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Sep 15, 2022 Robin Kar
Many philosophers of the private law could profit from a close read of a new article by Professor Larissa Katz entitled Equitable Remedies: Protecting “What We Have Coming to Us.” The article draws a distinction between “what is ours” (the content of which is defined by various bodies of private law like property and contract, according to Katz) and “what we have coming to us” (which is, roughly, what we would have if we were to have full access to what is ours, without obstruction, diversion, or expropriation from anyone with notice).
According to Katz, private law obligates parties to respect what is ours, in part by offering legal remedies that allow us to hold others accountable to pay for losses associated with their failures to meet those obligations. Private law gives us normative powers, which can help us define what is ours, thus helping us to plan our lives and exercise our liberties. There is, however, always a gap between what is ours and what we have coming to us because enjoyment of what is ours sometimes depends on how others act or exercise their normative powers. This gap cannot always be closed by standard legal remedies, insofar as they only compensate for losses. Professor Katz’s thesis is that many equitable remedies from diverse areas of private law can be understood in a unified manner as seeking to close that gap by preventing others (sometimes even third parties who are not subject to standard legal remedies) from obstructing, diverting, or expropriating what is ours, thereby protecting what we have coming to us.
Despite Katz’s terminology, I do not think it is ultimately productive to think of Katz’s distinction (i.e., between “what is ours” and “what we have coming to us”) in purely temporal terms. On the side of “what is ours,” Katz includes not only existing property rights but also rights to future contractual performances. The gap she has in mind seems to be less about time and more about an important limitation of legal remedies—and hence of the law—to ensure that we can enjoy fully what is ours without equity’s help.
Let us examine one of Katz’s future-oriented examples from contract law to elucidate the distinction she has in mind. Katz asks the reader to consider a contract for the sale of Blackacre. If the purchaser were to pay the price of the land and the seller were to refuse to transfer title, then—Katz correctly observes—the purchaser could seek specific performance in a claim for breach of contract. Interestingly, this legal remedy can function not only as an in personam right to performance from the seller (which falls within “what is ours,” in her terminology) but also as an equitable lien that attaches to the land and can be asserted against any subsequent buyer with notice of the earlier agreed-upon sale. Because there is no privity of contract between the original claimant and these subsequent buyers, and because there is no loss arising from any entitlement that both these parties agreed to, this aspect of the equitable remedy is an important legal datum that has thus far received too little attention in discussions of contract remedies. Katz suggests that the existence of this equitable lien reflects an interest in protecting not just what is ours but also what we have coming to us.
Similarly, if the original seller of Blackacre were to transfer title but not receive payment, the seller would typically have not only a remedial right to the purchase price (which is part of what is “ours,” in Katz’s terminology) but also an equitable lien that would allow the seller to resort to the land to secure that payment. That lien would typically run against some third parties (who acquire the land with notice of the original sale) and so could not arise simply from the agreement in the contract either. Here is another legal datum that resists many familiar explanations, and—once again—Katz suggests that its existence reflects an interest that goes beyond protecting what is ours to protecting what we have coming to us.
I find these aspects of equitable remedies fascinating. There appear to be aspects to these remedies that become available only once there is a contract but also go beyond what many contract theorists have sought to explain in the context of property sales. In identifying these features, Katz is clearly profiting from her extensive work in property law and how it operates. But she is also—I think—articulating one specific way that legal remedies can be “inadequate” (which is a common trigger for equitable remediation)—thus clarifying an important aspect of the limits of law and the importance of equity.
An account like this would surely profit from a wider look at equitable remedies in a broader range of contexts. Katz does not disappoint in that regard. She offers parallel and often intriguing accounts of puzzling aspects of equitable remedies in areas ranging from property law and nuisance law to unfair competition, the law of wills, and civil procedure. Katz’s explanations of these broader doctrinal facts are not the only ones available, and different readers will find different accounts more or less compelling. Still, this broader discussion is greater than the sum of its parts. Its cumulative impact is to offer generous support for the claim that legal theorists in a number of areas may well profit from close attention the distinction she draws between what is ours and what we have coming to us. That alone is a reason to read this article carefully.
Aug 3, 2022 Barbara Levenbook
In this book, The Making of Constitutional Democracy: From Creation to Application of Law, Paolo Sandro has done what few in recent common law scholarship have attempted: presented a persuasive case for the interconnection between some issues in high legal theory and democratic legitimacy. His excursion into legal theory is needed to argue against, among others, Kelsen, legal realists, critical legal scholars, and interpretivists that there is a meaningful distinction between law-applying and law-creation and that the former is not always the latter. But these points are also pivotal to democratic theory. His case, briefly put, is this: if there is only constant creation of meaning in legal processes, then there is no such thing as applying the (ex ante) law, and law could not fulfil its function of conduct guidance in complex societies. Also, there would be no way that people rule themselves, even through their representatives, for whatever is legislated or democratically created does not (ex ante) determine the results of individual cases. So there could be no real collective autonomy, undercutting democratic legitimacy.
