Nov 6, 2015 W.A. Edmundson
Jeremy Waldron,
Immigration: A Lockean Approach,
NYU School of Law, Public Law Research Paper No. 15-37 (2015), available at
SSRN.
Approximately eleven million people currently reside in the United States as undocumented aliens. Most of these are so-called “economic” immigrants, who do not qualify for political asylum. Due to armed conflicts in the Middle East, approximately 350,000 migrants illegally entered countries of the European Union in the first eight months of the current year. Many of these will qualify for political asylum, but many will not; for from a legal perspective they, like the vast majority of US “illegals,” have immigrated primarily for economic reasons. Not to pillage and plunder, but to seek a better life by taking up opportunities for work in these wealthier and more stable countries. In other words, they come and keep coming mainly in order to bargain freely with legal residents who will pay for their labor.
The nations of Earth claim the right to exclude non-citizens from their territories, and many actively do so. Except in extraordinary circumstances, would-be immigrants have no recognized human right to be admitted or to remain. Illegal immigration, then, can present a complex set of policy questions whose answers involve balancing a range of reasons, both for and against policies such as amnesty, adjustment of legal status, management of quotas, enhanced border enforcement, construction of physical barriers, and deportation. The reasons going into the mix include public attitudes, human hardship, monetary costs of many kinds, impacts on wages, crime rates, demand for public services, and intangibles such as community homogeneity and “quality of life.” Jeremy Waldron rightly rejects the view that the question is essentially one of policy or the application of a settled ethics of national sovereignty. Waldron has rarely shied from the role of public intellectual, and here he seems poised to embrace it with uncommon vigor.
“If there were no state or system of positive law, would individuals organized less formally into communities have the right to drive away strangers who approached their vicinity?” (p. 3)—so Waldron puts a question that ought to be central to any discussion of the justice of excluding migrants from territories. We tend naturally to accept territorial sovereignty of governments just as we naturally tend to accept the justice of individual private ownership of real property. Our acceptance is qualified, of course, but the usual presumption is that states have a right of some kind to exclude aliens at their borders, just as we have a right of some kind selectively to exclude strangers from our front porches. The sovereign right arises by aggregation of individual rights.
When the presumed right to own private property is challenged, educated English-speakers tend to turn to John Locke. Locke’s account of original acquisition, with its image of mixing labor and its proviso of leaving enough and as good for others, seems a plausible ground to stand on. So also, we may think, it supplies enough and as good a ground for the presumption that states have a right to exclude aliens, subject only to limited humanitarian exceptions. States are simply the assignees of natural individual rights.
Waldron carefully but remorselessly demolishes this comforting strategy. Assuming, for discussion’s sake, that Locke’s account of private property is valid, it cannot soundly be extended to the case of state’s claimed sovereign right over a territory. Lockean rights to real property are not “clubbable” (p. 12). Waldron has written extensively on Locke, including a book on Locke’s theory of property, and so he writes with a well-earned authority on the subject. “The Lockean approach is not the only way of justifying state powers,” he admits, but rightly adds that “[i]f the Lockean approach does not vindicate the right to prohibit immigration, then the options for its justification are drastically reduced” (p. 6). Relatively few anglophone readers can comfortably turn to Hegel as a philosophical back-up; and Waldron takes up and disposes of a number of related apologies for territorial sovereignty.
Not only is the paper forcefully argued, it shows how deeply Waldron cares about what is happening to people. This accounts for the impatience evident in his swipes at former British Prime Minister John Major’s smarmy invocation of “long shadows on cricket grounds,” (p. 20) and at the now-fashionable notion that democracies can legitimately exclude migrants to preserve a homogeneous national culture. In language that will redden some ears, Waldron declares that “Modern political philosophy has really never been shabbier than in its invocation of ‘cultural rights’” (p. 19). The concept of a state-defined culture—(don’t they see?)— is just as antithetical to liberal democracy as a state religion.
Waldron goes even farther, arguing that justice limits not only what states may do, but what citizens may permissibly ask that they do.
we are inclined to think that—whatever states have a right to do—citizens have a right (a free speech right) to advocate whatever policies they like and also a right (a democratic right) to exercise their vote however they please. But in some areas where the legitimacy of state action is restricted, it is actually not inappropriate to infer restrictions on citizen advocacy. (p. 2, fn 2)
His suggestive case for the proposition that international human rights law imposes a content-based limit on what speech states are free to tolerate is bound to be controversial. But he is right to deplore the demagogic pandering to anti-immigrant sentiment, by which many politicians try to show that they are not “out of touch.” Waldron reminds us that there are some popular sentiments that it is not a good thing to be in touch with.
Oct 2, 2015 Daria Roithmayr
Once upon a time there were banks that served the poor. Government structured banks for that purpose—government gave banks cheap money and protection against failure partly in exchange for their providing a place to deposit money, earn interest and get credit, along with economic stability, for everyone. Financial innovation, increased competition and deregulation changed all that: the period of dramatic transformation left the poor and working class without services, as banks came under competitive pressure.
Once upon a time, post offices provided banking functions, giving the ordinary customer a brick-and-mortar office to park their cash. Then competition from higher-interest rate banks changed all that; with shrinking demand, postal banking was dismantled in 1967.
Mehrsa Baradaran’s terrific book, How the Other Half Banks, argues that we could and should ask banks to serve the poor and working class once again. In particular, post office banks (with storefronts and websites both) could provide those missing banking services: a place to park cash, earn interest and take out small amount loans.
Baradaran has become the academic face for postal banking: in the wake of her article in the Harvard Law Review Forum on postal banking, she has consulted for the U.S. Postal Service Inspector General, has appeared together with Paul Krugman, and has published in the New York Times, The Atlantic, Bloomberg, NPR, Slate, and other major media outlets. Senator Elizabeth Warren has relied on Baradaran’s historical expertise in sketching out the case for postal banking as a real policy option.
The book expands on the Harvard Law Review Forum essay significantly, but for a cross-over audience, academic and trade, leaning heavily on the trade (necessarily with less nuance and fewer footnotes). The book makes two central arguments. First, despite banking’s origins as a public institution, banking no longer offers adequate services to the poor and working class in the wake of deregulation, because banks have come under competitive pressure to chase profits. Second, a public option for banking could restore these services to those who are now unbanked; in particular, postal banking is one potential public option whose time might have come again. Baradaran contributes a great deal by linking these two arguments together, to remind us of banking’s public beginnings, and to show us how postal banking cures what ails us.
In the first part of the book, Baradaran narrates the story of how banks first adopted, and then abandoned, the mission to serve all sectors of the public. History shows that government structured banks as it did on the assumption that banks would serve not just the moneyed classes, but people from humbler circumstances as well. At the broadest level, banks were originally envisioned as public institutions through which the government wielded its hand on economic policy to shepherd the national economy towards productivity. At the narrower level, banks were expected to serve all members of the public regardless of economic circumstance. For those reasons, banks were given access to cheap credit, discount windows, federal backing via FDIC insurance, and, more recently, government bailout in time of great crisis. Far from being ordinary market players, banks were stewards of public economic health, and government was entangled in every part of their operation.
Bank deregulation changed all that, together with the accompanying shift in thinking and policy, and the radical restructuring of the market. Now banks have become free to act more as private corporations with fewer restrictions, in order that banks can pursue profitability. At the same time, banks are still vested with responsibility for (and the ability to affect) the country’s economic health. Smartly, Baradaran acknowledges that banks needed to restructure, given the shift in the economy, but she quarrels with the specifics of deregulation (and tends to oversimplify a bit along the way). Still, her aim is not to criticize deregulation per se: her main focus is to demonstrate the dramatic departure from public institution to pseudo-private actor, and that she does well.
