Law in the Neighborhood of Morality and Convention

Jan 20, 2012 W.A. Edmundson

W.A. Edmundson

Law is related both to morality and to convention. Differently related, surely.  But how, exactly?  That should be easier to explain if we could say how morality and convention are related to each other.  But how easy is that?

Even as children, almost all of us understand the difference between saying that something is wrong, and saying that something “just isn’t done around here.”  We would say that rape is wrong no matter how commonly it occurs; but we wouldn’t say that passing the decanter of port to the right was wrong even if we found out that, where we happened to be, doing so breaches a hallowed custom.  Not wrong, strictly speaking, anyway, if we mean morally wrong.  We all understand the difference, at least until we’re asked to explain it.  (“And which kind are legal judgments?” –one might wonder: see answer below.)

Nicholas Southwood (Philosophy, Australian National University) considers two general ways of understanding the commonsense, non-overlapping distinction between moral judgments, on one hand, and “conventional normative judgments,” on the other –such as the two contrasted above.  One way he calls the “Form View,” the other, the “Content View.”  A Form View explains the distinction in terms of a difference in underlying logical form: moral judgments are universal, or unconditional, or something like that, while conventional normative judgments are not.  A Content View distinguishes the two in terms of a difference in what the two kinds are really about, whatever their form.  Moral judgments on this type of view are about respect for persons, for example, unlike conventional normative judgments, which are about respect for appearances or for tradition or something of the kind.

Southwood rejects both of these ways.  They are open to counterexamples and, anyway, “fail to be explanatory on the right kind of way.” (P. 4.)  He advances an alternative, the “Grounds View,” which, as the name suggests, casts the difference as one having to do with what, in the speaker’s mind, justifies the judgment.  When uttering a moral judgment, a speaker does not invoke social practices, unless in some derivative manner; but when uttering a conventional normative judgment, the speaker’s grounds for saying what she says have something, necessarily, and non-derivatively, to do with some social practice or another.  In advocating the Grounds View, Southwood intends to answer those who have taken the failures of Form Views and Content Views to warrant skepticism about the distinction.

Southwood’s focal point is a distinction between two types of normative judgments.  Moral judgments are all normative; but not all conventional judgments are.  He gives the example of a group of friends who conventionally meet at a certain spot at a certain time if they wish to lunch as a group.  Conventional normative judgments are normative, in the sense that they are typically uttered with the intention of conveying the idea that some certain kind of conduct is required or, as Hart put it, “in some sense non-optional.” (Hart 1994, 82.)  Conventional normative judgments are not about any convention; rather, they are constitutive of them.  But not all normative judgments constitutive of a convention are conventional normative judgments as Southwood intends the term; for their normativity involves “a richer set of reactive attitudes” (P.  3) than those that are appropriate when, for example, someone moves a rook as though it were a bishop, not to cheat, but because she isn’t playing chess.

The distinction in question is between types of normative judgments and not between types of norms.  Southwood, surprisingly, finds the distinction between moral norms and conventional norms to be relatively easy: “conventional norms are constellations of (certain kinds of ) normative attitudes, whereas moral norms are not (even in part) constellations of normative attitudes.” (P. 3, n. 4.)  But in saying that, he does not rule out “conventionalist meta-ethical views,” viz. that all moral judgments are at bottom conventional normative judgments that we erroneously project “into the world” beyond social practice. (P. 25 n. 27.)

What is at issue then is a distinction that might better be put as one between types of judgings (attitudes toward propositions) rather than judgments (propositions or assertions).  This becomes clearer when Southwood offers his blanket objection to all varieties of the Content View.  Even if the content of a judgment qualifies as moral under a Content View criterion, what is “in my mind” (P. 11) as I make that judgment may be a justification whose relation to that content is mediated by a social practice, such as law or custom, and thus the judgment I make is not in fact a moral judgment.  This, he says, shows that any content criterion must fail.  (Building proper motive into the content will not, as Southwood rightly points out, solve the problem.)  A quizzical expression may have commandeered the reader’s brow by now.  The commonsense distinction on first appearance seemed to be one between the moral and the merely conventional, not one between kinds of rationalization one might have for making normative judgments.  (On the subject of what is sufficient in order for a normative judgment to be moral one he is deliberately silent.)  But hear him out.

Since the problem Southwood frames is one of classifying acts of judging, the Grounds View looks tailor-made to solve it.  A judging is a moral judgment only if the grounds the judger has in mind, or would offer if pushed, have nothing non-derivately to do with social practices.  (If the practice serves only to “activate the conditions” (P. 22) under which a moral principle applies, it’s derivative.)  A judging is a conventional normative judgment only if the grounds the judger has or would offer inescapably refer to a social practice (and maybe to other things as well).  Put another way, “moral judgements are essentially practice-independent.  Conventional normative judgements are essentially practice-dependent in the sense that they are necessarily grounded, at least in part, in presumed social practices.” (P. 21.)

From this perspective, legal judgments – made by anyone, whether an officially robed judge or not – are never (or hardly ever) moral judgments.  The judgment that there is a general duty to obey the law is a moral judgment whose content refers to a social practice, but whose grounds do not. (P. 25.)  Ordinary legal judgments aren’t moral judgments because the existence of a social practice is an essential part, even if only a part, of what a non-idiosyncratic judger has in mind when it comes to justifying her making the judgment.  The social practice may be merely customary, but it has to be there for any judger, save only one who believes that what morality requires can proprio vigore be law.  And no one nowadays believes that: not contemporary natural lawyers like Finnis and Murphy, not Dworkin, and certainly no legal positivist.  “We have a certain social practice around here” is going to be at least part of anyone’s ground for judging that a given norm, whatever it may be, is the law around here.