Sandro is discussing law-application not only by officials, but by private law subjects as well. The book is a real learning experience. If you have accepted some of mainstream legal or political thinking, get ready to have several of your received ideas challenged on a sophisticated level.
The degree of precision in this discussion may be surprising to those who are familiar with the usual English-language literature on the separation of powers, the rule of law, constitutions, and norms, to name just a few subjects. The book discusses theories and draws insights from both Anglo-American jurisprudential scholarship and the Continental tradition. It does this so much that at points, it has a survey-the-literature quality. You will learn much more than you expect about the positions of thinkers on a variety of topics in theoretical jurisprudence and political theory. That includes taxonomies and classifications that do not always seem essential to Sandro’s main argument stream, but may be valuable as clarifying frameworks in some debates.
All sorts of topics receive Sandro’s treatment: the nature of constitutions and constitutionalism, the linguistic meaning of legal texts, the nature of discretion (and why Dworkin’s taxonomy isn’t helpful or accurate), the connection between normative defeasibility and radical rule scepticism, the doctrine of the separation of powers and the difference between it and the division of powers, even (briefly) methodology in general jurisprudence. The book also offers a criticism of Hobbes, based on archaelogical discoveries, on the passage from pre-political to political society; a view of the common law as a different kind of law, having a different kind of connection, to the exercise of political power than code law; a critique of Leiter’s moderate legal realism (borrowed from Schauer); and an account of a tension between two ideals, the rule of law and what Sandro calls “legality.” We learn, e.g., a constitution can be only political in nature, and that there are four types of rule application with different amounts of discretion associated with them. In these respects, the book is a tour de force.
The book has limitations. One of the most important for common law thinkers is that Sandro’s account of law-application only pertains to norms that can count as what is communicated by a legal text (created by an authority with the power to do so), according to his theory of the meaning of legal texts in Chapter Five. He has no clear account of law-application for common law decisions by courts, even those following precedent, or of law-application for those courts applying principles of a political constitution, as in the U.K.
What interests me most in the book is Chapter Five, where Sandro rejects the Gricean and neo-Gricean accounts of meaning and favors the idea of text-acts to replace the idea of speech-acts for legislation. I think he’s done an excellent job in this, with compelling and carefully crafted critical arguments, grounded in sound empirical observations. He is intent on correcting the direction of much legal theorizing by “putting lay people back at the centre of law’s interpretive field….” (P. 5.) Establishing, correctly, to my way of thinking, who controls meaning and how are large steps in this direction. This enables him to give an account of easy cases (when legal texts are all that is at issue) that do not require adjudication, a realm of determinacy in law.
I do not agree with all of Sandro’s philosophical claims, even in Chapter Five; but I think the reader will find that in spite of a few flaws, the book is a worthwhile addition to the literature on a number of key topics in legal theory and democratic theory.
Jul 5, 2022 Thomas Bustamante
David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart (2022).
David Dyzenhaus argued in the last paragraph of The Long Arc of Legality that, except for the rare cases where there is a need for a revolution, “our moral and legal lives are completely and utterly intertwined.” (P. 422.) But this apparently radical endorsement of natural law theory is nuanced because Dyzenhaus has only a pragmatic morality in mind. In agreement with Hart, he rejects the assumption that legal philosophers should choose between the metaethical positions of moral realism and emotivism (P. 370) and suggests, instead, that the law is a kind of “laboratory for the testing of moral ideals.” (P. 387.)
A distinctive and interesting part of Dyzenhaus’s contribution is his explanation of how that pragmatic morality relates to law. To understand the law’s authority, Dyzenhaus puts legal subjects, instead of officials, at the center of legal inquiry. Jurisprudence’s “first question” becomes the question that legal subjects are entitled to ask from the legal system’s internal point of view, that is, the question “But, how can that be the law for me?” (P. 2), which Bernard Williams described as the “Basic Legitimation Demand” of any political society. A modern state must satisfy that justificatory requirement because that is what shows that such state “wields authority, rather than sheer or unmediated coercive power, over those subject to its rule.” (P. 213.)
