Jan 21, 2015 Robin West
Danielle Citron’s Hate Crimes in Cyberspace is a breakthrough book. It has been compared, and with good reason, to Catherine MacKinnon’s Sexual Harassment of Working Women. The book makes three major contributions. All are central to furthering the equality of women and men both in cyberspace and elsewhere.
First, Citron convincingly catalogues the range of harms, and their profundity, done to many women and some men by the sexual threats, the defamation, the revenge pornography, the stalking, and the sexual harassment and abuse, all of which is facilitated by the internet. Women who blog on virtually any topic, certainly on feminist or sexuality sites but also on technical software or engineering sites, or who simply have a presence in cyberspace in any of the various forms the medium permits, can be and frequently are targeted for extreme forms of vitriolic and sexualized assaults, not just from a few isolated and psychopathological bad apples, but by large groups of linked commentators, who quite intentionally and explicitly spread the cyber-hate through organized, networked technologies, and to virtually all corners of the cyberspace. The assaults threaten the victim and sometimes her family members—particularly younger sisters—with sexual injury, rape, dismemberment and murder, and are sometimes accompanied by personal information such as place of employment and addresses. The defamation comes in the form of claims that the victim is incompetent at her work or in her career, hyper-sexualized (e.g., that she enjoys sex with strangers, with home addresses included), or dishonest or fraudulent, which are spread widely, and are intended to professionally injure and humiliate the victim in her workplace or school, and prevent her advancement or hiring in her field. “Revenge pornography” refers to the publication for public consumption and without the victim’s permission of nude photos or videos which may have been made with the victim’s knowledge, but are then widely distributed for the express purpose of exacting revenge, usually because of a break-up. Stalking is in the form of constant harassment and surveillance on line, with the threat of it spilling over into offline stalking as well. The harassment and abuse take all of these forms as well as others: chat rooms created and dedicated to the destruction of the victim’s reputation, or to the expression of hate and sexual insults, or to the mounting of threats intended to intimidate or terrorize.
The harms occasioned by this online conduct are sadly predictable. First, and most concretely, or demonstrably, are the harms to reputation, vastly magnified by the reach of the internet into personal and professional life. A young woman who has been targeted in this way will find it difficult to procure a job or a promotion, or simply to garner respect: the sexual claims, pictures, and videos will be the first page of hits, when her name is Googled by potential employers, colleagues or school administrators. Doing some sort of Google search, or at least assessing a potential employee’s or student’s impact and stature in social and professional online media, are increasingly common practices by HR departments and hiring committees, as well as admissions departments in graduate or professional schools. High-performing students or applicants do not get the jobs, fellowships, or internships for which they would otherwise qualify, causing significant damage to the launching or furtherance of their careers. More pervasive, and in some ways more damaging, however, victims of cyber-harassment are simply terrorized. Women who have been attacked online with threats of assault, rape and murder, particularly when identifying locating information is attached, are not safe in their homes, neighborhoods and workplaces. Some re-locate, pulling their own children out of schools or, if they are themselves still children, their parents are forced to make the move to another state, thus interrupting their own lives and jobs, in order to try to calm the fear instilled by the online assaults. Emotional and psychic harms are pervasive and penetrating: a woman or girl is robbed of her self-possession, her security in her own body, her self-esteem, her peace of mind, and essentially her comfort in her world; she is alienated from her own sexuality, which becomes a source of anxiety and threat; she feels her future slipping away and out of her control; she loses her sense of oneness with other human beings, either in community, neighborhood, workplace, as the “other” becomes a source of threat and harm rather than nurturance and support. She is cast apart, and then she casts herself apart, from a mutually helpful community of reciprocity when she becomes a target and a victim. Her identity in a place she values—cyberspace, and the communities of which she is a part in that world—shifts from whatever she was—student, lawyer, software engineer, technician, teacher, wife, lover, blogger, friend —to what she is repeatedly called: cunt, slut, whore, bitch, liar, fraud, incompetent, stupid. The economic and professional or vocation harms are equally profound. She may lose clients and customers and ultimately curtail her career, if her business has been ruined by the online defamation and harassment. She can’t find a job, or seek a promotion, if she can’t risk her current or potential employers doing a Google search. She lives in fear of discovery. And lastly, her civic participation—including her freedom of speech—is drastically curtained. She shuts down her blog. She closes her social network accounts. She quits commenting or guest-appearing on blogs of others. She stops making public appearances. She cannot risk the danger, or take the harassment. So she tries to close down her public and cyber persona. She retreats: out of cyberspace completely, and out of the public sphere likewise, all in the hope, usually frustrated, that such a retreat will end the abuse, threats, and harassment. She tries to regain her private life, in other words, by making it smaller: by sacrificing her participation in whatever public and cyber worlds in which she had once found a welcoming home. All of this, Citron successfully shows, both through case studies and a very careful parsing of the available statistical data.
