Dec 10, 2014 Connie Rosati
Ronald Dworkin famously claimed, in Law’s Empire, that law is an “interpretive concept.” Dworkin’s argument for this claim appealed to a certain type of legal disagreement, what he called “theoretical disagreement.” Theoretical disagreements, he maintained, are genuine disagreements in which parties share the same concept but differ in their application of the concept because they interpret shared practices differently.
David Plunkett and Timothy Sundell provide a close examination and illuminating critique of Dworkin’s argument for the claim that law is an interpretive concept in Dworkin’s Interpretivism and the Pragmatics of Legal Disputes. Their focus, however, is on Dworkin’s broader discussion of interpretive concepts in Justice for Hedgehogs (JFH) and his disagreement-based argument for intepretivism.
In Justice for Hedgehogs, Dworkin distinguishes interpretive concepts from “natural-kind concepts,” which pick out natural kinds, and “criterial concepts,” the meaning of which is given by defining criteria. Whether something satisfies a criterial concept, such as the concept book, is a matter of whether it meets the defining criteria; and disagreement, where a criterial concept is in play, concerns whether the defining criteria are met. The correct application of interpretive concepts, in contrast, is not a matter of applying defining criteria. They are concepts we share, not because we use the same criteria, but because we share social practices in which these concepts figure. (JFH 6.)
As in Law’s Empire, Dworkin offers a disagreement-based argument for interpretive concepts in Justice for Hedgehogs. Plunkett and Sundell argue that Dworkin’s disagreement-based argument for interpretivism fails; and they defend an alternative account of the kinds of disputes—legal and nonlegal—that interested Dworkin.
As Plunkett and Sundell summarize Dworkin’s disagreement-based argument, they begin with a distinction between two types of legal disputes about the law in a particular jurisdiction. In the first type, parties to the dispute agree about the conditions for being law in that jurisdiction but differ as to whether they are met. In the second type, the parties agree about the relevant empirical facts but disagree about what the law is. Plunkett and Sundell call the latter “bedrock legal disputes.” Dworkin argued, with respect to such disputes, that if we take the meaning of ‘law’ to be given by the rules legal actors follow in using the term, we would have to conclude that parties to a dispute mean different things and so do not genuinely disagree. But since they sometimes clearly are disagreeing, they must mean the same thing by ‘law,’ even though they are not following the same rules in applying the term. The content of the concept and its correct application therefore cannot be fixed by defining criteria. Instead, Dworkin contends, law is an interpretive concept, correct application of which is fixed “by the normative or evaluative facts that best justify” our legal practices. (P. 244.) This account of bedrock legal disputes allows parties to a dispute to share the same concept, while disagreeing about what the law is. Bedrock legal disputes are thus best understood as theoretical disagreements, disagreements in which parties share a concept, while disagreeing in their usage, hence, in their views about when to apply the term that expresses that concept.
As Plunkett and Sundell explain, in Justice for Hedgehogs, Dworkin expands his interpretivism to various legal, moral, and political concepts, such as freedom justice, and democracy, and even to some concepts that appear straightforwardly descriptive, such as book. What disputes employing these concepts have in common with bedrock legal disputes is that they are all disputes in which the parties disagree deeply, yet we are not inclined to conclude that they are merely talking past one another. Parties to such disputes persist, even when they become aware of all the relevant empirical facts, as well as of their divergent applications of terms. Plunkett and Sundell call this class of disputes “seeming conceptual variation cases” (“seeming variation cases” for short), because ordinarily we would conclude that there is semantic variation in such cases.
It is Dworkin’s argument schema—the disagreement-based argument type—that comes in for Plunkett and Sundell’s central criticism. They take issue with Dworkin’s views not only about interpretive concepts, but also about noninterpretive concepts. (P. 254.) As they rightly complain, “Dworkin hasn’t given us a good theory of exactly what interpretive concepts are.” (P. 255.) They contend further that the disagreement-based argument fails because it rests on a flawed premise, namely, that “the best way to explain how an exchange between two speakers serves to express a genuine disagreement is, in almost all circumstances, to suppose that those speakers mean the same thing—that is, express the same concepts—with the words they use in that exchange.” (P. 246.) Dworkin is mistaken, they contend, to think that shared meanings best explain how a dispute can express a genuine disagreement.
While Plunkett and Sundell agree with Dworkin about the existence of bedrock legal disputes and, more generally, seeming variation cases, they disagree about how to account for them. They argue that the disputes of interest to Dworkin are best explained as involving “metalinguistic negotiations.” In metalinguistic negotiations, speakers use the same term to express different concepts and are engaged in negotiation, pragmatically advocating about which concepts should be used. Consider disputes about whether the racehorse Secretariat was an athlete or whether waterboarding is torture. Speakers in such disputes express different concepts using the terms ‘athlete’ and ‘torture’ and negotiate which concepts to use and how to use language. Nevertheless, the disagreements are genuine and serve a purpose.
Plunkett and Sundell move beyond bedrock legal disputes to apply their account to “hard cases.” Consider legal disputes over whether a drug trafficker who trades firearms for illegal drugs is “using” the gun or whether a law that there be no vehicles in the park applies to use of a riding lawn mower. (P. 269.) According to Plunkett and Sundell, “disputes about such issues have exactly the sorts of features that make them ripe for analysis as a metalinguistic negotiation. The speakers involved are by and large mutually aware of all the relevant nonlinguistic facts… And it is at least plausible that there is no antecedently settled matter of fact about the meaning.” (P. 269.) Parties to the dispute are familiar with what a riding lawn mower is like, for example; they differ as to whether it counts as a “vehicle.”
Plunkett and Sundell maintain that the idea that bedrock legal disputes are best analyzed as metalinguistic negotiations vindicates Dworkin’s thought that “they involve a disagreement about a topic that is worth arguing about.” (P. 268.) And that idea does so without the theoretical cost of introducing a whole new category of concepts or relying on a controversial typology of concepts. In addition, unlike Dworkin’s appeal to interpretive concepts, an explanation of bedrock legal disputes that appeals to metalinguistic negotiations remains neutral between positivism and non-positivism about law.
Readers may be more persuaded by Plunkett and Sundell’s negative case against Dworkin’s interpretivism than by their positive alternative for explaining bedrock legal disputes. But their proposal is intriguing and may prove fruitful to legal theorizing beyond accounting for certain disagreements about law.
This article should be of serious interest not only to Dworkin scholars but to those working in analytical jurisprudence more generally, and not only for its detailed and enlightening examination of Dworkin’s interpretivism. Plunkett and Sundell are among a small number of philosophers working at the intersection of metaethics and philosophy of law. In this article, they bring tools from the philosophy of language to bear on Dworkin’s ideas, revealing difficulties for those ideas that might otherwise be missed. The article thus nicely illustrates the benefits of drawing on what might seem to be remote areas of philosophy to address central problems in analytical jurisprudence.