An equally important element of Dyzenhaus’s construction is the “constitutional idea” that there is an “ongoing practice which constitutes legitimate authority” by means of the “voluntary interaction of the very subjects who are subject to that authority.” (P. 3.) Dyzenhaus turns to Hobbes’s social contract to justify this point. Nevertheless, he emphasizes a frequently neglected aspect of the role of officials in Hobbes’s Leviathan, which is the interpretive role to maintain both the civil order and the “mutual relationship of protection and obedience” that are constituted through that contract. (P. 6.) The “first question” of jurisprudence, adduced above, is constantly reiterated and must be answered to every subject, in every act of legal creation and application of juristic norms.
Dyzenhaus believes we should put to the side the question whether there is a necessary connection between law and morality and concentrate our efforts, instead, in developing a dynamic theory of law. The fundamental debate within jurisprudence is “neither between legal positivism and natural law theory, nor between theories of law and theories of adjudication”, but rather the divide “between static theories of law, as espoused by Bentham, Austin, Hart and Raz, and dynamic theories, as espoused by Hobbes, Kelsen, Radbruch, Fuller and Dworkin.” (Pp. 22-23.)
This brings us to a crucial disagreement between Kelsen and Hart. The problem of Hart’s Separability Thesis, for Dyzenhaus, is that it presupposes a static conception of law. Hart’s objections to Kelsen’s epistemological principle of unity – that prevents one from accepting a conflict between a legal and a moral norm, or between a municipal norm and a norm of international law – “missed entirely the most important dimension of Kelsen’s legal theory” (P. 20), which is the fact that such theory includes an account of the “dynamic process of legal change”, instead of remitting these changes to an exercise of discretion in an “extra-legal space.” (Id.)
While Kelsen’s legal theory is a dynamic theory that explains the legal ways in which officials perform their task to interpret and develop the law, Hart’s jurisprudence has little to say about legal interpretation. On Kelsen’s hierarchical structure of legal norms, “law regulates its own creation inasmuch as one legal norm determines the way in which another norm is created, and also, to some extent, the contents of that norm.” When we consider the details of this interpretive claim, we can appreciate another important difference between Kelsen and Hart. Legal interpretation, for Kelsen, is partly determined by the “juristic” values embedded in law, which Dyzenhaus–contrary to Kelsen’s self-understanding (x)–interprets as the “principles of legality” that constitute the “internal” morality of law, in Fuller’s sense (P. 316.)
Hart’s jurisprudence, in turn, upholds that in every legal case there is either a rule with a determinate legal content, or a penumbra space where a legal change is required, so that inside that space the judge is “not doing anything different from legislators” who resort to an external morality in order to modify the law. (P. 219.) Hart’s account of judicial discretion becomes, therefore, vulnerable to Austin’s “biggest mistake,” (P. 20) which was to treat the “law as a system of rules complete and ready for application, without regard to the process of their creation.”
Perhaps a traditional legal positivist will be unhappy with these thoughts, because Dyzenhaus ends up finding more connections between Kelsen and Dworkin than one could ever find between Kelsen and Hart. According to Dyzenhaus, Hart was wrong to accuse Dworkin of trying to undermine a theory of law by offering only a theory of adjudication that stands in a different level. That accusation fails, Dyzenhaus argues, precisely “because Dworkin, like Kelsen, argued for a dynamic model of law.” (P. 248.) Part of the task of a dynamic theory of law is to explain how the law regulates its own creation, including by means of adjudication. “For Kelsen the conflict [between municipal law and international law, or between law and morality] arises only if one adopts the static conception of law,” because on the dynamic model the legal order itself provides the procedures and the interpretive principles that allow this conflict to come to an end. The epistemic principle of unity, which underlies Kelsen’s postulate of a basic norm that allows us to interpret a set of authoritative pronouncements as constituting a single system, establishes a requirement of consistency and determines the “specific function of juristic interpretation,” which is to “eliminate these contradictions by showing that they are merely sham contradictions” once the law is understood in an intelligible way.
The best place to look for Dyzenhaus’s pragmatic morality, therefore, is inside the law, in the “principles of legality” that discipline the way in which political power is transformed into law. The law makes a moral difference in our lives not because it mirrors a pre-existing external morality that must be reflected in its norms (or, perhaps, a personal morality that a good-faith interpreter might wish to project into the law), but because it establishes processes for mediation between authorities and legal subjects, whereby “political judgments are converted into legal content.” (P. 3.)