So, has Southwood turned up something that might serve as common ground uniting legal theorists of all stripes?  No.  All should agree that legal judgments aren’t moral judgments, but he has defined conventional normative judgments in a way that allows, but does not require, moral considerations as well as social practices to figure among their grounds.  Even if all can agree that legal judgments are conventional normative judgments, the familiar dispute about whether their grounds may include, must include, or must not include moral considerations will remain –but perhaps in better focus.

Leaving aside Southwood’s defense of the practice-independence of moral judgements, what of the possibility that conventional normative judgments are, at the end of the day, practice-independent too?  If asked to justify his judgment that it is wrong to pass the port to the right, a don might appeal solely to some transcendent general value that is instantiated by his social practice.  Yet, even so, we might want to say that his was a conventional normative judgment, all the same.  But if we do say that, we reject Southwood’s formulation.  He says, in defense, that to justify conventional normative judgments in wholly practice-independent ways is to  “leave out … the fact that the social practices are our practices, that they are ones to which, rightly or wrongly, we are in some important way attached … [and to] divest[] social practices of their constitutive roles in our lives.” (pp. 26-27; emphasis in original.)

If we think of legal judgments as conventional normative judgments, Southwood’s defense of their practice-dependence is bound to put legal theorists in mind of Hart’s internal point of view. (Hart  1994, 88-90.)  But Southwood’s description of the participant perspective lays it on a bit: “In internalizing and orienting our behaviour in accordance with social practice, we express a sense of affinity with our fellows by affirming a set of values that have made us who we are, individually and collectively.” (P. 30.) Did Hart imagine that legal insiders typically identify so strongly and stickily with legal practice (“Isn’t reason-giving enough?”)?  Although Southwood is keen to the difference between a participant’s and an outsider’s standpoint, the article does not make it plain whether outsiders are capable of making conventional normative judgments at all. (In correspondence, the author has assured me that “outsiders aren’t capable of making conventional normative judgements (of the kind that constitute the conventional norms of the ground with respect to which they are outsiders).”)

Therefore it is not immediately obvious how to reconcile Southwood’s account of legal judgments with Raz’s of detached legal statements, which acknowledge and convey but do not endorse the norms they state. (Raz 1979, 153-57.)  “According to the Grounds View, what is essential to conventional normative judgements is that the judger judges that the relevant principle is accepted within his own group or community.” (P. 33.)  Southwood does not, and could not, claim that moral judgments and conventional normative judgments exhaust the category of normative judgments.  Might  it be that legal judgments, for many or even most of us, are normative but in neither the moral nor the conventional normative sense?

Hart, H.L.A., The Concept of Law, 2d. ed. with postscript (Clarendon Press 1994).

Raz, J., The Authority of Law (Clarendon Press 1979).

The Human Condition And the Liberal Order

Nov 30, 2011 Sean Coyle1 comment

Sean Coyle

Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.

Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs.

Socialists rightly criticize conservatives for their failure to respond to vulnerability. Many of the things that make people vulnerable (economic poverty, health, treatment of minority groups) do not abate in the face of increased opportunity. A social philosophy which leaves people to sink or swim will not render vulnerable individuals more resilient in the face of their vulnerabilities, nor force them to become resilient enough to overcome them. Autonomy for Kant was never a condition of being that human beings actually manifest, but an aspirational condition that we everywhere fail to manifest. Is it wise to found a politics upon a character (the autonomous subject) that does not exist? Socialists connect vulnerability with injustice. Following their instinct for greater organization, they demand that help must be available to those who are powerless to take charge of their situation. Difficult to argue with, there is however no doubt that this creates new focuses for dependence. Socialists frequently confuse vulnerability with welfare need. Alleviating the effects of certain forms of vulnerability, socialists have therefore encouraged people to become vulnerable in other ways, reliant on systems of support over which they have no meaningful control.

These arguments about the organization of liberal society are constantly at risk of equating liberal order with the removal of vulnerabilities. For conservatives, nothing matters more than the elimination of structures which inhibit freedom. The defeat of this last enemy will allow men to escape all others: surely no one who is the author of his own situation can be afflicted by vulnerabilities? More aware of the enormous range of human vulnerabilities, socialists prefer to put the power of the state behind the effort to mitigate them. Vulnerabilities are directly, rather than indirectly, politicized. Equality is the primary consideration: if vulnerabilities cannot be eliminated, they can at least be neutralized. But socialists may then foster a dream which propagates beyond the confines of socialist ideologies: the idea of the ‘ideally just society’. Everything will be put into the balance! Conservatives and socialists both see vulnerability in all too structural terms. Vulnerability is not natural but ‘done to us’. The right structure – or absence of structure – will overcome it.

Fineman’s article reminds us of the important truth that vulnerability is a permanent feature of the human condition. A politics genuinely attuned to the realities of the vulnerable subject must do more than create modifications to the operation of the market. Its efforts must be directed not simply at the removal of disadvantage or inequality, but must learn to deal with the effects of ‘systems of disadvantage that are almost impossible to transcend.’ (257) It must understand that autonomy is experienced unevenly, an aspiration that ‘cannot be attained without an underlying provision of substantial assistance, subsidy, and support from society and its institutions’. (260) Liberals who are serious about the merits of liberal society must do more to cultivate autonomy. They must come to realize that the success of their political ideals rests upon ‘a more active and responsive state.’ (id.)