Nov 12, 2014 W.A. Edmundson
The planet’s population of wild nonhuman animals has declined by one-third over the past fifty years. Over that same period the human animal population has doubled. (Hereon, I will simply refer to “animals” and “humans.”) The two numbers and the trends they represent are connected. Human activity accounts for much of the decline in wild populations. Non-wild animal numbers have grown, over the same period, but this is due largely to the trebling of meat consumption by humans. This is expected to double again by the year 2050. Something like 56 billion animals are now slaughtered annually for human consumption. Ten of them, approximately, for each one of us; and the ratio is growing. The amount of animal suffering due to purposeful or knowing human conduct is staggering.
There are signs that humans are becoming more thoughtful about, and more sensitized to, the suffering and exploitation of animals. Animal welfare laws have become more common and have begun to address the conditions of animals in factory farms. Nevertheless, the larger picture is depressing: an “Eternal Treblinka” (Zoopolis, P. 2) whose moral and political superstructure remains largely unquestioned. Despite over a century and a half of campaigning, human advocates for better treatment of animals have rather little to show for their efforts.
In their 2011 book, Zoopolis: A Political Theory of Animal Rights (Oxford University Press), Sue Donaldson and Will Kymlicka recite these facts in prefacing their diagnosis of the impasse that animal-welfare activism finds itself in. Activism has made little headway because advocates of better treatment for animals have, for the most part, argued within three theoretical frameworks, which the authors call a “welfarist” approach, an “ecological approach,” and a “basic rights” approach. Welfarism, as they define it, accepts the subordination of animal interests to human interest, and advocates “humane use” of animals within that framework. The ecological approach focusses not on individual creatures but on the ecosystem itself, and promotes the interests of animals only insofar as that is part of protecting the ecosystem. The basic rights approach extends the idea of inviolable human rights to animals. Unlike the first two frameworks, the basic rights approach regards animal interests not as subordinate but as fundamentally equal to those of humans. The authors accept the basic rights approach, but confess that despite decades of articulation it has found a foothold only among certain activists and academics. It has “virtually no resonance amongst the general public” and remains “a political non-starter” (Zoopolis, PP. 5-6), even though electorates have increasingly shown a degree of worry about the treatment of animals. Why? Or, as the authors put it:
Having acknowledged that animals are living beings whose suffering matters morally, why is it so hard to take the next step and acknowledge that animals have moral rights not to be used as means to human ends? (Zoopolis, P. 5.)
The authors note that selfishness (both individual and corporate), selective blindness, and cultural tradition are contributing factors, but they argue that the typical way in which animal rights theory has been framed is itself an important obstacle: it “focuses on the universal negative rights of animals, and says little about positive relational duties.” (Zoopolis, P. 6.) Typical negative rights are the right not to be murdered, not to be raped, not to be experimented on, while a typical positive duty would be to render aid to someone who is in distress, and a typical relational duty would be a duty to support one’s family and to stick up for one’s friends. The nearly exclusive theoretical concentration on generic negative rights for animals stands in stark contrast to the human context, in which “the vast bulk of reasoning and moral theorizing concerns not [the] universal negative rights but rather the positive and relational obligations we have to other groups of humans.” (Zoopolis, P. 6.) So, the authors propose, let’s talk about positive and relational rights for animals. At first, this seems to be an odd prescription to be making. If a short list of negative rights for animals is a hard sell, one would expect that enlarging the list to include positive rights would be harder still.
But there is more to the authors’ prescription than might first appear. They point out that many of the rights and duties humans owe each other arise out of relationships: parent and child, teacher and student, master and apprentice, and the typically asymmetrical dependency of latter on the former gives normative content to the positive duties—and correlative positive rights—that arise. (It might be misleading to call these relational rights and duties, rather than positional rights and duties, because all rights are in a sense relational.) The first step, to escape the impasse animal rights theory finds itself in, is to take account of the many different ways that humans and animals interact. From this wide variety, Donaldson and Kymlicka extract three salient, morally relevant categories. There are domestic animals, that we have bred to be dependent upon us and live amongst us, such as household pets. There are wild animals, who are capable of living apart from us and with whom we have little interaction unless we are animal ethologists, zoologists, or zookeepers. Finally, there are liminal animals, that live amongst us but do not normally associate with us, such as squirrels and feral cats. The authors propose to recast animal rights theory so that it is structured around these three categories.
The way they do it involves taking what one might call a political-philosophical turn or reorientation. Because domestic animals live among us and must for the most part continue to do so, they are to be treated as citizens, enjoying the same rights and duties as human citizens—adjusting of course for relevant differences in ability, just as we do for children and the severely cognitively handicapped. Wild animals species are to be treated as sovereign nations having rights to their territories. Liminal animals are to be treated as foreign visitors or resident aliens. All three categories are protected by certain universal negative rights; but integrated with these are “differentiated positive rights” (Zoopolis, P. 11) that largely track the three categories.
The article I like a lot, Animals and the Frontiers of Citizenship, is a sequel to the book, elaborating and defending their proposal of citizenship for domestic animals in the states in which they reside. I was most struck by the originality of the proposal to attribute duties to domestic animals, two duties in particular. One is a duty of civility, that is, to behave appropriately to social circumstances: oxen should tread carefully, dogs should not lunge, cats should not scratch upholstery. Another is a duty of contribution: oxen should pull, dogs should fetch the newspaper, and cats should, well … the article does not answer every question one might raise. The importance of attributing duties is that it meets a plausible demand that citizenship be founded on a capacity to enter and honor reciprocal relationships of mutual accountability. Although animals are fully capable of misbehavior, there is resistance to thinking them capable of wrongdoing. The authors, in fact, are doubtful of applying the concepts of moral and legal culpability to animals. Some will raise a conceptual objection to the notion of a creature’s genuinely bearing a duty for which she cannot be blamed for breaching. Nonetheless, domestic animals clearly have a “capacity for norm-responsive behavior” (P. 215), and by “developing new ways of engaging the subjectivity of these co-citizens, focusing less on the ability to articulate or understand propositions, and more on attending to their ‘varied modes of doing, saying and being’,” (PP. 207-08) there may be enough to get a sufficiently robust idea of reciprocity going, to satisfy political philosophers and others who conceive citizenship in those terms.
Do domestic animals need citizenship, and the responsibilities and rights that constitute it? In other words, wouldn’t they do just as well or better if they were recognized merely as non-rightholding beneficiaries of a suitable list of positive and negative duties borne by humans? After all, it’s hard enough to win over skeptics about animal rights; won’t it be even harder to convince a them that domestic animals have citizenship rights they don’t really need? But Kymlicka and Donaldson present a plausible and attractive picture of how we all might be better off—humans and domestic animals alike—if we lived together in a community united in citizenship.
Oct 13, 2014 Daria Roithmayr
By now, many JOTWELL readers will already have read (and re-read, and maybe even already assigned for class) Ta-Nehisi Coates’ stunning article in The Atlantic, “The Case for Reparations.” In this JOTWELL recommendation, then, I write not so much to recommend the article as something we like (though for those readers who have not yet read, I ask, “What are you waiting for?”) but to ask a different question. I write because after reading this journalistic masterpiece, which blurs the line between multimedia reportage, impassioned advocacy and rigorous scholarship, I am provoked to ask, in all seriousness, shouldn’t we scholars be rethinking the form that we use to do what it is that we do? Why aren’t more of us doing what he’s doing?