The principles of legality play, in this dynamic process, a double role, which corresponds to two different “Kelsenian ladders” in the law’s hierarchical structure (or, if you want, two different aspects of the same ladder). As Dworkin explained in an early comment on Hart’s critique of Kelsen’s doctrine of the unity of law, Hart presents a question-begging response to Kelsen, when Hart objects to Kelsen’s requirement of consistency among different norms. Kelsen’s argument against normative conflicts should not be treated as a strictly logical argument, because that argument is not a descriptive statement of the kind an external observer asserts while purporting to report the content of a given norm, but rather a statement within the “dynamics of legal reasoning” that purports to make a conclusive statement “that some man or some official ought to do something,” all things considered.
It is this Dworkinian insight that inspires Dyzenhaus to develop the metaphor of two different Kelsenian ladders. The content of a norm must be justified both because the enactment of such norm is “legally authorized” and because it “fits within the unified field of legal meaning made up of substantive as well as formal norms” (P. 258.) In other words:
Besides the ladder of formal authorization there is what we can think of as the ladder of material concretization. When legal officials exercise their formal interpretive authority, they are also giving further content to the norm or norms they are interpreting, which requires an act of creative judgment. But, while creative, the judgment is constrained by the requirement that its content is understandable as a norm within the unified field of meaning. (Id.)
One of the roles of Kelsen’s basic norm, for Dyzenhaus, is to provide an epistemological norm that not only instructs officials on how to create a law, but establishes also an intellectual requirement to understand it in a meaningful and intelligible way. As Kelsen has put in a relatively early essay, “if the system of positive legal norms, reared upon the basic norm, is to be a meaningful whole, a comprehensive pattern, a possible object of cognition in any sense…then the basic norm must make provision for it”. To establish the validity of a legal system, the basic norm must contain a principle of non-contradiction and a set of “principles of interpretation” to determine how to understand the law.
By focusing on this aspect of Kelsen’s theory, Dyzenhaus departs from a central assumption of an influential interpretation of Kelsen in contemporary jurisprudence, namely the “weak reading” of authority, which claims that law’s authority is primarily addressed to legal officials.(P. 163.) If Dyzenhaus’s interpretation of Kelsen is right, it is the other way round: Kelsen’s theory of legal authority should be interpreted according to the strong reading of authority, because it places the “legal subject” in the “front and centre” of any authority relationship. (P. 164.)
Furthermore, the basic norm plays not only the role of explaining the seemingly evident fact that the constitution – if we consider only the validity of a municipal legal system – is legally valid (Id.) It performs, in addition, an interpretive function because it allows us to establish the right way – instead of only another way – to interpret and understand the content of law. By allowing us to understand the law as a dynamic system, which is conceived of as a gapless system, it assumes a principle which governs the way in which we interpret the law and explains how a polity is “governed in accordance with the rule of law in that law regulates its own production and all legal problems are solved in a dynamic law-governed process.” (P. 166.)
I think that Dyzenhaus’s Kelsenian account of interpretation, legal authority, and political legitimacy is very successful. Dyzenhaus’s book is a masterpiece. There are few works in contemporary legal philosophy that match its standards of quality and innovation. Dyzenhaus’s book combines the virtues of originality and insight, which are typical of authors like Dworkin and Raz, with the equally important virtues of discipline, sensitivity to historical context, interdisciplinarity, and generosity in the interpretation of other authors, which mark the works of Postema and other scholars.
You might find Dyzenhaus’s opinions unorthodox and distant from Kelsen’s original insights, and perhaps you are right about that. In effect, Dyzenhaus explicitly claims that “Kelsen’s theory cannot remain “pure”, or at least not pure in the way he understood this attribute, that is, as apolitical”. (P. 418.) But I suppose that, as a pragmatist, Dyzenhaus probably wouldn’t mind. After all, Dyzenhaus interprets Kelsen’s theory in the same way that a pragmatist would interpret our political morality or, perhaps, the internal morality of law, that is, by making explicit the implicit commitments of such morality (P. 386) and eliminating incompatible assumptions therein. (P. 387.) This pragmatic yet non-instrumentalist method of legal interpretation is one of the most promising candidates to overcome the current deadlock between natural law and legal positivism (P. 1), that seems to prevent the possibility of progress in the legal philosophy of our time.
Jun 2, 2022 Andrew Halpin
Often an article or essay proves valuable for the points it directly advances in promoting the author’s view on the subject matter it covers. Sometimes, additional value is produced because the piece indirectly stimulates fresh thinking on that subject matter, irrespective of whether following those novel lines of thought proves to be compatible with or at variance with the author’s own viewpoint. In these terms, Kevin Toh’s essay on Legal Positivism and Meta-Ethics in The Cambridge Companion to Legal Positivism provides double value.