Against the historical backdrop, she sketches the problem of the unbanked—the failure of banks to serve the poor and working class. Baradaran first focuses her lens on the alternative services to which the unbanked have now turned: payday lending, title and installment loans, check cashing, and other such services. She rehearses at length the research on the existence and effect of such services on the poor and working class: bankruptcy, sky-high debt and an economic downward spiral.
One of Baradaran’s central contributions is to redescribe the problem of the unbanked in terms other than market failure. Given the level of government entanglement with banks, we can’t think about banks as following ordinary market rules (think about the Fed setting rates, for example). Accordingly, says Baradaran, the problem of payday lending and other fringe services is not a problem of ordinary market failure involving mundane asymmetries of information, but rather a structural policy problem. In particular, in the wake of innovation and deregulation, institutions that had once served the poor and working class abandoned their public mission to now chase profits, by necessity.
These institutions had little choice, she says. Owing to deregulation, credit unions, savings and loans, and other specialized and small community banks lost their once-protective geographic monopolies and now came under significant competitive pressure to improve profitability. Because community banks found it more costly to provide products and services for the poor and working class (e.g., small-amount loans, interest-based checking), banks abandoned those higher-cost services for lower-income patrons in favor of more profitable products and services.
Baradaran’s exploration of this argument is thorough: she investigates failed government efforts to require, subsidize or otherwise entice banks to provide services for the unbanked. For example, she reviews at length the Community Reinvestment Act, a regulatory requirement/subsidy scheme that failed because it required too much of banks and failed to sufficiently subsidize the full cost of providing services for the other half.
In the last part of the book, Baradaran explores potential remedies for the problem of the unbanked, as part of a call to shift economic policy to provide for them. She investigates among other options the revival of community banks, micro-credit, pre-paid cards, and Walmart banking, noting their strengths and weaknesses. One could write a paper on each of these options, and I can’t fault her completely for not spending more time on these potential remedies, though I’d have liked to see a more extended discussion, particularly of Walmart banking.
In the most refreshing and innovative contribution in the book, and perhaps the reason that I most adore it, Baradaran outlines at length the most ingenious “public option” solution: postal banking. The idea is not hers originally, but she seizes and expands on the idea brilliantly and at great length. In particular, she advances the case for postal banking by reviewing the country’s earlier experience with postal banks, and by linking that experience to the modern problem of missing services for the poor and working class.
As this chapter opens, Benjamin Franklin’s postal system comes into view and we learn about the bureaucratic and logistic wonder that is the U.S. post office. Like banking, the reach and scope of the postal system is essential to a growing economy; like banking, the system builds connections of trust between government and citizen.
Baradaran narrates the long history of the country’s first postal banks, and the debate over their existence. Baradaran shows how postal banks provided for the needs of the working poor, and how in fact postal banks were adopted for that very reason. In a real moment of déjà vu, Baradaran recounts the financial crisis—the Panic of 1907—that paved the way for the country’s full embrace of postal banking, as a way of providing for those toward the bottom of the economic ladder.
Baradaran then persuasively argues that postal banking might now be revived to provide both deposit and credit products and services for poor and working class customers. Although postal banks historically provided mostly the opportunity for savings, and less for extension of credit, the book suggests that small-amount loans could be offered via postal banks. For those who deal in cash, a brick-and-mortar postal bank could provide a way to convert cash to digital dollars; for those who prefer Internet banking, the postal bank could provide that too.
Baradaran smartly acknowledges that like Walmart banking, postal banking would face significant political opposition (though she notes that, compared to Walmart, postal banking would have the advantage of generating more trust as a public entity, without Walmart’s profit-focused reputation of underpricing and then raising prices). Baradaran recounts not just the success of postal banks in the U.S. (which closed when community banks paying higher interest rates came onto the scene), but also their relative and variable success in other countries like Japan, Germany, the UK, France, and Brazil. One can appreciate why the policy world has come to Baradaran for her expertise, and this book will constitute a central contribution to the debate.
My one major quibble with this book is that it does not acknowledge the racial dimension of the problems of the unbanked. Though Baradaran discusses the history of the Freedman’s Bank and talks about racial discrimination in banking, she does not acknowledge that payday lending and check cashing establishments are four times more likely to locate in minority neighborhoods, even controlling for income, and that a disproportionate share of borrowers are people of color. The structural problem of the unbanked involves the country’s racial history more than she acknowledges.
Even so, I will recommend this book to all who are interested in structural racism. Without explicitly recognizing it, Baradaran demonstrates how the the post-deregulation restructuring of banking has disproportionately impacted communities of color, and how postal banking and other public options might bring them back into the fold once more. Baradaran’s revival of postal banking, and her description of the disappearance of services in the wake of deregulation, is fresh and engaging, and I highly recommend both the law review forum essay and book for all who are interested in the structure of inequality.
Sep 7, 2015 Brian Tamanaha
Law is filled with legal fictions, roughly defined as statements known to be false but treated as true by legal actors to achieve a purpose. No one is deceived by legal fictions, and the consequences of the fiction are generally recognized. The early common law was filled with fictions, often utilized to satisfy pleading or jurisdictional requirements. Well-known examples are fictional statements about lease and ejectment necessary for the action of ejectment, and statements about goods lost and found necessary for trover. Perhaps the most infamous example is Mostyn v. Fabrigas (1773), when Lord Mansfield concluded that Minorca was in London for the purposes of obtaining jurisdiction in the case. By the nineteenth century, after Bentham’s caustic attacks on legal fictions, their prevalence in law had come to be an embarrassment. An American jurist critically remarked in 1841, “All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehoods and lies.” In Ancient Law (1861), Sir Henry Maine acknowledged fictions serve the useful purpose of facilitating change in the law, but he considered them a discredit to modern legal systems. Yet, a century and a half later, fictions still continue to exist in law.
Maksymilian Del Mar and William Twining have produced a superb collection of 19 essays on legal fictions. The book begins with a splash, publishing a first-time English translation of Hans Kelsen’s 1919 response to Vaihinger’s influential book on fictions. In consistently high quality essays, subsequent chapters take up a broad range of issues. About half of the chapters involve theoretical explorations that focus on what fictions are, how they should be defined, what purposes or functions they serve, why they exist, what their implications are for law and language, how influential theorists have considered them (particularly Fuller, Bentham, and Vaihinger), and various other issues. Another set of chapters are oriented toward specific contexts of legal fictions, including the early common law, ejectment actions, Roman law, exclusionary rules, copyright law, tort law, Rabbinic law, securities law, and criminal law.
A collection this varied could easily have lacked coherence. This risk was heightened because contributors were free to define legal fictions in any way they desired. While nearly all jurists would agree that the above mentioned examples are legal fictions, other identifications are debatable. Kelsen identified the “legal subject” or “legal person” as a fiction because it has no real object but involves the personification of a complex of norms; but since there is no falsehood, it might be considered a legal construction rather than a fiction. The classical assertion that common law judges do not make law but merely declare it was tagged a fiction, though it is perhaps more aptly described as an idealization or myth. The treatment of corporations as legal persons is mentioned as a fiction by several contributors, though one might question whether this is a knowing falsehood rather than a legally designated status. Certain legal presumptions were discussed as fictions or as based on fictions, while other contributors sharply distinguished presumptions from fictions. One contributor identified the “reasonable person” test in negligence as a fiction, and another contributor labeled the assumption within contract law of the equality of the contracting parties a fiction. As the notion of legal fiction expands, they appear everywhere in law, and the label begins to lose its analytical purchase.