In one sense, the development of a more responsive state is not the answer to the problem. Desperately necessary for addressing the growing ‘welfare vulnerabilities’ experienced in the West, a more interventionist philosophy for the state leaves society vulnerable to the danger that liberals have feared above all others: authoritarianism. Flying from the cruelty and indifference of invisible hands, we risk falling into the hands of protective institutions which (in Kant’s view) ‘everywhere’ place ‘restrictions on freedom’, and in the presence of which there is no end to the abuses to which we are vulnerable. Fineman is very aware of the problem (274), but wonders whether it is possible to work toward a conception of an active state in non-authoritarian terms. For myself, I remain pessimistic about this possibility. It would depend upon a means of overcoming another, equally ingrained and ineradicable dimension of the human condition to which Fineman is perhaps less sensitive: the presence of selfish and brutal instincts (in traditional Christian terms humanity’s ‘Fallen’ nature, which Augustine aptly calls the libido dominandi), which operate everywhere to subvert or corrupt even the best human motives and achievements. Political theory since the medieval period has lacked a proper sense of the extraordinarily narrow limits within which human efforts (especially collective ones) can meet with success. Fineman shares with most liberals a much more optimistic sense of what can be achieved. Her analysis is nevertheless relentlessly honest and challenging of what liberals have achieved. It raises important questions that many liberals have neglected or otherwise deflected by their analysis. Most of all, it reframes debates about equality and liberal justice in a new and fresh and urgent way. The importance of its vision should not be underestimated.

The Province of Jurisprudence Determined

Nov 18, 2011 Mortimer Sellers

Robin West’s new book on “normative jurisprudence” should have an immense and lasting effect on American discourse about the law. This volume should be important for two reasons and in two senses of the word should: first, because Professor West has great authority in the American legal academy as an early and much-admired proponent of feminist jurisprudence, law and literature, and critical legal studies; and second, because she is in this volume on almost every point and in almost every way correct about the purpose, value, and nature of jurisprudence and the law.

I distinguish two senses of the word “should” in this way because the central argument West makes is that although both the “is” (predictions about existing power and authority) and the “ought” (justice) matter in understanding the path of American jurisprudence, the latter is more important, and much overlooked.  West calls for a renewed “normative jurisprudence”, by which she means a jurisprudence dedicated to studying not primarily what the law is, but what it ought to be — how to make the law more just.

For the most part West’s advocacy restricts itself to mapping the province of jurisprudence — what “jurisprudents” (as she calls them) ought to be talking about — which is justice. She doesn’t say as much about what justice is or could be in practice. But simply to speak of “justice” or “normative” jurisprudence at all commits West to what she recognizes must amount to a revival of the secular natural law tradition. And she goes further: Robin West embraces the ancient doctrine that laws are and only can be just to the extent that they advance the “common, human good”. Brava!

When West insists that the study of jurisprudence (properly so-called) requires the pursuit of just laws through a better understanding of justice, the human good, and human nature, she repeats simple truths well stated and restated by Aristotle, Marcus Tullius Cicero, Thomas Aquinas, Thomas Paine, John Adams, and most students of the law in most cultures for most of human history — but oddly absent in the discourse of contemporary American lawyers and legal academics. The bulk of this volume is dedicated to gently and sympathetically explaining how and why American jurisprudence went off the rails — and eloquently, persuasively urging her colleagues back onto the right track.

This book will be influential in large part because West takes such trouble to address the fashions and obsessions of her errant contemporaries. The three main chapters engage (seriatim) proponents of what West identifies as the three currently dominant jurisprudential traditions of (1) natural law, (2) positivism and (3) critical legal theory, represented in American legal discourse by (1) Ronald Dworkin and Lon Fuller, (2) Oliver Wendell Holmes, Jr., and (3) Janet Halley — all indulgently chided for slipping away from the earlier and more ambitious jurisprudence of (1) Thomas Aquinas, (2) Jeremy Bentham, and (3) Peter Gabel and Roberto Unger.  What Aquinas, Bentham, Gabel and Unger have in common — West also mentions John Finnis — is their commitment to advancing a “moral brief”: their attempt to explain how laws and the world could be made to be more just and therefore less oppressive to real human beings.

This is indeed what lawyers, legislators, and law professors ought to be doing, but I cannot help feeling that in her effort to persuade by offering an “internal” critique of contemporary jurisprudence, flattering each theory’s intentions, West is too kind to legal positivism and the critical legal studies movement, and unfair to “liberals” such as Ronald Dworkin, who try to make American law live up to its declared ideals. Briefly, the father of legal positivism wasn’t Bentham, but Hobbes, and the essence of positivism has always been the promotion of stability and legal certainty at the expense of justice. Similarly, the essence of CLS was always the denial of (moral) truth and (legal) constraint, in order to empower ones allies and friends. (And the refusal to accept that any idea or concept has an “essence”, which is why I so delight in saying so.)

These last three sentences lost me half the readers who made it this far, which is why perhaps West’s approach is best — to show that in fact we all in the end agree (or would agree if we thought about it) that the only good purpose of law is justice.

This makes it doubly surprising when she turns on Dworkin for taking a similarly “internal” view of the United States Constitution and the common law, interpreting them in the interest of justice, and therefore legitimating (as she sees it) a profoundly unjust system. This criticism of constitutionalism needs to be argued for, not asserted, and leads to my one criticism of this book, which is that it too easily attributes the injustices of the United States to the American legal system, and not primarily to the judges, lawyers and above all law professors whose pernicious doctrines deny justice as the proper purpose of law and the state.

But in the end these differences are matters of tone and law school generation. West studied under liberals and saw the dangers of complacent constitutionalism. I studied under crits and saw the damage of self-indulgent antinomianism. What we both saw and what anyone must know who can see or hear or feel or live in America today is that injustice is everywhere and often supported and advanced by the very laws and legal system of which we are the priests and expositors in our law schools, courts and classrooms. To serve without question makes us complicit in oppression.

Robin West has done a tremendous service by reminding American lawyers that jurisprudence and the law must be normative to have any value at all — and that it matters which norms these are. “To willfully fail to act … is shameful” she tells us.  I agree.