The second contribution, and the bulk of the book—the middle third to half—is a legal analysis of these harms. Citron begins by comparing the current status quo regarding our understanding of gendered harms in cyberspace with the legal environment surrounding domestic violence and sexual harassment thirty or twenty years ago. Then, as now, sexual harms up to and including physical violence suffered by women were both widely denied, and, where denial couldn’t be effective, simply trivialized, and where they couldn’t be trivialized, simply outweighed by constitutional concerns of greater magnitude on the side of non-regulation. Sexual harassment on the job was regarded as part of the rough and tumble that women would have to endure in exchange for their hubris in assuming a role in the public world of work, or alternatively as a part of our much valued free speech against our employers or academic institutions. Domestic violence was regarded as, alternatively, a man’s prerogative, a woman’s shame, the woman’s fault, the way of the world, or the necessary price all parties pay for a much to be desired privacy, and marital rape was simply an oxymoron—consent to sex within marriage having been rendered at the altar, a religious duty or simply part of the marriage compact. All of these modes of dismissing gendered harms is echoed in today’s legal climate surrounding cyber sexual harassment. Cyber-harassment is, first, relentlessly cast as the victim’s fault by the perpetrators themselves: fully deserved punishment for some perceived slight, whether the “slight” is breaking off a relationship, not being available for sex, or simply speaking one’s mind. The abuse itself is then routinely dismissed by what passes for legal analysis by libertarian commentators as the relatively trivial cost of the much-to-be-desired wild-westiness of the unregulated internet, or alternatively the perhaps regrettable but nevertheless unavoidable price of the free speech rights we all enjoy. Meanwhile the victims are dismissed as whiners, or thin-skinned, or overly sensitive, as incapable of manning up to the slings and errors that go with the territory on the internet, as too dull or humorless to take a joke, as too prone to hysterics to recognize harmless or pathetic barbs when they see them, and as incapable of understanding the importance of First Amendment values. As Citron says, we have been here before.