First, a brief review. Substantively, the article can be divided into four parts (though Coates divides it into ten). In the first part, we are introduced to Clyde Ross whom we meet in 1920s Jim Crow Mississippi. Whites steal land and a horse from the Ross family with impunity. Ross and the story move to 1960s Chicago, where Ross is robbed again, this time fleeced through a scheme in which houses are sold “on contract,” a draconian rent-to-own scheme in which buyers late on their payments can be evicted and left with no property or refunded equity. Finally, through Ross, we are introduced to the debilitation of modern-day North Lawndale Chicago—income and wealth half the rate of white communities, poverty, unemployment and infant mortality at twice the white rates, skyrocketing crime rates and a plummeting population.
In the second part of the article, Coates begins to build the case for reparations. He chronicles the way in which the country’s industrializing economy was built on the foundation of slavery, with slaves as labor for cotton (and cotton exports) and slaves as a source of revenue and currency themselves. Coates documents the central role that the U.S. legal system played in making possible both slavery and Jim Crow. During slavery, property law created two classes of people, those who owned property and those who themselves were the property owned.
During Jim Crow, law excluded blacks from the benefits of the New Deal programs: Social Security, the GI Bill and the FHA government-subsidized mortgage program definitively excluded blacks, to help whites. The same government programs that opened up credit channels for whites to facilitate their flight to the suburbs also drew maps with red lines around black neighborhoods to show brokers where lending was prohibited. With no access to credit, black buyers like Clyde Ross who were in search of the “American dream” were instead easy prey for sellers “on contract” and of course they had no legal remedy. White homeowners’ associations used restrictive covenants to create and then maintain segregated neighborhoods. Law enforcement turned a blind eye to organized white terrorism, doing nothing to redress victims of race riots in Tulsa, Memphis and elsewhere. And decades later, local government law directed public housing projects be built in black neighborhoods, further concentrating already existing pockets of poverty and public need. (I’ve heard more than one reader remark after reading this historical narrative that they’d had no idea just how central government was to Jim Crow oppression.)
In the third part of his piece, Coates takes on the arguments against reparations. He unmasks questions about whom and how much might be paid, diagnosing them as motivated by the desire sidestep the deeply troubling questions that a robust reparations debate would raise. As Coates points out, to seriously consider reparations would require the country to squarely acknowledge its own sordid past, to chasten American exceptionalist narratives of freedom and democracy with other stories of terrorism, violence, murder, thievery and exploitation. Coates also points out that in the same way that post-war German reparations to Israel required policymakers to reckon with the magnitude of the holocaust, US reparations would require a racial reckoning of government responsibility for white supremacy. (The US was so afraid of the discussion in fact that Colin Powell withdrew from the 2001 World Conference Against Racism in South Africa because the subject of reparations was put on the agenda.)
In a short coda, Coates adds the story of sub-prime mortgages, quite literally layering the interactive map of predatory lending on top of the pre-existing map of segregation. Like the bank-backed contract borrowers of yesteryear, sub-prime lenders and the banks that funded them targeted black neighborhoods with higher-interest loans and onerous terms. Coates doesn’t say it, but blacks lost three times as much as whites in the crash: according to the Pew Research Center, the median net worth of black households fell by 53% between 2005 and 2009, compared to a fall of 16% for whites, whose home equity typically accounts for a smaller fraction of their wealth.
Coates builds a solid historical and sociological foundation for his argument, citing to great scholars like Thomas Sugrue, Patrick Sharkey, Douglas Massey, Arnold Hirsch and Robert Sampson. But Coates is at his most powerful when he weaves the scholarship together with the intimate stories of people like Clyde Ross, Billy Brooks and the freedwoman Belinda Royall. His in-your-face rebuke for failing to even take up the question of reparations is also pretty impossible to ignore.
Coates piece is hard to peg, stylistically. Certainly the storytelling and the call to arms mark the work as a certain kind of journalism, and perhaps even advocacy (though Coates shies away from the word in interviews). In terms of medium, “A Case for Reparations” takes full advantage of what Journalism 2.0 has to offer. Reminiscent of the New York Times’ groundbreaking article on an avalanche, Coates’ piece is full of photo galleries, interactive maps and compelling videos. These embedded images give the presentation immediacy and urgency. We see Clyde Ross’s face, we hear Billy Lamar Brooks’ voice and watch him interact with his mentees, and we hear him tell the story of his son’s murder. We tour the abandoned corner blocks of North Lawndale. To use a legal framework, we are looking at the evidence that Coates has amassed in support of his case for reparations.
In the last few weeks, Coates’ piece has blown the reparations conversation wide open in a way that has evoked both envy and inspiration on my part, even as the piece relies for its power on much of the academy’s best work. Yes, yes, I know Coates has worked hard to develop a following, to hone his wonderful craft, and it helps that The Atlantic has thousands more subscribers than does, say, the Michigan Journal of Race and Law.
But here’s a question. Why doesn’t more of our legal scholarship about race look like “A Case for Reparations”? Coates’ writing is gripping and powerful, even as it sits solidly on the foundation of rigorous scholarship. Much academic writing on race seems relatively lifeless and sanitized, by comparison. Why don’t more legal scholars on race weave reportage and storytelling into our analysis, and embed interactive maps and videos into our work? Why don’t more of us submit work to The Atlantic in addition to law reviews or the American Journal of Sociology?
Every scholar I know has wrestled with the question of relevance more generally, whatever we might think about Nicholas Kristof’s question about academics serving as public intellectuals. And whether or not we want to classify ourselves as public intellectuals, we ought to find ways to make ourselves more relevant to this kind of public political conversation. Certainly politics and not law is where these conversations about race and reparations will draw energy, at least for the foreseeable future.
Sep 10, 2014 Michael Green
That Dworkin waited until the very end of his career to take on international law might seem strange. One of Dworkin’s great insights is that participants in legal practices often disagree about the criteria for identifying law, while nevertheless thinking that their disagreement has a determinate answer. If we are to do justice to these “theoretical disagreements,” as Dworkin called them, we cannot hold a positivist theory, like H.L.A. Hart’s, under which the existence and content of the law are ultimately determined solely by social facts about a community’s legal practices. Only by introducing evaluative considerations can we make sense of practitioners’ commitment to law that transcends these social facts.
International law would appear to be a poster child for the Dworkinian theory of law. Theoretical disagreements about international law are common, and those seeking to resolve them commonly appeal to evaluative considerations. What is more, it appears that international law, by its very nature, transcends social facts about the legal practices of a particular community. The principles of international law seem to stand above and bind the American, French, or Uzbek communities.
