal interpretation is that judges should exercise normative judgment on a case-by-case basis. Even if no interpretive method is best for all cases, the balance of normative reasons may predictably favor adopting one method in a subset of cases. This result, as Urbina notes, “vindicate[s] the fainthearted” (P. 53.) A common move in interpretive debates is to criticize one’s opponents for inconstancy—for failing to adhere to their interpretive method across the board. But that inconstancy may be a feature, not a bug (providing that a principled line exists between contexts where the method should apply and contexts where it should not).
While I am friendly to Urbina’s argument, I should note a respect in which it may be vulnerable. He offers little support for his first premise, i.e., that interpretive methods are about how judges or other officials should act. In this respect, he does little to engage with Mark Greenberg, Scott Shapiro, and others who deny that premise and claim instead that interpretive methods are about how to discern what the law is. Likewise, his article may not speak to textualists or originalists who claim that their methods concern how to follow the law. In short, more needs to be said to show that our debates over legal interpretation are centrally about how officials should act; but once we accept that premise, Urbina helpfully demonstrates what follows from it.
Lastly, one might wonder: What accounts for the recent surge of interest in how to choose an interpretive method? My sense is that what Urbina calls the “normative choice thesis” has been largely taken for granted for much of the history of these debates. Earlier participants in the debates—from Justice Scalia to Judge Posner—typically focused on normative reasons for interpreting legal texts one way or another, without seeing a need to explain why normative reasons mattered. More recently, however, an increase in non-normative arguments for interpretive methods (based on general jurisprudence, a community’s law, etc.) has built up pressure to clarify what exactly interpretive methods are and how to adjudicate among them.
Urbina takes up this task of clarifying the ground rules for interpretive debates. More than that, he explains the form that any viable interpretive method is likely to take. We should be wary of sweeping pronouncements about how to interpret legal texts irrespective of an interpreter’s role, the relevant area of the law, and other circumstances. What we need instead are “more tentative, circumscribed, compromising, and, overall, modest proposals for interpretation” (P. 55.)
May 30, 2024 Thomas Bustamante
Some influential philosophers believe that law does not give us any “real” reasons for action. Like games, fashion, and etiquette–we are told–law guides our behavior only in a weak and uninteresting way. It provides “formal,” rather than “robust” reasons for action. Legal philosophers should, therefore, find a better use of their time, by turning their attention to more relevant subjects, like morality and metaethics. This claim is not just a second-order assertion to entertain academics in philosophy seminars, but a consequential practical point. If you accept it, you may think that law possesses neither “practical” nor or “influential” authority, but only, if any, a sort of “theoretical” authority: law sometimes gives us reasons to believe in “the truth (or falsity) of deontic propositions, but it does not give reasons for action.” The only role law can play is an epistemic role: law can point at some action when we do not know exactly what to do. Even in that case, however, it only gives us reasons when we do not feel the need to deliberate carefully or think too hard. The law is given and we think fast when we think about law. The law might help us “do the thinking” when we are lazy or the matter at stake is not serious enough, but it cannot alter the actual balance of reasons. If you face a true ethical challenge or a serious practical dilemma, you’d better turn to morality instead of law.
Some nice books on the rule of law recently resisted these thoughts. It has been argued, for instance, that this mindset does not “take the law seriously” because it neglects a fundamental interpretive dimension of law, and that it fails because it disregards the law’s ethical role in our communal lives. These and other intriguing philosophical works grew under the influence of Jeremy Waldron’s contributions to the rule of law, which are spread over a sea of papers that only a very diligent researcher could recollect. I am happy that he has now published some of these works in a coherent and well-organized collection. Waldron’s scholarship on the rule of law displays even more subtly and depth when these works are read together.
In the inquiry about the character of law, one of Waldron’s most central worries is with what he calls a “casual positivism”. “Modern students of jurisprudence–particularly modern legal positivists–are too casual about what a system of governance has to be like in order to earn the appellation ’law’” (P. 42). They seem to think that law is just a device for social control, which guides us only with discrete rules that leave little room for practical judgment of the subjects of legal governance. Legal authorities guide us, for casual positivists, in a behavioristic way, because they merely intend to get us to “do” certain things. Legal commands direct us in the same way that someone is “herding cows with a cattle prod or directing a flock of sheep with a dog” (P. 81). This is not proper legal guidance, Waldron suggests, because most of the time the law guides us with practical standards instead of a strict “model of rules,” in the sense that Ronald Dworkin made famous in his earliest works. (P. 124.) To be sure, Waldron thinks that even when the law purports to guide our behavior with discrete and specific rules, like speed limits and warning signs, it need not be interpreted in a behavioristic way. When the law respects our dignity–-as it must–-“it takes seriously the mental and epistemic aspects of full-blooded human agency” (P. 125).