Citron rehearses the parallel history of the treatment of domestic violence and sexual harassment, however, to make a constructive and re-constructive point, not just a descriptive one: the national conversation was profoundly altered by legal campaigns to construe domestic violence, marital rape, and sexual harassment as harms, as crimes, and as violations of women’s civil rights. Those campaigns of course are ongoing and the work is incomplete, but it is undeniable that the conversation has shifted. Domestic violence may be under-policed and under-punished by the NFL as well as by prosecutors, but it is no joke, as it was for decades; marital rape is under-prosecuted, but it is nevertheless a crime, whereas before 1970 or thereabouts it was not, and sexual harassment law may be riddled with problems but it exists, and there’s less sexual harassment because of it. The same, Citron argues, could be and should be happening here. We need to massively shift the conversation, and law will need to play an outsized role—perhaps the major role—in doing so. With concentrated advocacy in courts, and legal and political movements in state legislatures and Congress, the legal construction of this conduct can change: cyber hate is not funny, trivial, or harmless, and it is not protected speech under the First Amendment. Much of the behavior she describes, of course, is already criminal and most of it is at least tortious. Assaults and threats in cyberspace that are intended to put a victim in fear and which in fact do so are already crimes, no less than if those threats were simply published in a newspaper; cyber-stalking is already criminalized in most states; the intentional dissemination of false statements that interfere with someone’s career advancement is defamatory and even libelous per se, as are claims of hyper-sexuality, and almost all of the behavior Citron catalogues constitute examples of the torts of assault, intentional infliction of emotional distress and invasions of privacy. Some of it, furthermore, although not all or even most of it, Citron shows, are also already violations of various civil rights laws, at both the state and federal level: this behavior interferes with the ability of women, and some gay and straight men, to access their rights to contract, to work, to own property, to free speech, and to an education, and does so largely because of gender or sexual orientation (or perceived sexual orientation). It is thus an affront to the value of equality that is the goal of our civil rights laws, including Sections 1981, 1983 and 1985 actions at the federal level and their state law counterparts. Citron does a thorough and admirable service of clearly delineating the avenues for legal relief that already exist, thus belying the widely held belief that this behavior is totally unregulated and therefore beyond the law’s reach. Cyberspace is not a completely unregulated wild west, and perpetrators of hate crimes as well as their victims need to know that. Citron calls for greater enforcement of all of these laws that already target hate crimes in cyberspace, as well as of ordinary crimes such as stalking, or torts such as defamation, and intentional infliction of emotional distress, as well as expanded possible legal avenues for relief against those service providers that facilitate it (with a particular focus on those providers that encourage the publication of harmful and hurtful speech, and then charge a fee to the victim to have the offending material removed). That greater enforcement would require not just greater technical and legal savvy on the part of victims and their advocates, but perhaps most importantly, focused educational campaigns directed at police forces and prosecutors’ offices.
Much of the behavior catalogued, however, is not touched by law, and Citron devotes much of this part of the book to a discussion of possible reforms—and objections that might be raised to them—that would strengthen the victim’s hand. Tort law is prohibitively expensive even where the cause of action is theoretically available, criminal law is undercut by prosecutorial indifference or ignorance, existing laws that do specifically target some of this behavior, such as cyber-stalking laws, are under-enforced, and civil rights laws, both at the state and federal level are under-inclusive: they often don’t cover gender motivated hate crimes, for example. Furthermore, much of this conduct, even though clearly criminal or tortious, is outside the reach of the law simply because the perpetrators cannot be identified. And, some of the conduct is simply not criminal or tortious at all: state harassment and stalking laws often target only communications sent directly to the victim, rather than communications about the victim sent to the world, and revenge pornography is not specifically targeted by any particular body of law. (Citron and Mary Anne Franks from Miami have proposed model legislation that does criminalize revenge pornography, and the book details both that campaign, and the experience of states that have adopted it.) Citron suggests reforms to existing state laws that target harassment and stalking that would update them, to bring cyber hate crimes within their scope, and would make clear their grounding in civil rights ideals: cyber-harassment and stalking interfere with the rights we all should enjoy to access an education, to pursue employment, and to enjoy participatory rights in the public sphere. Civil rights laws at the federal level need to be strengthened, and the logic of the causes of action that might be brought under them both against private parties and against state officials clearly delineated. Citron does all of this in the book, along with proposed legislative reforms that would make those laws better vehicles for remedying violations. She adds a similar discussion, by necessity more technical, regarding the possible liability of service providers and site operators, comparable to the liability of employers for sexual harassment on the job, again both with respect to laws already on the books, and possible reforms.
The third contribution, and last third of the book, is her discussion of possible objections, and then her turn to extra-legal reforms, with a particularly helpful focus on the roles of educators, parents, and the providers themselves (“Silicon Valley” for short). The bulk of the section on objections is devoted to responding to First Amendment challenges. The chapter on schools, parents and Silicon Valley sensibly discusses the actions these private actors and parties can take, and singles out for praise those providers and Silicon Valley companies, such as Facebook, that police against hate speech on the sites and platforms they sponsor. These discussions are immensely valuable. The discussion of First Amendment objections is thorough, and I believe completely convincing; indeed, the only objection I have to it is that she gives it too much weight. The discussion of the role of private parties in changing the culture is wise and in a way reassuring: there is something all of us can do, as educators, parents, and providers, and Citron clearly and carefully outlines suggestions that would go some way toward changing this world, whether or not with the law as a partner.