But I think there is a good reason that Dworkin shied away from discussing international law for so long. For most of his career, he shared with positivists the pluralistic view that a legal norm is essentially tied to a particular community. It isn’t easy to make sense of international law within such a framework. Consider the alternative to Hartian positivism that Dworkin offers in Law’s Empire, under which law is identified through the best moral justification of the legal practices of a community, such that a justifying connection can be found between past political events and present coercion. It is true that because law depends upon the best moral justification of a community’s legal practices, law can outstrip social facts about those practices. This is how Dworkin explains theoretical disagreements. Nevertheless, law remains constrained by the particular community’s legal practices that are being justified. Justification must fit those practices, and this requirement of fit means that the rights and obligations in one legal system can deviate in a fundamental way from those of another—and from the moral rights and obligations that apply to all of us, independent of the community within which we find ourselves. There appears to be no place within Dworkin’s theory, so understood, for international law, at least when such law is understood as standing above and binding all communities.
But in Justice for Hedgehogs, published only two years before his death, Dworkin adopted what I think is a different, although equally anti-positivist, theory of law. The main thesis that Dworkin defends in Hedgehogs is the unity of value, which includes the unity of law and morality. For Dworkin, law is simply “a branch, or subdivision, of political morality.” (P. 405.) Social facts about a community’s legal practices play a very different role in Hedgehogs than they do in Law’s Empire. In Law’s Empire they constrain—one might even say distort—moral reasoning, with the result that a jurisdiction’s law is a normative system distinct from morality and from the law of any other jurisdiction. In Hedgehogs, by contrast, social facts about a community’s legal practices simply make our abiding moral obligations more concrete and particular. As a result, each jurisdiction’s law is a branch of the same normative order. This opens up a place for international legal norms that bind every community.
The binding character of international law is an important theme in “A New Philosophy for International Law.” The problem with positivist theories of international law, Dworkin argues, is precisely their inability to explain this binding character. (P. 10.) The positivist, Dworkin argues, will be tempted to understand a nation as bound by international law only if it has consented to be bound. (P. 5.) And it is easy for Dworkin to show that such a consent theory fails. Some peremptory norms of international law are binding on a nation independent of its consent. (PP. 6-7.) Furthermore, the legally binding effect of consent is itself the consequence of a peremptory norm. Having consented, a nation is constrained by international law whatever its current legal practices happen to be. (PP. 9-10.)
One might question whether Dworkin is right to tie positivism to consent theories of international law. Dworkin argues that a consent theory “is a firmly positivist view of international law because whether a state has consented to a particular rule is just a matter of history.” (P. 5.) But plenty of other things are just a matter of history too. Why focus on consent? One’s suspicions are strengthened when Dworkin offers Samantha Besson, “Theorizing the Sources of International Law,” in The Philosophy of International Law, ed. Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), as a consent theory of international law based on a positivist foundation. (P. 5.) In fact, Besson presents consent as only one possible source of international law.
Although his argument could have been formulated more clearly, I think Dworkin is on the right track. His real point is not that a positivist must ground international law in a nation’s consent, but that he must ground it in a domestic legal system’s self-limitation—here construed as some datable social act. (P. 10.) Consent is simply the most obvious (although not the only) form of such self-limitation. And, as Dworkin persuasively argues, self-limitation—the notion that the binding character of international law is at the discretion of domestic legal practices—cannot explain how international law can bind all communities.
It is worth noting, however, that the positivist is not the only philosopher of law who has trouble making sense of the binding character of international law. At the time of Law’s Empire, Dworkin himself would have been compelled to argue that international law is the product of a kind of domestic self-limitation. For an international legal norm to bind a community under the theory of law in Law’s Empire, it must be the case that the community’s legal practices are such that, when morally interpreted, they will generate that norm. Thus, a community can escape international law simply by having legal practices that, when morally interpreted, will not generate the norm.
“A New Philosophy for International Law” is important because of the light it sheds on the monistic version of anti-positivism that Dworkin offered toward the end of his career. That said, the particular argument for principles of international law that Dworkin presents in the article is, as it stands, far from persuasive. Crucial premises—such as a coercive government’s “standing duty to improve its own legitimacy” (P. 19)—appear without justification or even explanation. Someone looking solely for a clear philosophical account of an anti-positivist theory of international law would be wise to look elsewhere. But for anyone interested the fascinating evolution of Ronald Dworkin’s anti-positivism, this is required reading.
Jul 29, 2014 Barbara Levenbook
This is a provocative and important essay that has implications Solum doesn’t spell out for some positions on meaning, communication, statutory interpretation, and the understanding—sometimes called the “construction”—of statutory texts. Solum is interested in communicative content, principally of directives. Most of his examples are of legal directives, or as he prefers to describe them, legal rules.
Solum begins with an important distinction between communicative content, the kind of meaning he is interested in discussing, and legal meaning, the legal contribution a text makes in its particular legal system. It is not uncommon for discussion of statutory interpretation to conflate the two or to focus entirely on the latter, but this is a mistake. In some legal systems, such as in the United States, the communicative content of a statute can cause it to fail to make any legal contribution (because, for example, the statute is unconstitutional). So getting clear on communicative content is a prolegomena to getting clear on much of statutory interpretation. Solum aims to make a significant contribution to this task by illuminating the lack of connection between communicative content, intention, and the mental states of individual legislators.
The core of the article is a thought experiment Solum calls “The Chinese Intersection,” in which an artificial intelligence system for a supremely complicated traffic intersection in Shanghai is described. The Shanghai Artificially Intelligent Traffic Authority, or SAITA, is created to govern a busy intersection involving several kinds of transportation systems. SAITA is programmed to monitor, on a moment-to-moment basis, vehicular, rail, and pedestrian traffic and, in order to insure the traffic’s smooth and safe flow, to alter signs, traffic lanes, and speed limits. SAITA can also make legal changes to the traffic regulations, post appropriate signs, and create legal texts. It can invent symbols for behavior newly outlawed or regulated; moreover, it has the capacity to create YouTube videos and engage in other campaigns of public education to inform about new regulations, new vocabulary, and so on. We are invited to envisage such a system operating successfully.
The beauty of this thought experiment is that if you find it coherent, you are forced to reject a number of philosophical claims, and to reevaluate others. For instance, you are forced to reject the conjunction of two claims: (1) marks don’t mean anything if not made with an intention to mean something (a view held by literary theorists Steven Knapp and Walter Benn Michaels, though Solum doesn’t note this), and (2) intentions are mental states. You are also forced to reject this conjunction of views: (2) intentions are mental states, (3) communication is either successful or unsuccessful relative to a communicator and a recipient (hearer, reader, or viewer), and (4) successful communication requires that the communicator’s “communication” intentions be recognized by the recipient. By hypothesis, SAITA has no mental states. Yet its marks, even when vocabulary has been invented for new offenses in signage and legal texts, do mean something to the pedestrians, motorists, train crews, etc., who navigate the Chinese Intersection. Moreover, SAITA’s success, especially where it is truly innovative, seems to depend heavily on its ability to communicate to the appropriate addressees, sometimes rapidly in real time, the changes it introduces.