Toh is directly concerned to raise a number of important points related to the different levels legal theory operates on, and how an appreciation of meta-ethics might inform our understanding of the relationships between these levels and the fruit that might yield. Meta-ethics may assist both by analogy (P. 566), and by contributing its own perspective on an appropriate delineation of morals so as to inform legal theory’s own preoccupation with the law/morality connection or divide (P. 570). That latter contribution is expanded by Toh into an endorsement of wider philosophical collaboration between different disciplines. And it is this use of “resources made available by other areas of philosophy and related empirical disciplines” (P. 570) that shapes Toh’s own tentative contribution to understanding the nature of law. (P. 581.)
Indirectly, Toh’s work here stimulates a number of reflections on the different levels of legal theory. Potentially there are three: first order, addressing what the law is on a particular issue (563); second-order, concerned with the nature of law (P. 563); and a metatheoretical level, derived from meta-ethics, whose own precise concerns and accomplishments are less clear. (Pp. 565-66, 571.) Considering the interaction between different levels should produce a fuller awareness of what can be expected from legal theory, including the possibility of establishing the “ultimate legal grounds” (Pp. 567-68, 581) for determining what the law is.
Toh covers a number of issues. Some are central to his principal objectives. Some are ancillary, even tangential, to his primary concerns. Throughout, he provides observations and insights that merit serious attention. A central issue is the “double duty presumption” (Pp. 563-65), whereby it is presumed that a general theory of law provides common criteria for answering the second-order question on the nature of law and the first-order question on the valid grounds for reaching a determination of what the law is. Toh draws on the example of meta-ethics to argue that such a presumption is unfounded. (Pp. 565-67.) An ancillary move here involves a rejection of the widespread reading of Hart as accepting the link between the two questions. (P. 565.)
The other issue of central importance to Toh is the possibility of establishing (rather than presuming) a connection between the two questions, and here the influence of meta-ethics is paramount. (P. 569.) Toh explores in a sophisticated manner the prospects of establishing “modal constraints” on what can count as “ultimate legal grounds” through second-order legal theory. (P. 569.) Initially, his argument takes inspiration from the work of Peter Railton, considering the possibility of a meta-ethical understanding providing general criteria for what counts as a morality. (P. 566.) At this point, we have only a second-order appreciation of the nature of morality. The suggestion is then made that a similar move within legal theory might yield first-order theoretical results on what can count as ultimate legal grounds for determining the law. (P. 571.) The substantive work in pursuing this strategy (Pp. 571-78) is adroitly undertaken by Toh. He engages with the familiar material of the internal attitude present in the acceptance of rules, enhanced by attempts to thicken the notion of acceptance, to the point of contemplating the existence of “metaphysically contingent but naturally necessary” facts about human nature and the human condition. These are viewed as capable of shaping “the ultimate grounds of the law of any human legal system.” (P. 578.)
In a fair-minded critique of his own strategy (Pp. 578-81), Toh concedes that it has not, as yet, brought about a fulfillment of its promise. He acknowledges that the modal constraint as developed could be diluted to provide support for the laws of a particular legal system, even one we regarded as immoral, solely from the attitudes of its participants. (P. 581.) Nevertheless, he expresses the hope that the strategy he has explored here will impact upon the future course of theoretical debates on the nature of law, and legal positivism. (P. 581.)
There are good reasons to expect such an impact. However, in the remainder of this jot I want to draw attention to the indirect stimulation he has provided, to consider wider issues regarding different levels of legal theory, and what we can reasonably expect them to deliver. One immediate point to note is that the three distinct levels I mentioned in the introductory remarks above are not recognized in Toh’s discussion, either of legal theory or of ethics. This is apparent from Toh taking as a parallel to meta-ethics not a meta-theory of law but a second-order theory of law. Effectively, he treats meta-ethics as a second-order theory, and then a second-order theory of law as sharing its characteristics. He treats both as theorizing about the nature of morality (Pp. 566, 571) or of law. (Pp. 562, 570.)
For Toh, the pay-off from an understanding of the nature of morality or law is the ability to identify something as that, without necessarily endorsing it. (P. 566.) This applies both to the practices of a community (as amounting to morality or law) and to the specification of a theory (as a theory of morality or law). Yet, if this is the case, then there must be some distance between having a grasp of the nature of something so as to correctly identify it, and contesting with others working on the matter identified what exactly is its nature. That is to put the point in relation to competing theories of morality, such as Kantian or utilitarian (P. 566); or competing theories of law, such as positivist or anti-positivist. (P. 568.) In that case, it would be possible to recognize a metatheoretical specification of what counts as a second-order theory of law (or morality). Similarly, with the recognition of the practices of a community as morality or law, we might identify the practices as such, while still contesting what those practices should amount to. (Pp. 566, 581.)