Structure and/or Culture

Oct 14, 2011 Daria Roithmayr5 comments

Daria Roithmayr

Last fall, the New York Times reported that in the halls of academia, studying culture was no longer, like Lord Voldemort, “that which must not be named.” Culture was officially back on the poverty research agenda. According to the story, much of this newfound respectability had come courtesy of William Julius Wilson, the Harvard scholar who has long argued on both culture and structure fronts. In 2009, Wilson published a book, More Than Just Race, in which he marshaled the best of sociological research to argue that both structural barriers and cultural impediments keep poor people of color trapped in poverty. In the end, Wilson concluded that the structures of racism and the globalizing economy matter far more than the cultural behavior that conservatives love to blame. But in the essay that this review focuses on, Wilson focuses less on which trumps which. Instead, he makes a strong case for a “unified framework” to integrate both structure and culture.

If I might put the argument in a stylized form, Wilson shows in essence that structure and culture are related to each other in a positive feedback loop, in which structure shapes culture, and culture in turn shapes and contributes to structure. So for example, Wilson points out the way in which segregation and a globalizing economy produce informal illegal economies, in which the “code of the street” and distrust of the police become commonplace cultural norms as rational responses to illegality and isolation.  These codes of the street and their accompanying frameworks of meaning—distrust of the police, for example–contribute in turn to the perpetuation of segregation and diminished access to jobs. And the cycle goes round and round. In integrating structure and culture into one analytical framework, Wilson continues to make a strong case (as he has for twenty years) that the study of culture should enjoy full respectability in the academy. It seems left academics are finally listening.

But it wasn’t always so. Until recently, in the long-running and often tedious debate about the causes of persistent inequality, people who did work on persistent inequality fell into two camps, largely defined by political ideology. The structuralists, or those on the left, emphasized structural causes, like residential segregation but didn’t say much about culture. The culturalists, or those on the right, focused on cultural traits like teen pregnancy and the propensity to work in unskilled jobs that don’t require English. The structuralists on the left accused anyone in their ranks who was working on culture of “blaming the victim.” The culturalists on the right focused on issues of personal responsibility and cultural deficit, and said next to nothing about structural issues like job access.

But why choose sides in that endeavor, asks Wilson? In both the book and the essay, Wilson points out that focusing on either structure or culture to the exclusion of the other offers an analysis that is incomplete. For Wilson, social structure refers to the social positions, social roles, and networks of social relations that configure people into particular positions and relationships. Structure is made up of two more specific categories of behavior: social acts, like stereotyping, discrimination and exclusion (of the individualist sort), and institutional social processes, like racial profiling, racial tracking in schools and Jim Crow laws of segregation. With regard to social processes, Wilson includes not just the obvious but also processes that are more indirectly connected to race–like the globalized and technology-driven economic displacement that disproportionately affects people of color because they lack skills and spatial access to jobs, owing to past discrimination.

In Wilson’s view, culture includes two categories of collective behavior—first, national beliefs and viewpoints on race shared by society at large, and second, intra-group beliefs, habits, modes of behaviors. This latter category includes (most importantly for Wilson) cultural frameworks of meaning—shared visions of human behavior and of the rules of meaning connected to that behavior. In social capital terms, for example, beliefs about who is trustworthy might be a cultural framework connected to decisions about whether a person ought to refer a friend or family member to one’s own employer for a job if she thinks her reputation might be on the line.

In this essay, Wilson explains that structure—e.g., segregation and poverty—produces particular cultural practices and frameworks of meaning that in turn shape the response to, and indeed cause, poverty. Referring to Elijah Anderson’s work, for example, Wilson notes that the “code of the street” maxim to “keep to yourself,” can be understood as both an adaptive trait that promotes safety in unsafe Philadelphia neighborhoods where people feel unable to rely on the police and an impediment to forming resource networks that deliver material and informational support.  Likewise, from Sudhir Venkatesh’s work, Wilson points out that the “code of shady dealings” that emerges to mediate disputes in a city’s underground economy both adaptively facilitates relationships in that economy and impedes integration into a broader society. Thus, cultural modes of behavior both reflect and create structure, in a positive feedback loop that defies dissection. And such behavior is not just rational, but also cultural, in that it reproduces itself through social learning, from parents and from peers.

In my enthusiasm for the argument, I am happy to be critical at the same time. I want Wilson to be even more explicit about the crucial theoretical move from culture back to structure in the feedback loop. I know the standard conservative arguments about the way in which teen-age pregnancy and lawlessness cause racial poverty. Are Wilson, Anderson and Venkatesh making the same cause-and-effect kinds of arguments for this part of the feedback loop? Does their “culture causes (or shapes or contributes to) poverty” half of the loop look the same, or differ in any theoretical way from conservative claims, beyond adding the other half of the “poverty causes culture” leg of the feedback loop? Hard to say from the essay, though Wilson says more in the book. And certainly this is a question that dances close to the perennial “blame the victim” controversy.

I also wonder whether the argument to pay attention to “culture causes structure” might be badly timed, post-economic crash, when structure seems to dominate the landscape. Recent research documents that the recent economic crash rolled back wealth gains for a large section of the US populace. To be sure, wealth for black and brown plummeted far more so than for whites.  But many middle-class whites have now felt the pinch if not the pain of displacement and job loss, more than ever before, and even the country’s biggest banks have become beneficiaries of affirmative action of a sort, as they struggled with the fallout of a major “structural adjustment.” Maybe this is the time where scholars should be hammering home arguments about structure, with less reference to the link to culture and more reference to experiences like straight-up access to jobs. Focusing on culture might divide where references to common experience might unite.

These are all minor quibbles, of course. Wilson ends his essay by joining Orlando Patterson to argue against political correctness–studying culture does not require that we ignore or downplay structure. I heartily agree. If the New York Times report is any indication, young scholars on the left are also now listening. Perhaps, post-economic crash, conservatives will now be willing to listen to arguments about structure as well.