Even if one rejects (2), the Chinese Intersection invites reconsideration of philosophical claims influential in discussions of statutory interpretation. For example, if there is nothing that can be an intention of SAITA (and is there?), one must reject claim (1), that there cannot be “intentionless meanings.” In addition, one must reject claims (3) or (4). The conjunction of both is a Gricean-inspired view too frequently uncritically adopted by those who think the communicative content of statutes depends entirely on legislative intention.
All Solum explicitly aims for in this article is the rejection of the contentions that communicative content is constitutively determined by the mental states of individual human minds, and that this is especially true about legislation. To bring the thought experiment closer to legislation as we know it, he alters the thought experiment so that SAITA is replaced by a group of individuals known as GAST, in which various teams take on various sub-tasks of SAITA, including the production of different sections of the traffic code. The story is that frequently, a text of new regulations is approved and implemented without any single individual having read the entire text. Solum treats it as a short step to the conclusion that meaning in law—that is, of legal texts—is just as “artificial” as the meaning produced by SAITA and GAST. There is the further suggestion that this meaning is semantic meaning.
I find this part of the article less successful for a number of reasons, but its success isn’t all that important. Sophisticated proponents of the view that the meaning of a statute is determined by some sort of legislative intention do not maintain—and, indeed, sometimes emphatically deny—that this legislative intention is reducible to the intentions of any single individual, whether understood as a mental state or in some other way.
There is, to be clear, no claim in this article to tackle the intentionalist view in its sophisticated form(s); Solum aims instead to refute what he calls a “folk theory” of meaning. As I’ve said, I think he achieves much more. Even those who do not share his intuitions about the presence of communication by SAITA are well advised to grapple seriously with his Chinese Intersection thought experiment.
Jun 4, 2014 Brian Tamanaha
Jeremy Waldron,
What is Natural Law Like?,
N.Y.U. Working Paper Series (2012), available at
SSRN.
Seldom do I come across a jurisprudence article that uses a simple shift in framing to place an old topic in a completely new light. “What is Natural Law Like?” by Jeremy Waldron prompted questions about natural law that had not occurred to me in two decades of following the subject. The standard ways of discussing the topic cover the natural law tradition, starting with Aquinas and moving to the present; take up what qualifies a theory as “natural law,” usually a claim of objective principles; elaborate on the debate between natural law and legal positivism; and lay out the positions of various “natural law” theorists, including John Finnis, Ronald Dworkin, and others. Much of this territory is familiar and well-worn.
Waldron starts with a standard question, “what is a law of nature?”, but immediately adds a twist by positing, “we should expect natural law to be law-like. It should be like law.” This seems innocuous as he states it, but it quickly produces unusual implications.
Before laying out those implications, Waldron points out that John Finnis’s Natural Law and Natural Rights, which sets out a list of basic human goods and principles of practical reason, “has not really given us a theory of natural law at all,” for what he discusses is not law, but a kind of moral theory.
Waldron insists that natural law must possess the basic qualities of “law” or it does not qualify for the label. “It must be the sort of thing that can order human affairs in the forceful way law does.” This produces five criteria: 1) it must impose requirements and prohibitions (be deontic); 2) it must be understood as enforceable in some sense; 3) it must be supported by ancillary principles (fairness, culpability, etc.); 4) it must be separate from ethics and morality; and 5) there must be shared recognition.
Waldron uses each requirement as a point of departure for wide-ranging and complex discussions that cannot be summarized here. Instead I will focus on aspects of three requirements (2, 4, and 5), which I found particularly thought-provoking, though additional nuggets of insight are scattered throughout his analysis.
Waldron introduces the discussion of enforceability with a claim: “It has long been considered part of law’s inherent character that it be enforceable.” He acknowledges that this usually refers “to availability of coercive practices or institutions,” but sets this aside to take up a different angle. He inquires about “the sense of its being appropriate, or at least not inappropriate, to uphold a given norm with force,” which leads to issues surrounding the proper level of punishment. His discussion is fascinating, but an unaddressed question lingering in the background is who or what is supposed to uphold the norm. Waldron divorced the issue of the appropriateness of applying force from the mechanism. Is natural law sufficiently law-like when it is appropriate to apply coercive force but there is no possibility of it happening? This is a critical question because if the answer is negative, then what makes natural law law, it seems, is the prospect of divine punishment (or some substitute), which brings us back to the original understanding.
Waldron uses the separability of natural law from ethics and morality to clarify several points about the relations between positive law, conventional morality, and objective (or critical) morality. He also shows various respects in which ethics, morality, and law are not coextensive. Ethics addresses personal values and virtue, some of which are purely self-regarding, whereas law is other-regarding and deontic. Morality encompasses a range of normative evaluation, whereas law is more narrowly rule-like and preemptory. Waldron suggests that, rather than a total separation, natural law is a subset of objective morality.
With respect to the fifth requirement, Waldron argues that people generally must be able to recognize natural law because “It rules us; it orders what we do to and with one another; therefore it must be something we share and know that we share.” The answer in classical theory was that people know natural law through natural inclinations or reason, or because it is self-evident (at least to the wise or thoughtful), though various limitations and perversions can interfere with its recognition. Waldron acknowledges that the fact of disagreement is a major objection raised against natural law. “If Aquinas is wrong about the self-evidence of natural law propositions or wrong about the degree of deference that is required to convince people of their self-evidence, then different people may accept different norms that are at odds with one another, and different wise men may try to convince people of different conclusions so far as the chains of self-evident reasoning available only to them are concerned.” Disagreement in itself does not mean objective principles do not exist, as natural law theorists have argued. However, by asserting that people generally must recognize it if it is to count as law, as Waldron does, then it would seem to follow that it must be broadly recognized (or at least recognizable) via reasoned reflection across cultures. This is a demanding requirement.
In the final part of his essay, Waldron takes what resembles a sociological turn, or arrives at a position that could be explained naturalistically, though he holds to natural law. It bears quoting in full:
From a human point of view, we can only be governed by what we think is natural law. God’s rule in the world aside, that is all natural law can be so far as our actions and interactions on earth are concerned.
In a way this generates something like the idea of the positive presence of natural law among us. What governs us in the name of natural law is a set of human propositions, commonly recognized as purporting and perhaps succeeding in capturing laws that apply objectively to us in the absence of human institutions. This conception does not, I think, blur the distinction between natural law and positive law. Positive law is institutional, but the rule of natural law that I am imagining is not. Positive law is understood to be changeable at human hands; natural law is not, though of course our understandings of natural law can change. Positive law often has canonical formulations (in statutory and constitutional texts); natural law never does. Positive law can be understood to command things that are decisively wrong; natural law cannot, even in spite of our arguments under heading 4 about its separation from morality. These differences matter. But they should not lead us to neglect the importance of the positive presence among humans of (what they think are) natural laws.
This resembles a sociological turn in the sense that, from a sociological standpoint, even if natural law theory is false (or a fiction), it nonetheless has real consequences in the world in so far as people act on belief in natural law. A naturalistic explanation would characterize commonly recognized principles, to the extent they exist, as the product of human evolution.