The book thus serves as a blueprint for what Citron insightfully calls a new civil rights movement. It gives legal representatives and victims a roadmap for charting out legal actions that can be taken to halt the abuse being currently suffered, and to compensate for past harms. It gives state and federal legislators a menu of options for strengthening the law in this area, so that cyberspace can be a safe as well as robust domain for the expression of views on all subjects. It responds to First Amendment worries about the possibility that her proposed reforms might chill valuable speech, and it suggests paths for interested private parties who want to affect the trajectory here outside the law. It’s a tour de force and I believe it will succeed. It will change the law, change the conversation, and change attitudes toward and regarding this extraordinarily abusive and harmful behavior. It will strengthen women’s civil rights, and thus strengthen women’s equality and at core, it will be a significant step toward ensuring women’s safety in the public space of employment and education, as well as in cyberspace and the home. This is a book to celebrate, to study, to argue over, and, mostly, to use.
Unanswered Questions
The book also, though, raises a host of questions it doesn’t come close to answering (as did MacKinnon’s Sexual Harassment of Working Women). It describes horrific harms, and, like a video of a woman being knocked out cold in an elevator by her football-playing fiancé, it leaves the reader horrified. But there are three things it doesn’t do, which in turn delineate areas where I think future scholarship could contribute. The first is descriptive or explanatory: why? Why is there so much hate speech online? This book provides no answer. The second is prescriptive: what could we do about this, short of better employing the criminal justice system, feeding still more defendants into an overcrowded penal system? The book seemingly assumes a well-functioning criminal justice system, capable of meting out sensible sentences to yet another class of lawbreakers. The third is theoretical: why has the law been so slow to recognize, much less provide recourse for, these harms occasioned by some citizens on others? The book doesn’t provide an explanatiaon. I’ll comment very briefly on each.
First, on the cause of the hate crimes themselves. Citron shows, and argues, that the internet magnifies the consequences of hateful conduct. Perpetrators are shielded to some degree by anonymity, and victims are not confronted in real space and time, thus giving perpetrators some sense of detachment both from the nature of their actions and their consequences. But this doesn’t explain its origin. Citron is a lawyer and legal academic, and not a sociologist, so perhaps it is simply beyond the scope of the project. But it is a question that the book implicitly poses from start to finish. Where in god’s name is all of this hate coming from? Why are these people so bent on destroying the reputations, the careers, the sense of safety, the pleasures, and the speech of women who are total strangers to them? Is some of this rage prompted by the targeted women’s relative privilege and success? Does the successful female law student bound for a high visibility career in public service or a well-paid successful career track in the private sector trigger rage in men, some of whom may feel she has displaced them, and so much rage that they are prompted to sexual assaults? Or, do women, particularly those on feminist sites, or those who post on sexuality issues, provoke fury by sometimes implicitly removing themselves, and perhaps their readers, from the sexual marketplaces of availability? Does that alone provoke rage, by seemingly shrinking the opportunities perceived by their perpetrators and tormenters for sexual opportunities or release? More simply, is this a backlash against strong women speaking their minds—women who but for the availability of the internet, might be servicing men’s needs, both sexual and domestic, rather than expressing opinions on the world’s woes? And why is the fury so sexualized? After decades now of voluminous scholarship on pornography, rape, and sexualized violence, we are woefully short of answers to these questions. Citron’s book though raises the question anew, and if anything with a greater sense of urgency. What she shows is that the sexual assaults, and the fury and rage behind them, are not deniable, they are not jokes, they are not harmless, women are not complicitous in their creation, and they clearly are obstacles to women’s equal participation in public spheres. Surely we would be better off all around if we could not only criminalize some of this behavior, but if we could understand it as well.