Despite these potential problems, the collection holds together very well and the overall result is a rich and sophisticated exploration of the topic. The contributors shared a substantial overlap in their basic understanding, so differences in what they construed as legal fictions were useful and thought-provoking. Del Mar’s introductory essay helps hold the collection together by elaborating examples of legal fictions, the types of jobs they do, the different definitions utilized, and various ways fictions are evaluated by contributors.
A few points of general agreement can be found across the essays (albeit not explicit in all). One common sentiment is that, though legal fictions might have a negative connotation as a form of deception, they have important functional benefits, particularly in facilitating legal change and in producing just or equitable outcomes. Another notion apparent in a number of the essays is that law is an artificial system distinct from the social world, possessing its own conceptual apparatuses and technical language, dictates of formality, rationality, and coherence, and modes of operation—and legal fictions arise at various points of contact to manage potential disjunctions between the legal system and society. Viewed in these terms, legal fictions are not truly falsehoods because they are not genuinely proffered by legal actors as assertions of fact (even when they take that form), and within law they are true in so far as they have legal consequences.
What also comes through the essays is the implicit sense that legal fictions are likely to remain a part of law. Valid laws sometimes become obsolete, social values change, and general rules are over-and under-inclusive (applying to situations they should not, and failing to apply to situations they should). The demands of legal formality if always strictly adhered to under these circumstances would prove socially dysfunctional. To effectuate legal change or to achieve justice in a case, a judge can openly declare the existing legal rule will be set aside for compelling reasons—and judges sometimes do that. But this goes against the rule of law ideology, and is particularly problematic in connection with statutes. Thus, judges resort to legal fictions. A strong case can be made that to work properly a system of formal legality needs legal fictions, even if they are not officially embraced.
While the central focus in the collection is on fictions in law, fictions also play a prominent role in legal theory. Hans Kelsen’s Grundnorm is a fiction. Hercules is Ronald Dworkin’s fictional super judge. (P. 37.) Though none of the contributors mentioned it, Joseph Raz’s assertion that law claims moral authority is based on a fictional personification of law (whether Raz recognizes this is a fiction is an open question). As is the case with law generally, fictions are used in legal theory to provide or impose coherence, uniformity, or systematicity that is otherwise lacking.
There is much to be learned from thinking about legal fictions, and this collection goes a long way toward plumbing these insights.
Jul 21, 2015 Barbara Levenbook
In “hard” appellate cases, legal disputants sometimes offer moral considerations. Legal experts seem to back up claims about what the law is on a particular point with moral argumentation (whether or not explicitly posited legal material, such as a statute or a written constitutional provision, mentions moral considerations, one might add). One antipositivist argument credits the disputants with choosing epistemic arguments that reflect metaphysical truths, and concludes that the law depends at least in part on moral facts.
A familiar legal positivist response is that appearances are deceiving. The disputants are supporting a claim about what the law should be by moral argumentation, because the law at this point is indeterminate. Yet that’s not what many disputants would say, as their use the language of discovery suggests. To borrow an idea from Leiter, the positivist either concludes that the disputants are disingenuous (perhaps because the conventions of legal argumentation require them to appear to argue only about antecedent law) or that legal practitioners, legal scholars, and legal officials misunderstand what they are doing when they rely on moral argumentation. But how can so many experts be so mistaken? That’s what Plunkett and Sundell explain, and they do so plausibly, without denigrating the knowledge, honesty, or intelligence of the expert practitioners.
The authors do not challenge the appropriateness of moral language in a legal dispute. They challenge the assumption that the moral language is used to make a claim about a moral fact, and the assumption that the dispute is about what the law (antecedently) is. Both assumptions are incorrect, say Plunkett and Sundell; and thus, one cannot conclude that moral facts establish the law from the mere fact that moral language is used in legal disputes in hard cases.
Instead, moral language is used to make a proposal about what a moral term should mean in the context, where its meaning in this context and for these (legal) purposes is underdetermined. That is, a moral word or phrase is used metalinguistically. The proposal is communicated, not by the literal content of the language used, but by the pragmatic content. (For more on what the authors call “metalinguistic negotiations,” see the December 10, 2014 Jot by Connie Rosati.) The authors offer no examples of legal cases fitting this description, though they give examples of legal issues turning on determining what a (nonmoral) term means. Perhaps “fundamental fairness” (involved in Gideon v. Wainwright) would do.
Why do the disputants think otherwise? First, disputants in a metalinguistic negotiation generally do not recognize when they are communicating pragmatically, since they don’t usually have intuitions subtle enough to distinguish between literal and pragmatic ways of communicating. When the legal question seems to hinge on the way an expression (“use as a weapon,” “fundamental fairness”) is applied to the facts of a case, the disputants will think they are arguing over some first-level matter—e.g., whether the defendant’s action with the weapon was a use, whether fundamental fairness is violated by the absence of counsel for a defendant in a criminal action.
Disputants are instead arguing in the second case about whether the absence of counsel should be held to violate fundamental fairness (and so, due process, and so, the U.S. Constitution). Ordinarily, the reasons pertinent to that dispute are pertinent to the issue of what the expression “fundamental fairness” should mean in this context. This is the second reason. At this point, the difference between the projects becomes uninteresting to the participants. They are correctly aware that they are arguing about a constitutional right to counsel, but the difference between applying a determinate “fundamental fairness” and precisifying an indeterminate “fundamental fairness” doesn’t matter to them.
If a legal question turns on the application of some expression and that expression is indeterminate at a point, the legal positivist can claim the law is indeterminate. So the disputants’ debate isn’t, then, about what the law antecedently is, but what the law should be (on that point).
This account nicely explains why sometimes when the disputants are using moral language in a hard case, they erroneously think they are arguing about moral facts and what the law is. Unfortunately, the authors fail to address all the kinds of cases the antipositivist offers. The account nicely fits cases that the disputants agree turn on the application of a term (from statute, constitutional provision or something canonical in the common law) that is a moral term or whose application ordinarily requires moral reasoning (“unreasonable risk of harm”). But what shall the positivist say when this isn’t true and there is moral argumentation in a judge’s opinion—e.g., in Riggs v. Palmer? When only one of the disputants turns to moral language, the dispute doesn’t seem to be about determining an indeterminate moral expression. Perhaps the authors would call this, as they did in their article mentioned above, a “bedrock legal dispute,” and contend that the metalinguistic dispute is over the phrase “the law.” I’m not persuaded by that move, since there aren’t always explicit claims about “the law” in these conflicting judicial opinions.
To be fair, Plunkett and Sundell disavow the claim that all disputes in hard cases involve metalinguistic negotiations. Nonetheless, one can take from the authors’ general approach the idea of negotiation pragmatically expressed and say that in hard cases in which only some disputants use moral language there are (frequently?) negotiations pragmatically expressed about the identity, extent, and importance of concepts to fit settled law, where the answer has been hitherto indeterminate. This claim could be generalized to other hard cases not invoking moral language. The merits of an expanded approach are well worth investigating by those working on the nature of law and legal disagreement.
Cite as: Barbara Levenbook,
Moral Argument in Legal Disputes: Why So Many Are Mistaken, JOTWELL
(July 21, 2015) (reviewing David Plunkett and Tim Sundell,
Antipositivist Arguments from Legal Thought and Talk: the Metalinguistic Response,
in Pragmatism, Law, and Language, 56 (edited by Graham Hubbs and Douglas Lind, 2014)),
https://juris.jotwell.com/moral-argument-in-legal-disputes-why-so-many-are-mistaken/.