What distinguishes Waldron’s position from these other two perspectives is that he ties the existence of natural law beliefs directly to the reality of natural law (via the 5th requirement) as a genuine form of law. Natural law is thus the genesis of the “positive presence of natural law,” albeit manifested in human societies shrouded in uncertainty owing to limits of knowledge and human fallibility. (A reader might wonder, as a follow up, what explains the genesis of natural law itself, though Waldron does not address this.)
I have addressed just a few of the fascinating issues raised by this essay. It should be read by anyone interested in the topic. It would also serve as useful supplemental reading in a Jurisprudence course because it is relatively brief and clearly written, and takes up many interesting topics that bear on law, morality, and natural law.
May 5, 2014 Brian Bix
In legal philosophy, as in many scholarly areas, there is a “good and original” problem: the work that is very good tends not to be particularly original (usually being rather a careful modification of existing ideas), and the work is truly original tends not be very good at all. There are occasional exceptions, and one of these in the area of legal philosophy is the work of Mark Greenberg, who in recent years has developed, through a series of articles, a significant, and significantly novel approach to the nature of law. As will be described, Greenberg’s theory is distinctive and refreshingly heretical.
Greenberg’s approach is in sharp contrast with what he calls “the Standard Picture,” a view he believes to be assumed or accepted, but rarely argued for, in connection with most of the currently popular theories of the nature of law. Under the Standard Picture, when legislators enact a statute, they directly and straightforwardly add to our law(s). At the same time, as Greenberg points out, lawyers, legal theorists, and law students – and everyone else who has looked seriously at the process of statutory interpretation in actual cases – know that the way statutes add to the law(s) is not that direct or that clear. This is shown indirectly in the way that competent judges and practitioners, acting in good faith, often disagree about the legal effects of a statute (in application to actual or hypothetical sets of facts), with disagreements often occurring at a basic level (e.g., should we focus on the plain meaning of the statute’s text, or should we focus on what the lawmakers intended to do). As the article points out, judges who disagree about statutory interpretation rarely come equipped with arguments about why some factors are relevant and others are not, or why some factors should be given greater weight than other (relevant) factors. As Greenberg indicates, any such argument would likely be in terms of why – and when — the actions of legal officials affect our moral rights and duties.
Greenberg’s Moral Impact Theory of Law points the focus elsewhere, in determining what counts as “law.” His approach focuses on the way that the actions of legal officials (lawmakers in passing statutes, judges in deciding case, etc.) affect our existing moral obligations, and it is those effects that are (our) “law.” Legislators may enact statutes and judges may decide disputes, but, under this approach, we only have “law” once we calculate the moral impact of those official actions on our moral rights and duties (and powers and immunities).
The Moral Impact Theory of Law has the advantage of being able to account for deep and lasting disagreements about the legal effects of statutes, decisions, and constitutional provisions. It is also, as Greenberg points out, consistent with the way that law seems to claim moral authority for the obligations it creates. This seems an audacious claim, but if and when it is rejected (as many modern legal positivists do), we are then left with a real mystery regarding what is meant by saying that someone “has a legal obligation to act (or refrain from acting) in a certain way” – in what does that “obligation” entail if it is not a moral obligation?
Greenberg’s Moral Impact Theory is related to, but clearly different from, an approach associated with the Natural Law tradition. Under this Natural Law approach (there are a number of different Natural Law approaches; this is just one of them), law can change our moral reasons for action (i.e., it changes our moral rights and duties), but only if the laws promulgated are consistent with morality and meet certain other substantive and procedural criteria.
The other approach with a surface similarity to Greenberg’s is Ronald Dworkin’s theory. As Greenberg characterizes the contrast, “the Moral Impact Theory holds that the law is the moral impact or effect of certain actions of legal institutions … rather than [as in Dworkin’s theory] the set of principles that best justify them.”
As an old theorist, set in my ways, it is probably not surprising that I am inclined to resist Greenberg’s provocative heresy. I resist any equation of the questions “what is law?” with “what is morally required?,” worried that merging law with morality in this way deviates too far from distinctions between law and morality central to both conventional and theoretical understandings. I can see the attraction of the view of those American legal realists who insisted that a legal obligation should be understood not in moral terms (the actions of legal officials clearly range from the morally praise-worthy to the far opposite) but in terms of what state force is likely to be brought to bear against one, through the courts or other officials, if one does not comply.
Note that there is no dispute across approaches – from Greenberg’s approach to Thomistic natural law theory to recent versions of legal positivism – that the actions of legal officials can at least sometimes change our moral rights and duties, and also at least sometimes fail to change them. The question is only at what stage the term “law” applies: at the stage of the officials’ action, or the stage when our moral rights and duties have been changed.
While I resist the approach, I recognize that that Greenberg’s “Moral Impact Theory” succeeds in responding to jurisprudential issues that more conventional approaches not only fail to resolve, but seem largely to ignore.
Apr 1, 2014 Michael Cedrone
Linda Edwards’ article is a thoughtful examination of the hidden and unexplored role of narrative in legal decisions. The article raises fundamental questions about the nature and boundaries of legal discourse and demonstrates that narrative theory and cognitive study can bridge the distance between what one may call ‘traditionalist legal analysis’ and its ‘oppositionist’ critique. The article is a delight. It joins an arresting image to an elegant argument, and it is beautifully written.
Edwards’ arresting image evokes an ancient, walled city. Life proceeds vibrantly inside the walls, where people deliberate and decide questions within a common cultural frame. Outside the walls, prophets shout toward the people, but their voices are lost in the vast plains. Occupants of the city occasionally lob verbal assaults—“Be quiet; stop whining; leave us alone”—but the city largely ignores the prophets. For Edwards, this metaphor captures the relationship between judges and traditionalist legal scholars and critical theorists.
Edwards’ elegant argument posits that narrative frame accounts for the distance between the city and its prophets. The lynchpin of Edwards’ logical argument is that cultural myths and master stories—“preconstructions,” to use Peter Goodrich’s term—underlie the traditional tools of legal analysis. If these myths and master stories are part of law when used by traditionalists, then, for Edwards, they surely are part of law when used in critique.
To illustrate this point, Edwards turns to the “myth of redemptive violence,” tracing its history to the Enuma Elish, an ancient Babylonian creation story. The young god Marduk vanquishes an existential threat to the community in exchange for the community’s unquestioning obedience to him. According to the myth, only Marduk’s redemptive violence can secure the people. Cumbersome social and legal systems can handle mundane problems but fail to protect against existential crises. Only violence, directed against a scapegoat, can redeem the community and define its insiders and outsiders.
Enter Yaser Esam Hamdi, a U.S. citizen captured on the battlefield in Afghanistan in 2001. President Bush declared him an “enemy combatant,” and he was held first in Afghanistan, then at Guantanamo, and finally within the United States, without charges, without access to a lawyer, and without process. Hamdi’s father filed a habeas petition on his behalf that in part challenged his designation as an “enemy combatant” based on the circumstances of his capture. The government defended with a cursory affidavit based on hearsay.