Law Through the Prism of Planning

Sep 12, 2011 Mark Greenberg

Mark Greenberg

Scott Shapiro’s splendid new book offers a novel theory of the nature of law: legal systems are essentially systems for complex, impersonal social planning, and legal norms are plans. The book provides a new perspective on law, which is both refreshing and fruitful. By thinking about the origins, purposes, and essential features of plans, we gain insight into law. A significant side benefit is that the book connects law to topics in contemporary philosophy of action.

Legality has more virtues than I can discuss here. To begin with, although the book is a highly original contribution to the philosophy of law, it presupposes relatively little background. It is also extremely clearly and engagingly written. The book would therefore make a superb text for a law school, advanced undergraduate, or graduate course. And, because Shapiro frames the issues in new ways, even those portions of the book that introduce and discuss familiar positions and issues provide much food for thought for specialists as well as the more general reader.

For example, early in the book, Shapiro explains what he calls “the Possibility Puzzle.” Legal norms come from institutions with the power to create legal norms, such as legislatures. An institution has the power to create legal norms because of a legal norm that gives it that power, for example a constitutional norm that grants legislative power to a particular body. But where does that norm come from? As Shapiro explains, there is a chicken and egg problem here. In order to solve the problem, we need either a legal norm that does not come from an institution with the power to create legal norms or an institution that has the power to create legal norms but does not derive that power from a legal norm.

Shapiro argues that Hume’s law – an “ought” cannot be derived from an “is” – is a severe obstacle to legal positivist attempts to solve the Possibility Puzzle, because such attempts purport to derive legal norms from nonnormative social facts. HLA Hart’s account is a case in point. According to that account, a convergent practice of legal officials is supposed to generate a social rule, the rule of recognition, that solves the chicken and egg problem. Shapiro offers a subtle interpretation of Hart’s approach to the challenge posed by Hume’s law and argues that, in the end, the approach fails.

On the other hand, however, Shapiro maintains that anti-positivist or natural law attempts to solve the Possibility Puzzle run into the “Problem of Evil”: grounding legal authority in moral authority or moral norms makes it difficult to see how evil legal systems and evil legal norms are possible. Shapiro uses these engaging and easily understood framing devices throughout the book, for example in bringing out the problems in other legal positivist accounts and in arguing for his own theory.

One of  Legality’s great strengths is that, although Shapiro is on the legal positivist side of the positivist/anti-positivist debate, his book engages with anti-positivist theorists to a much greater extent than many legal positivist works. Shapiro is sympathetic to anti-positivist motivations and tries hard to respond to the arguments of anti-positivist theorists. In some instances, he makes substantial concessions to their positions.

An example is that Shapiro agrees with the natural law claim that law has a moral purpose, and that, to the extent that it fails to serve that purpose, it fails to do what it is supposed to do.  Similarly, Shapiro rejects Hart’s claim that legal terms such as “obligation” have a different sense from the corresponding moral terms.  He holds that the law uses these terms to make moral claims.

Another notable example is that Shapiro recognizes that Ronald Dworkin has made extremely serious criticisms of legal positivism—criticisms to which no positivist has yet adequately responded.  Shapiro devotes a couple of chapters to trying to answer Dworkin. (One important point of disagreement: in my view, Shapiro is wrong to maintain that Dworkin’s theory of law depends on a claim about the intentions of legal creators – that they are “necessarily committed to a ‘best-lights’ analysis.” 308.) In sum, one reason Shapiro’s book is valuable – and admirable – is that, rather than passing natural law theory by, it seriously engages with and tries to respond to it.

Most significantly, Legality develops an original account of law in terms of the notion of a plan. A particularly rewarding aspect of the book is its discussion of plans and their relation to legal systems and legal norms. In his appealing and lucid style, Shapiro explores the characteristic features of plans, the needs to which they are responsive, the way in which they are created, and their relation to rationality. He makes the ingenious proposal to understand legal systems as complex systems for impersonal social planning and to understand legal norms as plans, including plans for planning. Like a legal system, planning is an extraordinarily effective instrument for guiding and organizing the conduct of agents who have complex goals but limited rationality and varying degrees of trust in themselves and each other. For example, like legal norms, plans can be created in advance to compensate for anticipated failings of rationality or lack of trust and can be left incomplete and filled in as more information becomes available.

Plans are specialized norms that have just the features, Shapiro argues, that are needed to solve central problems in legal philosophy. The solution to the Possibility Puzzle, for instance, is to be found in the possibility of planning: “we are able to create law because we are able to create and share plans” (181). In Shapiro’s view, the chicken and egg problem is solved because the power to plan derives from norms of instrumental rationality that are not themselves created by people. Because legal norms ultimately rest on these norms, Shapiro’s account is consistent with Hume’s law.

Shapiro thinks that plans are positivistic, i.e. that the content of a plan depends only on nonnormative facts. Because, on his account, the content of the law is the content of a plan – typically, of course, a highly complex plan with many sub-plans, sub-sub-plans, and so on – he concludes that his theory vindicates legal positivism. (More precisely, the content of the law comprises not only the content of the plan but also certain entailments of it.) I want to raise a question about this aspect of Shapiro’s theory. If a terrorist has a plan to blow up a bridge, the content of that plan plausibly is simply whatever he intends. Shapiro sensibly takes the position, however, that in the case of the content of the law, the content of the relevant plan is not wholly constituted by the content of any actual intentions or other psychological states (though the content of various intentions of diverse people may be relevant to the content of the plan). As I would put it, the relevant plan is imputed or constructed.

I believe (though I cannot argue here) that once we are in the business of imputing or constructing the content of the relevant plan, we cannot avoid relying on values to do so. (For related discussion, see my “The Communication Theory of Legal Interpretation and Objective Notions of Communicative Content”; see also my “Legislation As Communication? Legal Interpretation and the Study of Linguistic Communication” in A. Marmor and S. Soames, The Philosophical Foundations of Language in the Law (Oxford: OUP 2011), pp. 217-256, especially pp. 232-233 and section 6.) Shapiro agrees with this point, but he thinks that the relevant values are those of the legal system.