Jun 19, 2015 W.A. Edmundson
“Money is the mother’s milk of politics,” said California pol Jesse Unruh, way back in the 1960s. Benjamin Franklin, in the 1790s, could not have said it more memorably; but wouldn’t it shock us if it had been Franklin, and not Unruh (or Karl Marx) who first said it? The certainty of death and taxes is a hard lesson, but it doesn’t prepare us for the bitter thought that politics is helpless before the power of money.
Students of American democracy have divided on the point. Martin Gilens and Benjamin I. Page assign the principal theories of American politics to four schools: Majoritarian Electoral Democracy, Economic-elite Domination, Majoritarian Pluralism, and Biased Pluralism. Majoritarian Electoral Democracy holds that policy outcomes are determined largely by the views of average citizens. Economic-elite Domination holds that policy outcomes are largely determined by the views of the wealthiest citizens. The two other types of theory focus not on individual voters, but on interest groups. Majoritarian pluralism is the view that policy outcomes are mainly responsive to pressures from mass-based interest groups. Biased pluralism maintains that pressure from business-orientated interest groups is what mainly determines state policy.
Each of these types makes a prediction, and thus is empirically testable, so Gilens and Page posed the natural question: how do they compare as predictive theories of policy outcomes? This is a question that is much easier to formulate than it is to answer. No attempt had ever been made to answer it within a unified statistical framework. So, Gilens and Page and their assistants assembled “a unique data set that includes measures of the key variables for 1,779 policy issues” (P. 564), and performed a series of multivariate analyses. “Who governs? Who really rules?”—the authors report finding that
economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass- based interest groups have little or no independent influence. The results provide substantial support for theories of Economic-Elite Domination and for theories of Biased Pluralism, but not for theories of Majoritarian Electoral Democracy or Majoritarian Pluralism. (P. 564.)
The authors are careful to point out that elite opinion and mass opinion often coincide, and that it could look as if the average citizen is getting her way anyway. But their analysis, they say, shows that to think so would be to mistake “democracy by coincidence” (P. 573) for the real deal. In fact, “the issues about which economic elites and ordinary citizens disagree reflect important matters, including many aspects of trade restrictions, tax policy, corporate regulation, abortion, and school prayer, so that the resulting political losses by ordinary citizens are not trivial.” (P. 573.) We might comfort ourselves by the thought that, as to abortion and school prayer, it might be better if the elites made the call. But that is small comfort if Gilens and Page have indeed discovered that
reality is best captured by mixed theories in which both individual economic elites and organized interest groups (including corporations, largely owned and controlled by wealthy elites) play a substantial part in affecting public policy, but the general public has little or no independent influence. (P. 572.)
Their findings are even more troubling insofar as they merely depict the “first face” of politics, that is, outcomes of overt policy contests. They can only hint at the configuration of the “second face” of political power, i.e., governmental agenda setting; and the “third face,” the shaping of public opinion and preference (P. 576.)
So what? Gilens and Page admit that “Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if still contested) franchise.” (P. 577.) These political and civil liberties are formally equal, at least in large part. But Gilens and Page confirm that what philosopher John Rawls called the “fair value of the political liberties”—a roughly equal chance had by rich and poor alike to affect political outcomes—is demonstrably absent in the United States. As Anatole France wrote, both the rich and the poor are equally forbidden (or permitted, as the case may be) to sleep under bridges. But justice requires more than this. As to the specifically political liberties, merely formal equality is not enough—or so Rawls believed.
Insisting on the fair value of political liberty has consequences. The type of regime Rawls called “welfare state capitalism” guarantees formally equal political liberty but is insouciant about its fair value, and for this reason alone (though there are others) he concluded that a regime of this type cannot realize justice. Some political philosophers have recently contested Rawls’s assumption that the wealthy invariably tend to dominate politics. It cannot, they say, be assumed as a matter of common sense, or as a settled finding of social science, that the wealthy—severally or in combination—have this advantage. That they do is unlikely, given collective action problems; and whether they do or do not is anyway a complicated empirical question, which means that Rawls was wrong to condemn welfare-state capitalism as inherently unjust. If there is a problem, they argue, it is not one that the legislative branch of a welfare-state capitalist regime cannot sort out. Such a regime might, for example, enact laws to insulate politics from money, if the worry about money in politics (beyond quid-pro-quo bribery) is not merely valetudinarian. Valetudinarian or not, the US Supreme Court insists that ensuring the fair value of political liberty is not even a permissible Congressional goal, much less a “constitutional essential.”
Gilens and Page’s paper has been described as “the Piketty of politics”—referring to Thomas Piketty’s Capital in the Twenty-First Century. This is apt, in that it focusses the discussion of inequality on its specifically political effects. Whether Gilens and Page, or the Piketty boom, will have a specifically political effect in the United States is a separate question. But the influence that Gilens and Page can be expected to have is inversely related to the correctness of their findings; and Rawls himself, I am sorry to note, has yet to be cited in any opinion of the Court, dissent, or concurrence. As Rawls wrote:
Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained . . . for when parties and elections are financed . . . by private contributions, the political forum is so constrained by the wishes of the dominant interests that the basic measures needed to establish just constitutional rule are seldom properly presented. (A Theory of Justice 198-99)
“Are seldom”—after the line of cases from Buckley v Valeo to McCutcheon—has turned into “shall never.”
Cite as: W.A. Edmundson,
Roll Over, De Tocqueville, JOTWELL
(June 19, 2015) (reviewing Martin Gilens and Benjamin I. Page,
Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12
Perspectives on Politics 564 (2014)),
https://juris.jotwell.com/roll-over-de-tocqueville/.
May 19, 2015 Dennis Patterson
The relationship between the mind and the brain is a topic of immense philosophical, scientific, and popular interest. The diverse but interacting powers, abilities, and capacities that we associate with the mind and mental life both link humans with other animals and constitute what make us uniquely human. These powers, abilities, and capacities include perception, sensation, knowledge, memory, belief, imagination, emotion, mood, appetite, intention, and action. The brain, in interaction with other aspects of the nervous system and the rest of the human body, makes these possible.
Obviously, the relationship between the mind and the brain is enormously complicated. It is one thing to say that the mind (or some particular aspect of mental life, for example, pain) “depends on” (contract supervenience—the idea of no change in mental state without underlying change in physical (i.e., brain) state) the brain and another to say that the mind (or a particular aspect of it) just is the brain, or can be “reduced” to the brain (in the sense that it can be explained or explained away). Whether it can or cannot will depend on a number of empirical and conceptual issues.
The empirical issues concern the evidential base and the adequacy of the scientific explanations for the phenomena that we associate with the mind and the sensory, affective, cognitive, and cogitative categories that comprise our mental lives. The empirical issues on the relationship of mind and brain have been aided by an explosion of work in cognitive neuroscience over the past couple of decades, itself aided by an explosion of technology providing detailed information about brain structure and process (most importantly, types of brain imaging).
A good example of the importance of the conceptual/empirical distinction is found in the context of fMRI lie detection. The problem is one of under- and over-inclusion. fMRI studies may be under-inclusive if they are measuring “intent to deceive” rather than lying because some lies do not involve any intent to deceive. More importantly, however, the studies may be over-inclusive in that they count as “lies” acts by subjects that are not in fact acts of lying. If so, then this undermines attempts to draw inferences from neural data about the test subjects to whether actual witnesses are engaged in acts of actual lying.
Here is the problem. Not every utterance that a speaker believes to be false is a lie. For example, when a speaker is telling a joke or reciting a line in a play a false assertion is not a lie. As Don Fallis notes in an insightful article, the difference that makes “I am the Prince of Denmark,” a lie when told at a dinner party but not a lie when told on stage at a play are the norms of conversation in effect. Fallis explores the conceptual contours of lying through numerous examples and presents the following schematic definition:
You lie to X if and only if:
- You state that p to X.