The Fourth Circuit begins its judgment denying the Habeas petition by describing the events of September 11, cavalierly declares the enemy combatant issue to be “undisputed,” then orders the habeas petition dismissed. For Edwards, this opinion illustrates the myth of redemptive violence: for the Fourth Circuit majority, habeas will not protect us, only violence wrought on the outsider Hamdi will—forgetting almost entirely the inconvenient fact of Hamdi’s citizenship.
Eight justices of the Supreme Court reject this conclusion—albeit on three different grounds and with important doctrinal differences among them. According to Edwards, whatever their doctrinal commitments, these eight justices are operating on a different cultural myth—this time, a story about the founding of our Nation, and the habeas corpus protections from government overreach that are enshrined in our Constitution.
It is one thing to observe narrative at work; however, it is a quite larger challenge to define space for narrative in legal discourse. Edwards recognizes that outsider narratives are not meant to be set in bald opposition to the traditional tools of legal analysis. Conversely, cognitive science teaches that confronting a decision maker with traditional merits arguments merely triggers the decision maker to generate competing merits arguments that protect his or her own preconstructions.
Edwards argues instead for a values-involved mode of argument that attempts to reframe the dominant narrative into one that opens the decision-maker’s mind to new ways of seeing a legal problem and ultimately, new solutions. Edwards revisits Richard Delgado’s point made nearly twenty-five years ago: the law is a war between stories. Consequently, Edwards advocates a wide definition of law that admits and attempts to make explicit the hidden myths and master narratives that underlie traditional legal argument.
An important contribution of Edwards’ article is its insight into how cognitive science and neurobiology impel people toward narrative schemata. Narrative is part of our human DNA and therefore provides a cognitive foundation for rational legal argument. While Edwards recognizes that narrative does not explain all legal outcomes, the scientific evidence adds a compelling reason to examine our preconstructions closely. Edwards’ long experience as a scholar of rhetoric well qualifies her to undertake such a study.
More reflection on this topic is surely necessary. While Hamdi offers a nice example of courts motivated by opposing master narratives, and so is quite useful for understanding how narrative influences legal outcome, these opinions do not adequately capture the traditionalist-critical dynamic. The Justices of the Supreme Court and the Judges of the Fourth Circuit differ in the Hamdi case, but none is an oppositionist in the sense of a critical theorist. The uphill climb is significantly steeper for discrete insular minority groups that face a long history of exclusion from the structures of power and who often suffer far from the spotlight.
At the end of the day, Edwards’ piece not only provides fresh thought about the effect of narrative on legal outcomes, but it also prompts me to reflect on my own teaching in legal research and writing classes. The piece vivdly demonstrates the power of narrative frame. Factual framing of a case should not be limited to the Statement of the Case in a brief, or even to that amorphous concept, “theory of the case.” Instead, it should underscore and reinforce the doctrinal arguments contained in a brief, and this is a lesson that beginning law students would do well to learn. For them, coherence in persuasive legal documents must take on deeper meaning. At a very pragmatic level, Edwards’ insights have the power to prompt advocates to broaden the scope of tools available in the quest for justice.
Cite as: Michael Cedrone,
On Narrative, Legal Discourse, and Yaser Esam Hamdi, JOTWELL
(April 1, 2014) (reviewing Linda H. Edwards,
Where Do the Prophets Stand? Hamdi, Myth, and the Master’s Tools, 13
Conn. Pub. Int. L. J. 43 (2013)),
https://juris.jotwell.com/on-narrative-legal-discourse-and-yaser-esam-hamdi/.
Mar 3, 2014 Mortimer Sellers
There is an innovative, very influential, and deeply pernicious tradition in English law and jurisprudence equating liberty with license and the rule of law with legal despotism. The beauty of this short chapter by T.R.S. Allan lies in its full implicit refutation of this shared misconception, as found in Thomas Hobbes, John Austin, and H.L.A. Hart, and its shorter explicit repudiation of their gentle contemporary apologist, Joseph Raz. Allan embraces traditional conceptions of the rule of law, demonstrates their central position in British jurisprudence, and makes sense of the doctrines of A.V. Dicey, often misstated as mere legal formalism.
“The rule of law and not of men” in its original, best, and most coherent sense is the antithesis of arbitrary power. This is both a political ideal and a constitutional doctrine: law and government are only legitimate when they serve justice and the common good of their subjects. To legislate, adjudicate, or execute the laws to any other end is contrary to the proper purposes of law, and therefore corrupt. “Liberty” consists in subjection to just laws, made for the common good — not (as some would have it) the simple license to do what one wants.
Prof. Allan makes it clear that there can be no liberty without the rule of law, when the rule of law includes all the procedural and substantive safeguards necessary to contain the private will and self-interest of those in power. This means more specifically that the much-touted doctrine of “parliamentary sovereignty”, or any other form of legislative power, must give way to judicial supervision, when legislation violates rule of law principles, fundamental rights, or reason, in light of the public good.
Constitutionalism and the rule of law are closely related concepts, in that the first exists to achieve the other. Both serve “liberty,” “equality,” and “legality” by preventing public or private oppression. Allan rightly identifies “liberty” as citizenship under the rule of law, “legality” as governance under the rule of law, and legal “equality” as a comprehensive respect for human dignity, secured by the rule of law. The rule of law cannot be reduced to formal equality before the law, but also requires a substantive equality of concern and respect for all persons in framing and administering the laws that will govern them. There is no rule of law when the legal system serves one faction or segment of society at the expense of the others.
This brings up the most important distinction between Raz and Allan. For neo-Hobbesians “the rule of law” is purely procedural — techniques of legal formalism that make the law more certain, for good or ill, according to the intent of the legislator. For Allan the rule of law is essentially substantive — the project of replacing private interests with the public good in framing and administering justice. This latter understanding is more useful, not only because it accords better with the history and current usage of the phrase, but also because it captures the actual value and purpose of law, which is not certainty, but justice.
As Allan explains, when the rule of law is treated as a mainly formal ideal, its connection with liberty consists in restraining discretion. But discretion is an inevitable and at times unavoidable aspect of administering the law. The purpose of the rule of law is not to abolish discretion but to guide it towards its proper end, which is justice. The lesson is not that there should be no administrative or executive discretion, but that discretion should not be arbitrary. The rule of law prevents oppression by constraining arbitrary power.
Liberty, equality, and the rule of law are all powerful and resonant terms, which makes it tempting to misuse or redirect them, as Thomas Hobbes did in the interest of stronger government and stability. But the words’ positive connotations first arose from and properly only belong to their original and more natural meanings, which is why Allan’s argument is so refreshing. He has reclaimed the rule of law for the English legal tradition, and restored old conceptions of democracy and parliamentary sovereignty, to make them once again compatible with the rule of law, constitutionalism, the common good, and justice.