In my view, however, the very same difficulty arises when we ask how the practices of the legal system determine its values. Shapiro says that interpreters must extract the objectives of the legal system from the texts and other practices. But, to stay with this epistemic way of talking, an interpreter cannot move from facts about what various people did, thought, and said to conclusions about the objectives of the legal system without deciding which actors’ decisions or utterances are relevant to the legal system’s objectives, precisely what bearing those events have, how much weight they deserve, and so on. It is difficult to see how the right answer to such questions could not depend in part on moral facts, such as facts about fairness and democracy. For example, a particular past decision might be relevant, and relevant in a particular way, because it would be unfair for it not to be relevant in that way, given the expectations that it reasonably created; conversely, another decision might not affect the content of the plan because, given who made the decision or how it was made, it would be unfair for that decision to have a bearing on the content of the plan.

So I suspect that, if Shapiro is right that the content of the law is the content of a plan, whatever may be the case with respect to other kinds of plans, the content of the relevant plan necessarily depends on moral facts. My disagreement on this issue does not affect my overall judgment of the book: the interest, power, and illumination of Legality far transcend its implications for the legal positivism/anti-positivism debate.

Planning Ahead! (in Jurisprudence)

Sep 12, 2011 Ekow Yankah

Ekow Yankah

Analytical jurisprudence has a peculiar status in American law schools to say nothing of philosophy departments. Most law professors find it an utterly inscrutable or arid project. More generous souls have the vague impression that it is important and like that one or two of their colleagues engage in it, but their gentle forbearance is not to be mistaken for interest. Even those steeped in the subject are often discouraged by the increasing narrowness of the “What is Law” question. It takes a good deal of squinting to see the live question surrounding the nuanced positions on the extent to which morality determines whether something can be considered law; that is, the “validity conditions of a legal system.”

Against this rather gloomy landscape, Scott Shapiro has introduced an illuminating new book, Legality. Though there are few who are as knowledgeable about analytical jurisprudence as Shapiro, his book is admirable not for its attempt to dazzle with intricacies. Rather, Shapiro’s work is laudable because it makes accessible decades of debate in modern jurisprudence while still providing a novel contribution. Most importantly, Shapiro revives the heartbeat of the debate, showing why it matters and synchronizing it with legal issues recognizable to those outside of the small world of analytical jurisprudence. This accessibility means that those who know this debate will find the preliminaries unnecessarily long, a quarter of an already rather long book. Yet, it is no small thing that Shapiro manages to explain half a century of thick debate in a way that interested audiences of lawyers, and perhaps more immediately relevant, undergraduates and law students can understand its contours. Speaking for the many professors who have shied away from teaching the subject, Shapiro’s book makes one reconsider the profitability of reintroducing this debate in the classroom.

Quibbling about jurisprudence classics with Shapiro may be its own sort of fun, but it would distract from Shapiro’s real accomplishment–breathing fresh air into the debate. Shapiro’s novel contribution is to apply the insights in philosophy of action, particularly Michael Bratman’s theories of intentions, to show how law can be seen as a model of social planning. Shapiro attempts to show why a planning theory leads to a positivist theory of law, excluding morality from determining what constitutes law and showing the practical effects for current legal questions.

The core claim of the book is illustrated in a simple and charming story of cooking dinner with a friend. From this, Shapiro spins a tale of the formation and organization of a cooking club to highlight the perfectly quotidian intuition that whether having dinner alone or organizing a cooking club, planning is necessary to achieve our basic goals. The more complicated our goals the more sophisticated our plans must become. Further, and this is crucial for Shapiro, in order to be useful a plan must possess a certain amount of stability. There is no point in painstakingly planning a gourmet meal if when you walk into the grocery store you wonder anew what to cook. Plans can be incomplete or revised in light of new information, but as a general matter plans must resist constant tinkering or reevaluation. Echoing Raz on authority, Shapiro concludes that plans must be accessible without re-evaluating the underlying merits on which the plan was originally based.

This telegraphs the plan of attack. Shapiro uses an analogy between law and the plans generally to generate “a planning theory of law.” On Shapiro’s account, legal institutions are forms of planning which allow large groups to achieve that which they could not otherwise. Critically, just as evil plans are still plans allowing human beings to channel their agency, the plans that constitute law need not be moral to constitute valid law. The only “moral aim” of law is a minimal one; solving the problems that arise as social tasks and ambitions grow more complex. Arguing that law, like plans, must resist reevaluation of its underlying (moral) merits to be useful grounds Shapiro’s positivism on novel grounds.

Elsewhere, I have argued for positivism premised on a conceptual connection between law and coercion. I argued both that coercive norms distinguish the normative systems best described as law and that alternative models of positivism can not adequately defend positivism’s holy grail, the separation between law and morality. Even Shapiro’s thoughtful dinner model illustrates why. Plans can do a great deal to coordinate action and facilitate massive socially coordinated events without a commitment to excluding arguments grounded in morality. “My wife and I will move to Paris, find new jobs and raise our kids in the best way possible” is a plan, even if incomplete and certain to lead to revaluation and argument down the road. “Do not subject others to cruel and unusual punishment” is also “a plan” of sorts even if it leads to the same. Likewise, the 14^th Amendment might rule out discrimination against African-Americans while leaving unspecified whether the elderly are protected against age discrimination. Nor is it dispositive, as Shapiro argues, that moral criteria will not only leave some plans undetermined but may, on occasion, unsettle plans that were once settled.  One need only avoid plans that would be radically and uselessly undetermined.