- You believe that you make this statement in a context where the following norm of conversation is in effect:
Do not make statements that you believe to be false. - You believe that p is false.
This definition “capture[s] the normative component of assertion that is necessary for lying.”
The fMRI studies do not fit. The subjects in the studies are instructed to assert false statements on certain occasions, sometimes with an intent to deceive an audience; however, their false statements are not acts of lying. Even when subjects commit or plan mock “crimes,” they are not in a situation where the following norm is in effect: do not make statements that you believe to be false. Indeed, they are instructed to do precisely that. Thus, the acts being measured, even when they involve deception, appear to be closer to actions of someone playing a game, joking, or role-playing. If this is so, then the relationship between the neural activity of these subjects and acts of lying is not clear. In the legal context, this norm—do not make statements that you believe to be false—is in place, as the perjury and false-statements crimes make clear. The practical significance to this conceptual issue is obvious: to draw conclusions about whether someone is actually lying based on the fact that his neural activity resembles subjects who are not lying (but mistakenly thought to be) could be a disaster. To draw conclusions about whether someone is actually lying in a legal context, the underlying studies must examine actual lying or at least provide compelling reasons why the results from non-lies should inform judgments about lying.
All of the issues mentioned above come together in the interface between neuroscience and law, which has become a burgeoning field. The level of interest in questions such as the use of fMRI technology in courts, the possibility of lie detection, the role of the brain in memory, cognitive enhancement, and free will are all issues that legal scholars have taken a deep and abiding interest in. Owing to these interests, the collection under review will be of immense value to scholars working in this emerging and exciting subfield.
This three-volume set should be consulted by anyone working in law and neuroscience. An entire section of the book (in V. 3) is devoted to “Neurolaw.” But many other parts of this treatise will be of interest to lawyers working in the field. Neuroenhancement—using drugs and technologies to enhance human cognitive skills—is a very hot topic at the moment. The same can be said of free will, ethics of brain imaging, and neuromarketing, just to name a few of the topics treated in this collection. Articles are by many well-known authors in the field. The editors and the publisher have put together an indispensable collection that will be of interest to all scholars working on the law and neuroscience interface.
Apr 24, 2015 Brian Bix
Roger Cotterrell,
Why Jurisprudence Is Not Legal Philosophy, 5
Jurisprudence 41 (2014), available at
SSRN.
Most people who use the terms at all treat “jurisprudence” and “legal philosophy” as interchangeable terms. In “Why Jurisprudence is Not Legal Philosophy,” Roger Cotterrell argues for a distinct meaning for the two terms, and for a greater emphasis on jurisprudence, in comparison to what he perceives as undue current attention to and an unduly high valuation of legal philosophy.
For Cotterrell, legal philosophy is the application to law, usually at a high level of abstraction, of ideas from philosophy, sociology, economics, or other disciplines in the humanities or social sciences. His particular concern is that much of what goes on under “legal philosophy” today—in particular, under what he calls “contemporary legal positivism”—inclines towards questions about what is true “essentially” or “necessarily” of all legal systems (or legal systems “in all possible worlds,” he might have added). These kinds of inquiries might be the sort of thing that is of interest to professional philosophers, Cotterrell maintains, but they are of little interest—and little use—to practicing lawyers.
In contract to “legal philosophy,” Cotterrell describes jurisprudence as “an important body of thought about law that aims at exploring, aiding and developing the prudentia of jurists.” (P. 42.) What is “prudentia”? Cotterrell points to a cluster of meanings around “acquaintance, knowledge, sagacity, prudence, discretion, and foresight.” (P. 42) Jurisprudence, thus understood, is meant to be of practical use to the practice of law, rather than a timeless search for law’s “essence” or “nature.” And where is one to gain the relevant insights? Cotterrell reports favorably on the idea of “bricolage jurisprudence” (PP. 43, 53), “collect[ing] magpie-like, insights from anywhere they can be found.” (P. 53.) While Cotterrell does not note this, such broad borrowing from a variety of approaches and disciplines has been true now for some decades in how law is taught and legal textbooks written, at least in the United States.
Cotterrell argues for a kind of theorizing that is “bottom up” rather than “top down,” focused on the particular practices and institutions of a single legal system, rather than trying to determine what is true universally. For example, Cotterrell would prefer that we not focus on the general question of whether there is a moral obligation to obey the law, but rather on more specific questions regarding what we would need to do in this society and to this legal system to attract a sense of obligation. There are questions specific to our legal system, our legal profession, our practices, today, here that are best confronted at this local level, to consider what we can do to make matters better. The focus on the particular echoes movements in other disciplines: e.g. experimental and behavioral approaches in economics, moral particularism in moral philosophy, and contextualism in philosophy of language.
Cotterrell singles out Karl Llewellyn and Lon Fuller as theorists whose work was grounded in the legal practices of their community, focused in particular “on law as a practice and, indeed, a craft.” (P. 54.) Cotterrell would likely note the irony that these are theorists whose reputation among “legal philosophers” is shaky—as many traditional legal philosophers would be too quick to mark off points for lack of rigor in their theories, while giving no extra credit for those theorists’ practical prescriptions for practitioners and law-makers.
While Cotterrell is (in my view—though admittedly I am biased here) too dismissive and contemptuous of much of the theorizing that is goes on under (what he labels) “legal philosophy,” he gives a strong argument for giving more attention to the more local and practical concerns of what he calls “jurisprudence.” And as indicated above, there may yet be some common ground between Cotterrell’s localized “jurisprudence” and comparably contextualized approaches in some other disciplines (from which “legal philosophy” often borrows).
Mar 27, 2015 Sean Coyle
In a letter to the semi-pagan Nectarius (Epistle 91, §4), Saint Augustine sets forth one of the most fundamental problems of political life: political philosophers who have sought and ‘indeed described’ justice in private discussion have utterly failed to secure justice for the earthly city. The problem could not be clearer: true justice is not an utter mystery to human beings. It can be made present to thought and speech. But even amongst those who have bothered to obtain a rational image of it, this justice is absent from their activities and their communities. Justice in the earthly community is only ever a relative and internal justice, an ‘ordered agreement of mind with mind’ (De Citivate Dei XIX.13) that is limited to ‘the establishment of a kind of compromise between human wills…’ (IV.4) Even the laws of the most civilised society of Augustine’s time (Rome) represented but the distorted form of justice one finds in a criminal organisation.
The subject of justice in the earthly civitas (i.e. the human world) is examined at length in Frank Garcia’s impressive book, under the modern title of ‘global justice.’ The scope of the book is determined by two factors: (1) it is concerned with the specific dimension of global justice which applies to international economic activity; (2) it analyses the subject according to ‘three takes’ which have dominated recent Western political thought (Rawlsian liberalism, communitarianism, and consent theory) (P. 3.) My focus here is upon the second of these delimiting factors. It is given the following explanation:
There are of course many more theories of justice within Western political theory, and a comprehensive approach to the ethical foundations of global justice would need to engage in a comparative study of justice in normative traditions both within and beyond the West.
Of interest in this passage is its juxtaposition of two critical ideas: on the one hand, the identification of global justice as being, in the last end, an ethical problem; and on the other hand, the belief that the resolution of the ethical problem would come about through a comparative (i.e. empirical) investigation of normative traditions. The underlying implication is (I believe) not that ethical questions can be dissolved by, or exposed as, empirical concerns, but that some form of comparative study represents the realistic limit of what can be achieved by way of progress in the face of so much entrenched division. If so, this reflects the more pessimistic implication of Augustine’s letter: justice in the worldly community is not genuine justice but is forever limited to a kind of compromise between human wills.