If the role of a metatheoretical perspective is taken to be identification of the subject matter, leaving open theoretical divergence over its nature, its work is greatly diminished. Moreover, there is no reason to assume that this work should be given to meta-theory. Why not commence with a more finely grained appreciation of human experience and select from that those parts which warrant theoretical investigation as the same subject matter? In this light, Anthea, whose job it is to discover whether a community has law (Pp. 561-62) may choose not to email a philosopher friend but to call on the services of an ethnomethodologist.
Toh clearly has a more significant role in mind for a metatheoretical approach, in controlling what counts as the substance of a theory of law, ultimately at a first-order level. (Pp. 568, 578.) In turn, that requires second-order legal theories to internalize a metatheoretic outlook, in this strong sense (P. 569). If competing second-order legal theories sign up for this, then what theoretical height must be scaled in order to judge between them?
It is far from clear that any general theories of the nature of law boast of the capacity to deliver according to these demands: second-order enlightenment on the nature of law, providing first-order clarity on the ultimate grounds for determining what the law is, while exhibiting a metatheoretical stricture ruling out opposing theoretical perspectives. Bentham comes to mind, but that would only hold for his ethical theory. Even Ronald Dworkin, with his insistence on the importance of theory for practitioners, fails to explain how Gray J. in his dissent in Riggs v Palmer got hold of the wrong theory.
Questioning the credibility of a metatheoretical perspective to take control of legal theory, so as to ensure results at the level of determining what the law is, then raises a basic question of whether that expectation for legal theory was ever realistic. If this question is answered in the negative, we might have recourse to other disciplines, as Toh encourages, but not in order to strengthen the construction of legal theory across its interlocking levels. Rather, to acknowledge its limitations and the need for those to be complemented by other resources.
Cite as: Andrew Halpin,
Taking Control With Meta, JOTWELL
(June 2, 2022) (reviewing Kevin Toh,
Legal Positivism and Meta-Ethics,
in The Cambridge Companion to Legal Positivism 561 (T. Spaak & P. Mindus eds., 2021)),
https://juris.jotwell.com/taking-control-with-meta/.
May 2, 2022 Maris Köpcke
Perhaps it was the French Revolution that set it free. Since then, it haunts constitutional thought. It lures writers through a dubious promise of democratic credentials. It looms large in recent accounts of constitutional legitimacy. They have sought to “domesticate” (Pp. 796, 803; also P. 810) the beast by subjecting it to liberal and democratic constraints. But the beast resists such domestication, argues the paper. Appeal to constituent power as the source of constitutional legitimacy is deeply at odds with constitutionalism’s commitments to rights and the rule of law. One cannot both have the cake and eat it. It is either will or reason at the foundations of law. Such is the tension the author confronts us with.
This rich and insightful piece elicits reflection on a host of fundamental questions of legal and political theory. It will interest you whether you are concerned with the limits of democracy, the bootstrapping character of basic legal rules, principles of constitutionalism, or even the nature of self-determination and autonomy. It is accessible without specialist knowledge of constitutional theory. The work is more revolutionary than its title suggests. Crudely put, “Inherent Constraints on Constituent Power” argues that there are no inherent constraints on constituent power, and provides reason to think that there is no constituent power either. Let me explain.
As the paper presents it, constituent power is “the legally unlimited power of establishing or re-establishing a constitution.” (P. 796.) Constituent power refers to an act of will that is, in an important sense, self-justifying — in line with Emmanuel Sieyès’ and Carl Schmitt’s portrayals. The constitution-creating act of will, typically by “the people”, is itself the source of legitimacy of the relevant constitution. It is the source of its legal legitimacy and, it seems, of its moral legitimacy as well. In other words: the legal and moral correctness of this act of will is not open to question. The paper associates constituent power to what are sometimes called “strong” theories of popular sovereignty. (P. 800.) According to these theories, as the paper casts them, the people have the right to make a constitution with any type of content.
Thus conceived, constituent power is quite the indomitable beast. Still, as the paper shows, recent writings in liberal constitutionalism have sought to appropriate it for their purposes, perhaps in an effort to address “concerns about democratic deficits in liberal-constitutional regimes.” (P. 802.) But the beast is not easily “domesticated.” (P. 810; also Pp. 796, 803.) The writings the paper looks at, by Richard Stacey and Joel Colón-Ríos, firmly defend the central place in sound constitutions of certain individual rights and institutional arrangements, which no collective or individual decision must override. Self-justifying constituent power sits uneasily with these premises. It is not subject to legal or moral limits. It is therefore not liable to being constrained by rights or the rule of law, precisely because it claims to be a rival source of constitutional legitimacy.