Further, even if plans need to be relatively stable, it’s unclear that one would want this stability at the cost of excluding moral criteria. Plans are open to moral evaluations from the inside. We criticize, guide and correct our plans with moral reasons not simply evaluate the attractiveness of completed plans with a removed eye. This is especially true because, as Shapiro points out, the plans that constitute law are not an equally shared activity; for many people law represents a set of plans which are imposed upon them. It is this criticism which drives critical (race, feminist, class, etc…) legal views. (Notice Shapiro falls into a common habit of using examples that feature roughly democratic and morally innocuous circumstances.) Given his interest in the ways in which law places people in varying power roles depending on the extent to which they are trusted to properly fulfill those roles, it is strange that Shapiro spends so little time on this. Perhaps this is because for Shapiro, while there is a reason for many of us to adopt the plan in effect around here, he is agnostic about any general obligation to follow the law.

Of course, the point of the positivist project is to establish that the existence of laws are one thing and their morality another. Replying to those who argue that the moral criteria within law can generate legal rights in the same way that morality can guide plans by repeating that planning forecloses this leaves those seeking to engage jurisprudence exasperated or befuddled. Further, to ultimately conclude that the distinction between morally derived legal rights and “law” proper turns on Davidson’s model of the different ways in which obligations can be described will seem to many a terribly slender reed for such an important claim.

This brings us to the most global concern with Shapiro’s model. Why should one accept that law is perfectly analogous to the kind of positivistic planning Shapiro proposes? Many thoughtful judges, lawyers and scholars think quite the opposite. One of the things law allows is for us to frame deep practical moral disagreements of a certain kind and discuss, argue, and alter them while continuing to govern society. While Shapiro is not opposed to this objection, pointing to scholars such as Jeremy Waldron and Akhil Amar, he holds these claims exist outside the law. That claim, I have suggested, cannot come solely from describing law as a type of plan.

Lastly, Shapiro is to be much admired for an intricate discussion tying the core questions of legal philosophy to the legal questions of our day. Shapiro proposes that the “planning model” of law can answer not only “retail” questions of law, but inform broader questions about the amount of discretion officials should wield, their interpretative methodology, etc. Despite lacking the space to discuss these claims, the attempt to link the debates in jurisprudence with live questions may be the most important spirit of the text. While the success of that claim ultimately turns on whether one is convinced by Shapiro’s model, it cannot be doubted that Shapiro’s book, which clarifies and advances analytical jurisprudence, is bound to be a classic text.

Playing by the Rules

Aug 1, 2011 Connie Rosati

Connie Rosati

What does sport have to do with jurisprudence?  Not a great deal, one might think. To be sure, particular sports, like legal systems, are rule-governed practices. This commonality and the relative simplicity of sports makes them useful as a source of examples that might be deployed to explain more complex legal-theoretical ideas.

Philosophers of law and legal theorists commonly use sports examples in just this way. Most famously, H.L.A. Hart used examples from games and sport both in criticizing other views about the nature of law and in clarifying his own distinctive view. In his critique of Austin’s command theory of law, for example, Hart invoked the scoring rules of a game as he explained why nullification under the power-conferring rules common to modern legal systems cannot be assimilated to sanctions under duty-imposing rules. (H. L. A. Hart, The Concept of Law). And he adverted to chess and cricket to explain one of his most distinctive theses—that rules, and so law, have an “internal aspect.” Chess players, he observed, do not merely have “habits of moving the Queen in the same way,” which an external observer might record. In addition, “they have a reflective critical attitude to this pattern of behavior: they regard it as a standard for all who play the game.”

Given the frequent appeals to sport in the work of legal philosophers, we should be surprised at the scant attention that has been paid to its complexities. So Mitchell Berman observes, in his wonderfully engaging essay on the “jurisprudence of sport.” As his discussion makes clear, sport isn’t merely a source of useful examples. On the contrary, “sports leagues constitute distinct legal systems,” he explains, sharing many features in common with legal systems proper, such as primary and secondary rules and institutional actors who function like legislators and adjudicators. For this reason alone, sport merits serious and sustained investigation by legal theorists.

Berman launches his discussion with a detailed recounting of the semi-final match of the 2009 U.S. Open. Serena Williams, the “odds-on favorite to win her third grand slam tournament of the year,” faced off against Kim Clijsters, in her surprise return to the tennis world. Williams lost the first set to Clijsters and was down 15-30, when a line judge called her for a foot fault on her second serve. Williams lost it, in more ways than one. Her outburst and threatening behavior toward the line judge resulted in a one-point penalty and a win for Clijsters, as well as additional penalties and universal criticism. As for the substance of her complaint, however, some sided with Williams, arguing that you just don’t call a foot fault at such a critical juncture. The position of Williams’ defenders rests on what Berman calls “temporal variance”—the view that “at least some rules of some sorts should be enforced less strictly toward the end of close matches.”

Having thus set the stage, Berman’s article goes on to investigate the “contours and bases of optimal temporal variance.” But this, he quickly makes clear, is just the “surface agenda.” His grander ambition, he explains, is to illustrate the worth of theoretical investigation of sport in order to encourage the development of a jurisprudence of sport. And yet he hints at a still grander ambition when he offers that one might see his article as “a manifesto of sorts for an enlarged program of jurisprudential inquiry.”

Berman offers persuasive considerations in favor of this broadest aim. Sport and law confront many of the same issues, he observes, including when and where to guide conduct by formal written norms rather than by informal social norms, when and where to make use of rules rather than standards, when and where to leave adjudicators with discretion, and how appropriately to limit that discretion. Sport and law must each manage epistemic uncertainty, as well as the normative uncertainty that arises when gaps are exposed between “the law in the books” and “the law in action.” An enlarged jurisprudential inquiry would improve our understanding of the “phenomena and dynamics” common to law and sport. The development of a jurisprudence of sport might prove particularly useful on the law side, not only because the rich examples sport provides can be plumbed as a source of jurisprudential hypotheses, but also because our intuitions about particular practices common to both are, in the sports context, “less likely … to be colored or tainted by possibly distracting substantive value commitments and preferences.”