Glimpses of this pessimistic conclusion can be found throughout the book, particularly in its introductory pages. The ‘three takes’ have been selected, for example, due to their importance to the way global justice ‘has been theorised’ and ‘applied’ in international economic law (P. 4.) The third, in particular, is included as something which ‘lies closer to our lived experience of trade’ and begins by contemplating ‘the ways in which both language and law recognise that theft, coercion, exploitation, and trade are not the same thing…’ (P. 9: the accompanying footnote makes clear that the reference to ‘law’ here denotes positive law). Here we might begin to suspect that the book’s method is dictated not only by adherence to an Augustinian pessimism, but also a rejection of the more positive implication of Augustine’s message (that true justice may be ‘indeed described’). For the distinctions between trade, coercion, theft and exploitation are not mere legal or linguistic differences, but moral differences which the linguistic (and sometimes legal) distinctions aim to capture. A community’s linguistic distinctions, like its laws, reflect the speakers’ comprehension (and obviously, sometimes miscomprehension) of the deliverances of practical reason. A linguistic community which did not differentiate between, say, forced and free exchanges, would not be in possession of an ethical distinction; but it would be incorrect to say that the ethical difference was dependent upon the development of local terms for ‘coercion’ and ‘consent’: see e.g. Aquinas’s distinction in Summa Theologiae I-II.94.2c between what is self-evident in itself, and self-evident to us.
Methodological detachment (the substitution of empirical for ethical investigation) may represent agnosticism about the practical possibility of resolving ethical problems; but the methodological constraints thus imposed can encourage a deeper moral scepticism, as detectable in this passage, a few paragraphs on: ‘… what emerges from the comparison is that there isn’t (and perhaps can’t be) a single path or approach to justice on a global scale in a globalising world. This is so because of the persistent reality of pluralism, central to globalisation and therefore to global justice’. (P. 10, my emphasis). The ‘global’ of ‘global justice’ is thus synonymous with ‘pragmatically agreeable by all’ rather than ‘universally recognised as true’.
What of the second term in that phrase, the ‘justice’ of ‘global justice’? Here the book prescinds from agnosticism and doubt, but directly considers ‘the nature of justice itself.’ (P. 12.) Justice is ‘a relationship between a set of core political and social [cf. moral] values about the distribution of benefits and burdens, and the outcomes of social processes.’ (Id). The context here ascribed to justice (political, social) invites the conclusion that it is some form of social construction, arising and existing in a domain concerned with practical possibilities and ideals, power and agreement: a conclusion reinforced by the reference to the ambiguous word ‘value.’ (Are ‘political and social values’ those things which are valuable for a community, or those that are valued by a community?) Likewise, the qualification that justice is one of a community’s ‘core’ values might be taken to suggest that some political (social!) questions inevitably stand in need of answers, however they are resolved in substance; or maybe it is simply that justice is, prevalently, ‘valued’ as a ‘core’ element of a community’s political and social character.
The author’s position is revealed a few lines further on. Social outcomes (such as decisions of a court) can be evaluated in all kinds of ways, for example in terms of their efficiency, but justice evaluates them ‘in terms of their consistency with the values of those affected by them.’ (P. 12, my emphasis.) The question of justice is ‘whether affected people will judge a particular institutional outcome consistent with core values about proper distributions.’ (PP. 12-13, my emphasis.) Hence, in questions of ‘global justice’ it is necessary to ask:
But whose core principles, and which ones? Put another way, is global justice possible, and is the very idea of it coherent? (PP. 13-14.)
This, Professor Garcia says, is a question for philosophers and theorists; the practical question (on which the book focuses) is how to ‘establish a truly global basis for global justice’. (P.14.) But here the book has exceeded its methodological constraints: one asks the practical question only because one believes that the ‘discourse’ between plural ideas is one in which nothing can be definitively established on the basis of sound reason, but only by agreement. Where Augustine laments the imperfect reasoning of ‘those affected,’ contrasting this with the proper understanding of justice that it is possible to obtain through sound reasoning, the book’s practical concern suggests that global justice is established on a ‘global’ (i.e. agreed, negotiated) basis: in other words, a political and not an ethical basis. Divided interests obviously erode the possibility of global agreement (as Augustine well understood), but the book’s concern is with ‘the normative implications that follow from such pluralities.’ (P. 14, my emphasis). The book’s hope is less than Augustine’s: though its aim is global justice and not some phantom of justice, it seeks for true justice on the plane of ‘compromise between human wills’ (De Civitate Dei, XIX.17) without elevating its gaze toward the truly right and ethically reasonable.
The three main chapters of the book develop possible ways of conceiving the problem of global justice. Each can be regarded as proposing a different way of characterising the relationships between states:
1. Integrity-based
Integrity is here understood not, as in Dworkin’s usage, as an interpretative principle (the reconciliation of present decisions of principle with past practice as well as moral soundness), but as ‘a way of characterising the locus or source of one’s moral obligation’. (P. 120.) Here, a suitably revised conception of ‘Justice as Fairness’ represents an integrity-based approach to global justice because ‘it links a liberal state’s foreign policy back toward that state’s own normative commitments.’ (P. 121.) Political leaders in the White House may well disagree with those in Tehran or Beijing about the nature of obligations of justice; but for any of these states to act with justice in the face of such disagreement, it is necessary only that each acts in a way that is true to its own traditional principles of justice, soberly and honestly conceived. This allows for the maintenance of trade relationships between states separated by ideological differences. Calling upon Rawls’s distinction between non-liberal and ‘outlaw’ states, the integrity conception enables liberal states to trade with non-liberal states even when they are ‘pursuing the most destructive policies.’ (P. 27).
As Professor Garcia concedes, this is not really a ‘take’ on global justice, but of justice understood in transnational contexts. It has nothing substantive to say regarding distributive justice, or any other difficult question concerning the demands of justice, and it proposes no doctrine concerning the status or operation of international institutions. To these observations let me add two more: (1) it relies upon the idea that the principles of Justice as Fairness are indeed a faithful representation of the traditional political and social values of liberal states (states as ideologically distinct as the United States and France, for example); but is not this suggestion just as much an ‘imposition’ on liberal peoples who disagree about the very meaning of liberalism? (2) it moves from the pragmatic methodological premise that one may profitably focus on the justice of trade relationships whilst holding other concerns of justice in abeyance, to the substantive (and false) premise that obligations of justice in trade do not intrinsically belong to (i.e. are severable from) a comprehensive enquiry into just actions: that it is possible to trade (justly) with states which have committed terrible human rights atrocities, so long as one is true to one’s own principles of fairness in dealing.)
2. Relation-based
Here, justice is not considered to be a matter of acting consistently with one’s own principles, but of commitments and responsibilities which arise from one person’s (or organisation’s) relationship with another. In the context of international trade, developments in law and state practice are giving rise to new forms of inter-state relationship, and introducing (through ‘shared commitments and understandings’) incipient forms of ‘global community.’ (PP. 34-35.) This approach suggests that the increasing closeness and complexity of relationships between states creates shared understandings, including shared notions of justice. The starting point for this suggestion is that ‘justice requires … community’ (P. 146); but the substance of the idea is perhaps expressible as the claim that community requires justice (if it is to avoid collapsing into hostility and anarchy). Unlike the first approach, this relational idea provides a basis for ‘global justice’ in the proper sense. But notice also that (like the first), the resultant norms of justice are not ‘imposed’ but come from state practice; and in that context it seems relatively unimportant whether the ‘model’ of international relationships is one conceived through the lens of social contract(s), or through that of communitarian philosophy (where nevertheless ‘justice is determined by the members’ shared understandings, not coercive of them—otherwise, justice would be tyranny.’) (P. 147.)