Vainly postulating inherent constraints on constituent power “obscures significant tensions in contemporary constitutionalism.” (P. 812.) These tensions should be brought to the fore for the sake of “clear-sighted analysis.” (P. 818.) The paper refers to them as tensions between “democracy and constitutionalism.” (Pp. 810, 818.) At some junctures, the paper implies that the way to solve these tensions is to drop the concept of constituent power altogether, as it is incompatible with sound commitments of liberal constitutionalism. (Pp. 801, 807-08.) Tackle the beast by shooting it down.
But the paper itself suggests an alternative way forward. One of the paper’s core claims is that the writings it discusses ought better to distinguish between good and bad exercises of constituent power — between exercises that do and do not comply with liberal and democratic principles, indeed between focal and marginal cases of constituent power. (Pp. 815-17.) This would allow one to say that acts of constitutional founding by, for example, Franco or Pinochet involved constituent power (Pp. 810, 816), only to go on to normatively assess such exercises.
The implications of this suggestion go deeper than the paper notes. Thus understood, constituent power no longer has a built-in justification. It is not the thing justifying, but the thing to be justified. It is no rival to liberal democratic principles because it does not lay claim to taking their place. It is just a power like many others we find in the legal and moral domain. Legislative power, the power to promise, or the power to consent, to name just a few, may be exercised for better or worse. We can ask about the point of these powers and the practices supporting them, and identify exercises that advance or subvert that point. On this view, constituent power is just that: the power to make a constitution. (P. 814.) It may be involved whenever a constitution comes into being, but it may not always be soundly exercised.
The logic of this move is to reveal the ignominious beast to be nothing more than the bulky shadow of a pussycat. On this conception, constituent power is naturally subject to inherent constraints, certainly moral ones and perhaps also legal (well beyond the purely prudential limits the paper acknowledges: P. 814). What is meant by a “legally unlimited” power is ambiguous in any case. Even state sovereignty is in one sense legally unlimited, and in another sense very plausibly subject to legal constraints, if only from international law. Legal constraints may be synchronic or diachronic, actual or potential, and reflected in institutional arrangements of different kinds.
An account of constituent power should not remain content with telling central from marginal cases, and listing relevant constraints. It should work out the upshot of a failure to meet those constraints — a task only imperfectly accomplished in the literature, judging by the author’s sketch. Take legislative power, by analogy. A sound account will not only note that a statute that violates human rights is not a central case of legislation. It will moreover speak to the legal validity of the unconstitutional statute, institutional devices for annulment, and any moral obligation it generates, among other things. Central case analysis is no substitute for these kinds of enquiry.
To liken constituent power to a cat is not to deny the tension between choices and reasons, between decision-making acts and standing frameworks of rules. On the contrary: it is to say that the tension is fruitful rather than destructive. It should not be explained away but grappled with, as the paper prompts us to do. The very considerations of justice that call for respect of civil and political rights require that individuals and groups shape their own normative landscape, partly through the actions and techniques we call powers. Self-direction, both collective and individual, is a requirement of justice. We need to exercise self-direction to develop our identity.
The key question is not whether self-direction is appropriately subject to limits, but which limits are appropriate. Being subject to requirements of justice does not make us less autonomous as individuals, nor does it make a political community less sovereign. A sound exercise of my autonomy may involve binding myself, and so losing some of my freedom; constituent power may be no different, provided constraints are not unreasonable or unreasonably long. Popular sovereignty bounded by appropriate constitutional rules is not “weak” as opposed to “strong”. This mistakes a feature for a bug. It mistakes a cat for a beast. This paper guides us in overcoming the confusion.
Mar 29, 2022 Sean Coyle
In Reevaluating Legal Theory, Jeff Pojanowski addresses a central question of jurisprudence, that of whether a careful theory of what the law is, involves value judgments concerning what the law ought to be. (P. 1460.) In various forms, this question has been asked by philosophers from the beginning of the Western intellectual tradition. Thus, for example, Aquinas considers whether a law that is judged to be unjust (out of reasonable order) can continue to bind in conscience due to the normal authority of legal commands (Summa Theologiae I-II.95.2c; 92.1 ad 4; 96.4c). His answer is subtle and complex. Pojanowski’s article is similarly subtle and complex, and makes many useful points, though as indicated below, some of these could be taken further in future work.