Waldron thinks that in some matters the law must adopt specific rules because a requirement of clarity becomes especially important and we must have a determinate legal response to “monitor and self-control” our behavior to a clear indication stated in a legal provision. But this does not happen all the time. Clarity and predictability are without doubt important values and a relevant concern of the rule of law, but they don’t exhaust its normative significance. “Having one’s action guided by a norm is not just a matter of finding out the norm and conforming one’s behavior to its specification. It can involve a more complex engagement of practical reason than that” (Pp. 20-21). In communities that treat us as rational agents, the law usually resorts to general clauses and abstract standards like “reasonable,” “fair,” “prudent,” “giving due regard” and the like to require an “evaluative judgment” of the people whose conduct is guided by public laws. (P. 127.) These terms, according to Waldron, are not merely empty slogans like “Do the right thing,” but rather have some “cognitive content” that can be grasped by responsible legal subjects. (P. 114.) The law uses these standards not only when it orients the reasoning of officials and organs of the state, but frequently, and crucially, when it assigns to individuals the task of “applying norms to themselves” (P. 96). In such cases, the law “mobilizes the resources of practical intelligence possessed by the norm subject” and guides her agency by “triggering thoughtfulness” rather than “superseding” it by completely predetermining a human behavior in advance. (P. 21.)
Waldron emphasizes, therefore, the “argumentative character” of law. Any respectable philosophy of law, he argues, must offer not only an account of the concept of law but also an account of the rule of law and how these two concepts are intrinsically intertwined. (Pp. 35-74.) Moreover, a philosophy of law must explain both the “formalized procedural aspects” of juridical argumentation–including courts, hearings, and so on–and the “defining role of law’s aspiration to achieve coherence among the norms that it contains and to the forms of reasoned argumentation that are involved both in maintaining consistency and in bringing it to bear in the application of norms to particular cases’” (P. 70). I think it is a distinctive aspect of Waldron’s jurisprudence that he accepts (and draws inspiration from) Dworkin’s idea that the law’s argumentative character makes it a special kind of social practice, where legal subjects (judges and citizens alike) are “protestant” interpreters, because it is part of their political responsibility to make their “own judgment” about the content and the integrity of contested political concepts. This idea is so crucial in Waldron’s book that at one point he writes that he is “paraphrasing” Dworkin when he challenges the assumption that the value of a precedent lies in its predictability and advocates, instead, a more judgmental character of precedent-based reasoning. (P. 28.) Precedents work, for Waldron, as “points of departure” rather than “major premises,” because “unlike statutes and the provisions of written constitutions, cases do not easily disclose the principles of their decisions” and we must, in consequence, “argue our way upward through the cases themselves to arrive at the principles they stand for” (P. 29).
It is true that Waldron’s analysis of legal standards (Pp. 124-34), stare decisis (Pp. 179-207), self-application of laws (Pp. 96-119), and probably other topics sound admittedly Dworkinian, and that the point about precedent made in the previous paragraph sounds very much like Dworkin’s account of “local priority” in legal reasoning and “justificatory ascent.” Nonetheless, Waldron is doing much more than paraphrasing Dworkin on these important points. Although Dworkin repeatedly argued that responsible interpreters make their own judgments to make sense of contested legal concepts, he left this view relatively undefended. While Dworkin mentions an intriguing connection between the interpretive value of integrity and the principle of political equality, in chapter 6 of Law’s Empire, he does not defend it with a general account of the rule of law and a complementary account of rational human agency; he does not make an explicit approximation between human dignity and the ordinary thinking about legal concepts in our practical deliberations.
Waldron’s analysis of thoughtfulness in juristic reasoning–-either in the reasonings we undertake to apply the law, in acts of self-application (Pp. 96-120) and in institutional procedures where we make submissions and present our views before others in legally regulated processes (Pp. 159-78), or in the legislative processes in which we explicitly make new laws (Pp. 212-18)–-does a wonderful job in at least two crucial matters: first, in refining our intellectual responsibilities towards the law, i.e., in making them more concrete and specifying the “micro-jurisprudential” aspects of legal inquiry (or, if you prefer, the “details of the way in which laws actually operate” and orient our judgments) (Pp. 106-09); secondly, and perhaps more importantly, in explaining how the rule of law protects our dignity in a way that is “deeper, more pervasive, and more intimately connected with the very nature of law” (P. 75). The rule of law (or, if you want, the law) protects a person’s dignity by recognizing her “as having the ability to control and regulate her actions in accordance with her own apprehensions of norms and reasons that apply to her”, i.e., by assuming that “she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organizing her life), an account that others are to pay attention to” (P. 76.) This is not only Waldron’s greatest contribution to the rule of law. It is one of the most important ideas that the rule of law entertains, and I think that if you don’t grasp this idea you will fail to understand anything else about the “law” or the “rule of law.”
Hence, if, like the philosophers cited in the opening paragraph of this review, you desire to proclaim your belief in the law’s uselessness in practical reasoning, I advise you not to read Waldron’s book. It might shake your confidence and undermine your casual positivism about the character of law. But if, as I hope, you wish to enhance your understanding of the law and capture how it is related to our dignity and our rationality, more generally, this is one of the first books you should read.