Here it seems to me that there are two questions worth raising. (1) Given the book’s insistence on respect for cultural differences, can ‘globalisation’ be considered somehow free-floating and exempt from that same requirement? If not, then the book’s optimism (which reflects Rawls’s optimism) must itself be questioned. Would developing nations regard ‘globalisation’ as a positive force, increasing the prospects for justice over the world, or as the strengthening of political, economic and ideological ties between a relatively small club of North American and Western European nations in whose hands, for the most part, lie the sorts of technological advances that have eliminated ‘time’ and ‘distance’ from foreign affairs? (2) What role is played by ‘shared understandings’? In the sentence-fragment quoted above, justice is determined by shared understandings, and cannot be coercive of them unless justice is to collapse into tyranny. The emphasis here falls on ‘shared’ rather than on ‘understandings’: an ‘understanding’ (of justice) that is not ‘shared’ would in fact be tyranny and not justice at all. Furthermore, ‘shared understandings are not only necessary for us to know what justice is, they are necessary to make justice work.’ (P. 147; see also PP. 149-50: it is necessary to examine to what extent the understandings are ‘actually shared’). More emphatically:
Finding out what justice consists of requires a historical analysis of a society’s shared life, not an a priori argument or a rational reconstruction of their beliefs. (P. 146.)
But such an enquiry could only tell us what certain people asserted, held or believed about justice; it could reveal nothing about justice itself. Nor would such a history of ideas amount to an account of a community’s ‘shared’ conception of justice, for the members of a community do not ordinarily hold beliefs about justice ‘as positive’, but rather as true. The explanation or defence of belief must proceed from what is understood, not from what is shared. To be sure, the detailed elaboration of the demands of justice will involve a process Aquinas calls determinatio: a process of working out the detailed content of operative laws with the same creative freedom that an architect works out the detailed design of a house (Summa Theologiae I-II.95.2c & 99.3 ad 2; 104.1c; II-II.57.2 & 77.2 ad 2; IV Sent 15.3.2.). But potential divergences in practice between states that may result from this freedom are not so great that they allow fundamental disagreement about human goods (such as peace). There are not in fact infinitely diverse conceptions of human good or of what counts as a flourishing human life, and practices which are inconsistent with the human good (i.e. which prioritise the good of one people over that of another) cannot be justified by reference to the weight of traditional conceptions.
3. Transaction-based
What is at stake here, according to Professor Garcia, is consent: it is the consensual characteristic of trade relationships which distinguishes trade (as a mode of economic exchange) from theft, coercion, exploitation, etc. (P. 42.) By focusing on the dynamics of consent, it becomes possible to distinguish genuine trade from arrangements which outwardly resemble it, but contain elements of an exploitative or predatory nature. Much of the analysis of the third chapter is devoted the differences between legitimate and illegitimate forms of trade. The analysis will be of tremendous importance to those working in the area of international trade law, as well as international politics more generally. The key passage for present purposes however is this one, on the social costs of unjust action:
My concern [over the distinction between trade and non-trade] has nothing to do with moral principles but simply reflects an attempt correctly to evaluate our collective economic self-interest. Insofar as we make consensual bargains and not other kinds of exchanges, we preserve and enhance the opportunity to engage in future beneficial consensual bargains, and we reduce the social costs of overreaching. On the other hand, to the degree we engage in predation, coercion or exploitation, we may lose potential partners for future beneficial transactions, and we certainly increase the social costs of making and enforcing such bargains. (P. 238.)
Take three is therefore probably best understood as promoting a kind of social Darwinism: norms of global justice represent the fittest (i.e. most fitting/appropriate) arrangements for international relations, and it is therefore to be assumed that a process of adaptive selection will ultimately motivate states to accept or enact such norms as the basis of their dealings. It is an explanation very close in spirit to Hart’s account of why the (positive) law of virtually all human societies reflects the promotion of certain traits (‘truisms’) deemed to be of value by human beings. But a Darwinist account is a descriptive theory, even if concerned with the ‘internal’ attitudes of participants, when what is needed is a practical one: for the issue is not simply that human beings, or those associations of human beings known as ‘states,’ ‘peoples,’ ‘multinational corporations’ and so on, regard certain sorts of relationship as beneficial to them, and worth having more of. It is that human reason, operating practically (i.e. deliberating not about what is, but about what should or can be brought about through action), apprehends certain things (‘human goods’) as beneficial components of a flourishing life, and elects to pursue them. Among these goods are the goods of peace and justice between nations. It is therefore reasonable for states to act in ways which foster, maintain or even extend these goods, ‘creating conditions’ for their appearance or persistence; and it is unreasonable for states to act in ways which sabotage or impede them.
The point about this practical explanation is that justice appears in it as an end, worth having for its own sake, and not simply as an adjunct or instrument for some further end (such as subsequent possibilities for trade). We glimpse the truth of this when we understand that the further opportunities that justice may enable us to pursue are precisely peaceful, just opportunities: the peace and justice being something valued more highly than the profit gained (for high profits can be gained through wars of domination). Global Justice indeed offers sound, concrete guidance to the practical reasoning of those engaged in international relations. This is a welcome contribution, but the carefulness and sensitivity of the book’s practical project must nonetheless resist transformation into a pragmatism to which international law is, perhaps, especially vulnerable.
This leads me to a conclusion quite distinct from that of the book. For Professor Garcia (who is after all writing in the specific context of international trade), the problem is that of elaborating an agreed vision of global justice. But it seems to me that the fundamental problem lies instead in the effort (diplomatic, economic, legal, military, etc) to oppose the demands of justice to the Machiavellian actions of states which care nothing for justice, except perhaps as further lip-service in the diplomatic game. This is as much the case in trade as in any other area of international relations (with which trade is, after all, inextricably linked). The profound importance of Global Justice lies in its articulation of strategies for the organisation of such efforts, and its clear drive to move justice from the realm of academic discussion into the concrete and problematic realities of earthly politics.
Mar 6, 2015 Edward Rubin
Jeremy Waldron,
Accountability: Fundamental to Democracy (April 2014), available at
SSRN.
Accountability is a term that gets bandied about a great deal these days, sometimes as a criticism of regulatory government (agencies are not accountable to the people), sometimes as a justification for federalism (when government is closer to the people it is more accountable). It is also a term that has been widely disparaged by scholars as vague, fanciful and under-theorized. In Accountability: Fundamental to Democracy, Jeremy Waldron remedies this situation. By carefully parsing various meanings of the term, focusing on the essential meaning, explaining its importance, and responding to the concerns it raises, Waldron has convincingly demonstrated the way that accountability is, as his title asserts, fundamental to democracy.
To focus the discussion, Waldron distinguishes between three different ways in which the term “accountability” is used in political discourse. The first is forensic accountability, where the actions of a person with some sort of power or authority are assessed by a supervisory entity according to an established norm. The second is consumer accountability, where the power-holder acknowledges the importance of considering the views of the people whom its actions affect. Third is agent accountability, where the power-holder has been appointed by a principal, must report its actions to the principal, and can be sanctioned or dismissed if those actions are deemed unacceptable. Judicial review, where a court determines whether a statute or executive action violates the standards established by the Constitution, is an example of forensic accountability. Calls for “client-centered” administration, which figured prominently in Al Gore’s “Reinventing Government” initiative when he was Vice President, are based on consumer accountability. These may be important from a juridical or management perspective, Waldron argues, but the third type—agency accountability—is the one that is fundamental to democracy.