Pojanowski’s article begins with a brief survey of recent responses to the central question by Oxonian philosophers, but his interest is primarily in the work of Julie Dickson. Dickson argued that the key to the controversy about the nature of law lies not in contrasting evaluation and description (i.e. that laws can be described without any evaluation), but in distinguishing types of evaluation: some evaluation (that centring upon the participants in a legal system in evaluating what is significant or important to them) is necessary, as distinct from moral evaluation, which is not. Pojanowski argues that such debates about the ‘dividing line between jurisprudence and normative philosophy’ (P. 1464: but does this not capitulate already to the positivist position?) actually turn upon broader moral considerations of ‘what is good for persons’ and ‘competing ways of thinking about society’, thus revealing something of our moral and metaphysical commitments. (Id.)
Pojanowski picks up Dickson’s identification of three types of evaluation that are necessary parts of jurisprudential theorising that are not morally evaluative: importance, significance, and illumination. (P. 1469.) The second part of the article considers the extent to which these values remain non-moral under scrutiny, and presents a general survey of Dickson’s book Evaluation and Legal Theory (Hart, 2001). It focuses upon Dickson’s claim to understand the law through the perspective of its participants. Perhaps the most obvious route for a theorist to take in this regard is some form of naturalism. But Pojanowski argues that while naturalised jurisprudence may offer a concept of law that is essentialist and value-neutral, this concept is evidently not the one Dickson has in mind when attempting to comprehend law from the perspective of the participants. (P. 1476.) This is because, inter alia, the naturalist method cannot be successfully squared with the desire to explain the nature of law in terms of the attitudes and beliefs participants have, not those of the scientist. (P. 1478.) Likewise, Dickson’s approach is incompatible with a hermeneutic explanation of law, since it seeks to remain morally detached and agnostic about the group’s understanding of law. (Pp. 1476-78.) These sections of the article are fairly brief, but they establish that Dickson’s theory has less room to manoeuvre than might be supposed. For they seek to establish that the theory cannot (a) describe essential features of law, (b) depend upon the understanding of the participants, and (c) remain morally neutral about the practice. (P. 1464.) More consideration of Finnis’s and of Voegelin’s work might have strengthened and broadened the article’s thesis, but an exploration of this avenue is beyond the scope of the present review.
The third part of the article comprises an argument for a teleological approach to jurisprudence that attempts to do (a) and (b), above, but denies (c). (P. 1479.) Its premise is that Dickson is correct to shun hermeneutic and naturalised approaches, but that it can only do so by rejecting moral neutrality. It begins with an argument that hermeneutical and interpretative approaches threaten to collapse into relativism (Pp. 1479-82) (a story about Dworkin’s theory, considered further on, might have been a useful coda to this discussion). It then explores flaws in these theoretical approaches identified by Charles Taylor, Alasdair MacIntyre and Stephen Perry (Pp. 1482-86), particularly utilizing the idea of the central case (or focal meaning in Finnis’s terms) as a means of describing both (i) the usual, normal, everyday, central instances of social practices and (ii) the non-standard, diminished, distorted, problematic, instances of those same practices. Pojanowski concludes by arguing that evaluative legal theorists should consider adopting a framework of ‘critical realism.’ (Pp. 1487-88.) Such a theory (which distinguishes the real from the observable, and hence too leads to relativism) is in broad terms ontological as opposed to empirical: a move that, for example, Finnis believes is regrettable for the ontological can only be secondary to empirical explanation. Again, the article would have further benefitted from a fuller consideration of these ideas.
But in fact, there is a shorter way to the article’s conclusions. For not only can we infer (1) legal conceptions and practices from (2) the attitudes and forms of characteristic behavior of the participants, but we can also see these attitudes and characteristic behaviors as deriving from (3) the basic needs and reasonable wants of the participants in society, and we gather these needs and wants from (4) a sound understanding of the demands and opportunities of sound practical reasoning. Teleology, which might form a fifth claim (5) that the ends of sound practical reasoning are in some way proper to the human being, plays no explanatory role in (1)-(4), which may strengthen the argument of the article, not because (5) is false (it is not), but because general attitudes to teleology among the positivist writers is so unfavorable that it would provide an occasion for those writers to dismiss the article’s argument on that basis alone.
This exceedingly brief survey of Pojanowski’s article leaves out much that is of value, and which could easily form a starting point for thinking about the theories it discusses, and the general debates in which it is involved. In one way, the article is a useful review of Dickson’s book; in another way, it goes beyond the potentially narrow debates to which the book gave rise, to touch lightly upon some of the most fundamental questions of human existence. Re-evaluating Legal Theory is an engaging and lively read. I would have liked to see some further development of the teleological argument in the article’s final section, a development I hope to see in the author’s future work. But in any case there is a multitude of ideas to be mulled over here.