Second, on Citron’s prescriptive arguments for reform. Any number of otherwise sympathetic readers will find troubling Citron’s reliance, and possible over-reliance, on criminal law as the hoped for legal response to much of this behavior. We already over-incarcerate our co-citizens. We put people in prison for trivial offenses, for way too long, and in inhumane conditions. This book however (and in contrast to MacKinnon’s anti-harassment and anti-pornography campaigns that rigorously eschewed reliance on criminal law) seeks yet another expansion of the role the criminal justice in maintaining social order. There will be strongly felt resistance to it for just that reason. Are there alternatives to the criminal law, and to criminal justice, for coming to grips with these behaviors? What might they be? Citron suggests some answers in her last chapter, but those suggestions are a little too fleeting and a little too late—perhaps they could have come earlier and more prominently. Internet service providers could require all contributors to identify themselves. Schools could more actively encourage civil online behavior. Parents should monitor, and where appropriate punish, their children’s misogynist or hateful online behavior. And so on. And, while norms are changing, perhaps there is a necessary role for more robust enforcement of the criminal law. But it too carries its own injustices, and the book might have acknowledged as much. More generously, the development and conceptualization of non-penal responses to these harms, I believe, is one of the large and most important areas of inquiry the book opens, but doesn’t adequately address.
And finally, on legal theory: the book gestures toward, but doesn’t fully develop, why it might be that the law has been so slow to respond to these obvious threats to the safety of half of its subjects. The behavior itself, after all, is not that different from the non-cyber assaults, threats and defamatory utterances on the streets, in homes and workplaces, all of which are fully understood to be crimes, torts, or violations of civil rights. Some of the harms suffered by the same sort of conduct in cyberspace is if anything worse. So, where are the police, the prosecutors, the courts, the judges and the lawyers? Part of the explanation for the absence of robust enforcement of laws against this behavior is legal, as Citron shows: the law is inadequate and in need of reform. Part of the explanation is technological: the perpetrators are anonymous, which raises obvious difficulties, but also, to understand the consequences of the behavior requires a degree of technological sophistication still beyond the ken of police, prosecutors, bench, and bar. And a part of the explanation is constitutional: there is a widespread if erroneous belief that this conduct is “speech” and therefore “protected speech” under the First Amendment, and therefore beyond the reach of tort, criminal, or civil rights law. But there are other currents at work as well, that run a little deeper than all of these. Let me just name a few, all of which fall under one umbrella: for various reasons, or at least for the following three reasons that I’ll briefly catalog, these harms are likely to be unnoticed, or invisible. Therefore, the attempt to articulate them is likely to be shut down or muted.
Why has the occurrence, and even the prevalence of these harms been so relatively unnoticed? First, like domestic violence, although in very different ways, cyber violence and cyber harms are almost entirely “privatized”—by which I mean that they occupy a space beyond the immediate purview of the state. Criminal law exists primarily to keep the King’s peace—not to rectify injustices between private parties. Criminal cases, after all, are actions brought by the state, not victims, against defendants who have transgressed against the state’s norms. Cyber violence, though like domestic violence, doesn’t really threaten the King’s peace: domestic violence doesn’t threaten the King’s peace because it takes place within a private space ruled over by a different sovereign—the patriarch—and cyberspace doesn’t threaten the King’s peace because it takes place in a free Hobbesian wilderness not ruled over by anyone, or at least we like to think it does. In both realms, though, the home and cyberspace, in our popular imagination, as well as in the ruminations of any number of legal commentators, law has no role to play. The patriarch rules the home, and can punish accordingly, and in cyberspace, as in a Hobbesian world, the naturally strong rule, and as well they should—the strong in cyberspace, after all, have only words at their disposal, not sticks and stones, and can do no real harm to the King or his subjects.