The analysis of principal-agent relations was originally developed in private law, specifically business law, and Waldron, in making his argument, gets a good deal of philosophic mileage out of the term “business.” The theory of democracy is that government is conducted in the people’s name. Therefore, in colloquial language, government policy is their business. Thus, it is the duty of the agent, that is, the government officials who act on the people’s behalf, to report and explain their actions to their principal, the people. Part of the reason for doing so is to enable the people to exercise their authority to dismiss the agent if they are displeased with his performance. But one of Waldron’s most insightful points is that the officials’ obligation to report is an independent duty that follows from the basic definition of their role: “demanding that the agent indicate what he has been doing so far as the principal’s business is concerned and that he justify it to his principal . . . is part and parcel of agent-accountability, not just preliminary to sanctioning of the agent.”
This insight generates a number of important implications. To begin with, it enables Waldron to insist that a general, public understanding of governmental action is a basic goal of government itself, that it leads to an official’s duty to explain, rather than a citizen’s duty to understand. Thus, the people’s apparent naïveté or unconcern is no excuse for secrecy or obfuscation by officials. Waldron’s approach also enables him to avoid the abstract, fictitious character of discussions that invoke “the people”; as he points out, the duty to report is not owed simply to this formidable abstraction, but also to each citizen as an individual. Waldron further notes that the obligation to explain cuts across Burke’s distinction between the representative as conduit and the representative as trustee, thus integrating separate strands of democratic theory. Regardless of whether an elected official sees her role self as reflecting the views of her constituents or as using her own judgment once those constituents select her, she must nevertheless explain her actions to them. A further point is that the duty extends to all constituents, not only those who voted for her; there is no constituent to whom a representative is entitled to say: “This is none of your business.” Waldron does not discuss constitutional cases, but his article provides a particularly persuasive argument against the egregious decision in U.S. v. Richardson, 418 U.S. 166 (1974), where the Court held that, despite the constitutional provision that “a regular statement and account of the receipts and expenditures of all public money shall be published from time to time,” the CIA’s budget could be kept secret.
There are many other illuminating insights in this article that could be discussed, but the point I want to note in closing is the remarkable clarity and accessibility of its presentation. Waldron is a philosopher, and pays the usual attention to linguistic precision and detailed analysis that is typical of the field. But the writing is absolutely free of jargon and unexplained references to other scholars, to say nothing of conscious obfuscation that more than occasionally afflicts philosophic work. He shows the same commitment to his readers that he asks elected officials to show to their constituents—to lay one’s case before the relevant audience in complete and comprehensible language. As a result, even if one disagrees with him, one will learn a great deal from his article—which is one of many reasons why I like it lots.
Feb 20, 2015 Andrew Halpin
The Cambridge economist Ha-Joon Chang has contributed to a new series of Pelican Introductions a user’s guide to economics, with the novel objective of creating a class of “active economic citizens.” (PP. 457, 460.) His objective opposes the prevailing attitude that economics is a science that must be left to the experts. Throughout his book he seeks to debunk the presumed scientific status of economics. This then provides the platform for his mission statement: “If there is no one right answer in economics, then we cannot leave it to the experts alone. This means that every responsible citizen needs to learn some economics.” (P. 5.) Without wishing to challenge Chang’s grand ambition for the general citizenry, my concern here is to consider the book from the perspective of a subset of users of economics, lawyers and legal theorists. Incidentally, I shall also refer to a more specialist subset, economists themselves.
The book takes the form of a narrative encyclopaedia, readable but densely informative. One of Chang’s motivating concerns is that economic discussion should be grounded in hard facts, and these are plentifully provided—frequently upsetting cherished orthodoxies that have assumed an almost intuitive appeal. Notably, the facts are brought to bear against the belief that modern economic prosperity has depended upon free trade. Chang convincingly demonstrates that nothing could be further from the truth. (PP. 49, 60-61, 64-65, 71, 82, 94, 400, 402, 408-10, 430-31.) Yet the facts, for Chang, do not lead to an empirical standing for the discipline of economics. It is ineluctably swayed by political and moral considerations. (PP. 112, 164, 176, 438, 451-52.) The market itself is constrained or permitted in accordance with these factors. (PP. 312, 387, 393-96, 437, 452.)
Although the political affiliations of particular economic approaches are often identified by Chang, he does not adopt the position that economics is merely political, that economic analysis is an alternative way of writing a political manifesto. His book provides full access to the technicalities of economics, the subject matter it assesses, and the expertise it provides. If Chang is insistent on debunking the scientific status of economics, he is equally convinced of the exceptional value and importance of economics, favouring a pluralist approach to ensure that different techniques are available to address a variety of economic problems that are faced by individual countries and the world collectively.
Chang’s pluralism is illustrated most clearly by his survey of the nine schools of economics (Austrian, Behaviouralist, Classical, Developmentalist, Institutionalist, Keynesian, Marxist, Neoclassical, Schumpeterian), which culminates in a table setting out their assumptions and favoured policies. (PP. 166-69.) He advocates intellectual diversity and a cross-fertilization of ideas in employing this wealth of resources. (PP. 161-64, 453.)
One obvious value of this book for lawyers and legal theorists inclined (or otherwise) to draw upon economic insight in furthering their understanding of law is to ensure a broader appreciation of which economic insight attracts them and which economic insights they might be neglecting. To suggest the book as required reading would not overstate its value. Beyond this elementary value, the book serves to stimulate greater reflection on the basic relationship between law and economics. Having established the fundamental point that it is not a single relationship between law and economics, but rather a possible relationship between law and developmental economics or an alternative between law and neoclassical economics (to take only two possibilities from a variety that could be increased greatly if Chang’s pluralism is embraced, but is still numerous if confined to discrete schools), the further question poses itself as to what basis can be found for making (or evaluating) the choice.
One response to this quandary is to suggest that the competing economic approaches are to be tested by a common standard of increasing overall wealth: conflicts between them amount to a miscalculation on one side or the other. But anyone who has digested the contents of Chang’s book would find it difficult to make such a proposal and keep a straight face. However, if we follow Chang’s conviction that political and moral forces are at work in positing any particular conception of wealth (what counts as wealth, how it is to be pursued, and how it is to be distributed—PP. 91, 126-27, 215-16, 235-36, 274, 307, 318-19, 338-39, 446-47, 451-52, 459), this raises a deeper problem in looking at the relationship between law and economics, or, indeed, politics (and morality) and economics. The deeper issue is which way round the relationship should be understood.
If society’s values (political or moral) influence what counts as the overall wealth of that society, and hence determine which economic approach will advance that conception of wealth, then those values will hold a dominant position in their relationship with economics. And if law is regarded as a means of conveying and implementing those values, then the same point can be made about law’s relationship with economics.
The significance of contested values affecting an individual society’s determination of its own economic path is magnified when the wealth of nations is brought into view. One nation’s path to economic progress may be the means to another nation’s economic downfall. Chang illustrates this vividly in recounting the impact of the British industrial revolution on India. In the words of the Governor-General of the East India Company: “the bones of the cotton weavers are bleaching the plains of India.” (P. 56.)
One lingering apprehension from the uses of economics as portrayed by Chang is that, in the absence of a scientific status, economics is left with an instrumental role implementing, not merely essentially contested, but, essentially divisive agendas. However optimistic we may be about overcoming social and global divisions, it follows from Chang’s portrayal of their discipline that the primary users of economics, economists, require guidance from elsewhere.
