Legal Judgment as a Serious Matter

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.¹ 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.”² 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.³ 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,⁴ and that it fails because it disregards the law’s ethical role in our communal lives.⁵ 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.⁶ 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.⁷ 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”⁸  in legal reasoning and “justificatory ascent.”⁹ 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.

1. David Enoch, Is General Jurisprudence Interesting? in Dimensions of Normativity: New Essays on Metaethics and Jurisprudence 65-86 (David Plunkett and Scott J Shapiro, eds, 2019) .
2. Heidi Hurd, Moral Combat (1999), 153-154.
3. Daniel Kahneman, Thinking, Fast and Slow (2011).
4. David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart 79-87 (2022),.
5. Gerald J Postema, Law’s Rule: The Nature, Value, and Viability of the Rule of Law (2022).
6. Neil MacCormick, Rhetoric and the Rule of Law, 14-15 (2005).
7. Ronald Dworkin, Law’s Empire 239 (1986).
8. Id. at 251.
9. Ronald Dworkin, Justice in Robes 55 (2006).