The second reason for the relative invisibility of these harms, I believe, is the relative degradation of tort law. Whether or not the kinds of behavior Citron describes constitute crimes or civil rights violations, they are all, clearly, torts: they are intentionally harmful acts by an actor against a victim that cause injury. Tort law, however, as a body of law that seeks to provide redress for private wrongs, has been widely discredited and its efficacy badly compromised by all sorts of forces, and consequently, it simply doesn’t present itself to the minds of victims or their counselors as a credible vehicle for pursuing justice against those who wrong them. Tort is viewed academically as a body of law that reallocates the cost of accidents, not a body of law that provides a path toward justice for victims of intentional wrongs, and it is viewed popularly as a body of law that facilitates ungrounded complaints by people who refuse to take responsibility for their own actions, brought by greedy trial lawyers looking to exploit the suffering of others. As Professors Zipursky and Goldberg have shown in their groundbreaking scholarship on the subject, tort law has largely lost its original meaning: a body of law that provides those whose legal interests, such as an interest in bodily integrity and freedom from fear, have been infringed, with a vehicle for recourse against their wrongdoer. We are all the worse for it, and women active in cyberspace, and who suffer because of that fact, perhaps more than the rest of us.
In the area of gendered harms, though, tort has been even further devalued for an additional reason, of direct relevance here. Feminist legal reformers of the 1970s and 1980s, and most prominently Catherine MacKinnon, quite consciously turned away from tort, and to civil rights, and likewise away from the concept of harm, and to the concept of equality, when they conceptualized the wrongs of sexual harassment. There were good reasons to do so, and there was much to be gained through that turn, but there was also a price to be paid, and Citron’s book perhaps inadvertently shows what that price has turned out to be. Briefly, by turning to equality and civil rights, rather than by seeking to expand upon the utility of tort remedies, feminist reformers forewent the opportunity to focus on the physical and psychic injuries occasioned by harassment and assault in all spheres: employment, the home, the street, and cyberspace all. The civil rights action, unlike a possible tort action, requires a showing of cognizable harm to pocketbook interests, rather than harm to the psyche, reputation, or emotional wellbeing. The very idea of the civil right to be free of sexual harassment is consequently tied to economic equality, and hence to the workplace, where incomes are threatened, rather than to psychic or physical injury, wherever it occurs. The turn to civil rights, then, in the development of this area of law, carried an educational and political opportunity cost: tort actions permit and require the claimant to delineate the exact nature of the injury, whether or not it is tied to lost income. That delineation might have educated an otherwise oblivious public to the harms of sexual harassment that go beyond the monetary, and well beyond the particular and peculiar locale of the workplace.
And lastly, the cyber harms that Citron delineates are invisible in part simply because they are sexual assaults. Sex occupies a peculiarly venerated status in our contemporary cultural imagination, included our legal-cultural imagination. Our current zeitgeist is relentlessly “sex-positive:” both in pop cultural and in academic life, sex itself—the activity, that is—can simply do no wrong. “Sexual assault,” in a thoroughly sex positive world, is nearly oxymoronic: regarded not as assaultive and wrongful, but as the result of a sex panic, or of repressed desire coupled by a Freudian displacement of self contempt. Sex sells, but it also legitimates: there is a widely shared interest among sexual actors, sexual predators, and the .01 percent alike in maintaining the perception that with a celebrated right to sex, all is right in the world. Claims of sexual assault upset that venerated status. It is not entirely surprising that they are now met with a wave of skepticism at least as ferocious as that which met their nineteenth and eighteenth century counterparts.
So, for all of these reasons—the Hobbesian natural world of the internet, the decreasing viability of tort as a body of law meant to provide justice for those whose legal interests are harmed by private actors, and the construction of sexual harassment as a civil rights violation limited to the workplace and schools —the harms done to women and men by virtue of sexual assaults on the internet are likely to go unreckoned. That is clearly changing: the scholarship (and advocacy) of both Danielle Citron and Mary Anne Franks has already gone a long way toward making those harms visible. This book makes a powerful case that we must do something about this conduct, and that and we must use law to do it. There simply must be a more robust legal response to harmful, hateful, and misogynistic behavior, in cyberspace, no less than in workplaces and the home. That is a huge contribution, to women’s equality, to the quality of our social and civic life, and to the justice of our law.
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/.