Cite as: Mortimer Sellers,
Liberty, Equality, and the Rule of Law, JOTWELL
(March 3, 2014) (reviewing T.R.S. Allan,
Freedom, Equality, Legality in James R. Silkenat, James E. Hickey Jr., Peter D. Barenboim, The Legal Doctrines of the Rule of Law and the Legal State (Springer, 2014), chapter 11),
https://juris.jotwell.com/liberty-equality-and-the-rule-of-law/.
Jan 29, 2014 W.A. Edmundson
The moral arc of the universe is long. But how long is it? If we measure from the civilizations of ancient Greece and Rome, it is long enough to bring into the fully human fold whole categories that had once been denied equal moral status: notably slaves, women, and people of color, who had sometimes been regarded as hardly more significant, morally and legally, than (non-human) animals. It may be an exaggeration to say that Roman law adhered to a rigid, exhaustive and mutually exclusive bifurcation between rights-holding persons and non-rights-holding things, but the eminent Kant scholar Christine Korsgaard does not deny that Kant was “consciously following” precisely that view (P. 630, emphasis original). In this superb paper, she takes up the task of showing that Kant’s thought contains elements that undermine what she calls “the legal bifurcation” (P. 629) of the world into persons, on one hand, and things, on the other. That task is instrumental to her aim of showing that Kant might consistently have adopted a more respectful view of the moral status of animals, and that the framework of Kant’s thought indicates an attractive way of understanding what that third status—of neither person nor mere thing—might be.
Working within Kant’s general account of rationality, agency, and personhood, Korsgaard proposes that we recognize a third category of morally significant being: that of creatures who are not mere things, and yet are not persons either. The tantalizing suggestion is that at least some animals populate this third category, and that they are not apt objects of ownership, at least not in the usual sense. This of course is contrary to Kant’s statement in Anthropology from a Pragmatic Point of View:
The fact that man can have the idea ‘I’ raises him infinitely above all the other beings living on earth. By this he is a person; and by virtue of the unity of his consciousness, through all the changes he may undergo, he is one and the same person–that is, a being altogether different in rank and dignity from things, such as irrational animals, which we can dispose of as we please.
Kant’s official view is not so crabbed as to deny—as Descartes did—that animals can feel; but it is not so generous as to hold—as Bentham did—that feeling, rather than thinking, is all that morally matters. Korsgaard wants to show how Kant could get over onto the right side of history (without surrendering to Benthamite sentimentalism).
Even so, taking animal feeling into account is Korsgaard’s key move. Reason does not—and cannot—give us direct access to a noumenal world of absolute value. As rational agents, the goods we choose to pursue are ones that are in a sense relative to us, and to our animal nature as feeling creatures. But our rationality requires that we claim absolute value for our ends, in the sense that what we deliberately value gives everyone a reason to promote what we, by our choosing, necessarily claim to be valuable. Our rationality thus is an expression not only of our membership in the Kingdom of Ends, it is also an affirmation of our “animal spirits,” as it were.
This understanding of the involvement of feeling and reason in our makeup furnishes grounds for respecting feeling beings who, nonetheless, lack a “transcendental unity of apperception,”and who, therefore, are not capable of personhood in the proper sense of the word. For Korsgaard, the capacity for feeling is evidently tied to the possibility of there being a “good for” a feeling being; and the good-for “buck” passes into reasons for action on the part of members of the Kingdom of Ends.
Korsgaard acknowledges that much more needs saying to develop a complete account of the moral status of animals. She also acknowledges that her reading does nothing to elevate the moral status of non-feeling objects. The link between having feelings and having a “good” is not explained, and an Aristotelian teleological account of having a good is not available to Kant. (Kant’s metaphysical scruples govern here too, as she points out.) But can’t plants and lower invertebrates be said to have a good, despite lacking feeling? Plausibly, their good makes no (or much lesser) claims. Feeling, then, seems to have an implicit role beyond that of merely specifying an aspect of a creature’s good. If that thought is combined with the burgeoning evidence that at least some animals do possess some rudimentary conception of self, it may begin to appear that what ought to go is not only bifurcation, but trifurcation and—in fact—the very idea that “bridge claims” (P. 635) connecting categories of entity with an internally homogeneous moral status are what we really need. Compare the moral status of children. These undoubted members of our species are allotted greater or lesser rights and duties based upon relatively fine-grained (though arbitrary) presumptions about degrees of moral fitness—and in application even these yield to finer-grained, multi-dimensional judgments about the individual. Why not regard the whole matter of moral status as one not of category but of degree?
Korsgaard elsewhere argues for a surprisingly stronger “pro-animal” position. In the chapter, “Interacting with Animals: a Kantian Account,” in the Oxford Handbook of Animal Ethics, she concludes:
We may interact with the other animals in ways to which we think it is plausible to think they would consent if they could—that is, in ways that are mutually beneficial and fair, and allow them to live something reasonably like their own sort of life. If we provide them with proper living conditions, I believe, their use…perhaps even as providers of wool, dairy products, or eggs, might possibly be made consistent with that standard. But it is not plausible to suppose a nonhuman animal would consent to being killed before the term of her natural life is over in order to be eaten or because someone else wants the use of her pelt, and it is not plausible to think she would consent to be tortured for scientific information. (P. 110)
A surprising thing about this is that it follows in the train of an argument that non-human animals are incapable of claiming standing as ends in themselves, and are incapable of genuinely consenting to laws of interaction, for they are incapable of choosing whether or not to interact with us. It is unclear how much of this incapacity is assignable to the vulnerable situation of non-human animals, and how much to the rudimentary nature of their intellects. Other entities that are incapable of consenting presumably are not entitled to the benefit of this sort of counterfactual contractualism even if they are creatures that can be said to have a “natural” good. Plants, for example, can’t easily be imagined to consent to being burnt or cut to pieces for human purposes, although they might imaginably consent to giving up their fruit.
Why are some creatures who are incapable of consent, but are of such nature that their lives can go better or worse, entitled to the benefit of the counterfactual test, and others not? The answer has to be that plants and other unfeeling things (some of them animals) lack what is minimally required for moral status: the capacity to feel. When we humans make the claims that establish us as members of the Kingdom of Ends we do so not only on behalf of our rationality but our sensibility, and in doing so—on Korsgaard’s account—we legislate that there is reason to respect the feeling-bound good of all feeling creatures. Korsgaard does not explain why, in staking claims for ourselves, we do not simultaneously stake a claim for ourselves simply as natural organisms. Again, sensibility—as contrasted both to bare organism and to bare unfeeling sentience—seems to do a lot more work in Korsgaard’s account than Kant ever expected or wanted of it. We have to hope that Korsgaard will further pursue, on her own behalf, the questions she has taken up here, on Kant’s—though it is unclear whether the result will be a view that can truly be called Kantian.
Cite as: W.A. Edmundson,
Animals, Rights, and Legal “Bifurcation” In Kant, JOTWELL
(January 29, 2014) (reviewing Christine Korsgaard,
Kantian Ethics, Animals, and the Law, 33
O.J.L.S. 629 (2013)),
https://juris.jotwell.com/animals-rights-and-legal-bifurcation-in-kant/.