Berman tells us a bit about where he anticipates that his own arguments might yield dividends for legal theory. Without elaborating, he offers that in light of his arguments, we can better understand the lost chance doctrine in torts, the difference between claim-processing rules and jurisdictional rules, and the granting of equitable remedies in certain contexts such as appellate litigation. Whatever the import of a jurisprudence of sport, and of Berman’s arguments in this article for the particular legal-theoretical issues he identifies, I suspect the broader inquiry Berman envisions may yield equally large dividends for more general legal theory.

Viewed in its entirety, Berman’s exploration of temporal variance and the rule-governed practices of various sports provides a compelling corrective to the temptation to think of rules as functioning to settles issues, and to settle them in particular by precluding appeal to the reasons for the rule—the underlying aims or standards the rule serves. Rules no doubt sometimes settle issues and always have some tendency to constrain, or better, to guide decision making. And yet as Berman’s essay illustrates, even the formal invariance of a rule does not always settle all questions we might have about the rule and its proper application “in action,” and not simply because of the complex interaction of the rules of a practice.

What makes his essay compelling in this way is precisely that if there are any practices in which we might be inclined to think of rules as operating pretty straightforwardly, surely sporting practices are among them. But if playing by the rules can be so complex and controversial in sport, where matters are not of such great moment, then so much the worse for law. Of course, one might naturally wonder whether puzzles of the sort Berman considers surrounding the rules and “rulified standards” in sport have important relevant counterparts in the law. More deeply, one might wonder whether the distance the study of sport allows from the evaluative commitments and preferences that operate when we consider law is such a good thing for jurisprudence. For a critical difference between law and sport is that legal issues do engage the values, interests, and concerns most fundamental to human life. The influence of our evaluative commitments and preferences can be distorting, but it can also help us to see things rightly.

As I suspect Berman would correctly point out, the expansive jurisprudential inquiry he advocates need neither assume near parity nor overlook how values can correct our perceptions and judgments. To be sure, among the things we would want to learn, and would learn, from a jurisprudence expanded to include sport are the limitations of sport for understanding as normatively rich a system as law. But what we learn about that also stands to improve our legal jurisprudence.

Mitchell Berman’s essay is beautifully written, rich in detail, and deep in its exploration of the complex interplay of the rules of sport and the distinctive aims and excellences that form the “internal morality” of particular sports. I found it thoroughly fascinating from start to finish and was left, as someone with no particular interest in sport, with an appreciation of why people as smart and insightful as Berman would find it so gripping. One can only hope that others will take him up on his invitation and that Berman himself will, in future work, begin to bring the seeds he has planted in this essay to fruition.

Particularism, Telishment, and Three Strikes Laws

Jun 30, 2011 Michael Green

Michael Green

Although this article appears to be about the permissibility of aggressive anticrime measures, it really concerns particularism in ethical theory.

Three strikes laws, zero tolerance policies, and the like have been criticized for violating nonconsequentialist restrictions on punishment. According to this criticism, when the state sentences a former felon to 25 years in prison for stealing three golf clubs, see Ewing v. California, it acts improperly because it imposes a sentence more severe than the defendant deserves for the crimes he has committed. That such a restriction on punishment exists, it is claimed, can be shown by considering telishment (short for “teleological punishment”), in which the government intentionally punishes someone it knows to be innocent because crime will thereby be prevented. Although telishment would, ex hypothesi, have good consequences, it is nevertheless wrong. And so–-proceeding according to what Brand-Ballard calls a generalization argument–-punishment under three strikes laws must also be wrong, for it shares all morally relevant intrinsic features with telishment. Both, after all, impose a quantum of undeserved harm.

Brand-Ballard challenges not merely this criticism of three strikes laws, but also all generalization arguments, in which a policy is held impermissible because it shares all its morally relevant intrinsic features with another policy that is clearly impermissible. He asks us to consider an act of punishment that is clearly permissible–say, a 5-year prison sentence for bank robbery. Since this sentence inevitably imposes harm upon the punished’s spouse (the “collateral damage” of the article’s title), he argues it also shares all morally relevant intrinsic features with telishment. The spouse, like the telished, does not deserve harm, although imposing it might have good consequences.

Of course, Brand-Ballard’s argument can work only if the harm to spouses that arises from imprisonment shares all morally relevant intrinsic features with telishment. The most important challenge he must face is that the doctrine of double effect is a morally relevant intrinsic difference between the two. The state, one might argue, does not intend to harm the spouse, but merely foresees the harm as a side-effect of the imprisonment. In contrast, the telishing state intends the harm suffered by the scapegoat. Although Brand-Ballard does not deal with this objection with quite the care one might wish, I think he is right that the doctrine of double effect cannot be used to distinguish the two.

His best argument is that the coercive separation of the spouse from the prisoner is often an intended quality of the punishment. The state wants the prisoner to be denied the companionship of the spouse. To be sure, one might argue that it does not really want the spouse to be denied the companionship of the prisoner. If it could separate the prisoner from the spouse without separating the spouse from the prisoner, it would. But here I think Brand-Ballard could respond that we might just as well say that the telishing state doesn’t really want the harm to the scapegoat–if it could bring about the crime reduction without the harm, it would.

Given that telishment, three strikes laws, and imprisonment without unlimited conjugal visits share all morally relevant intrinsic features, what does Brand-Ballard think follows? Not that prisons must allow unlimited conjugal visits, and not that telishment should be permitted. He does not even take a stand on the permissibility of three strikes laws. His point is that our moral assessment of all of these policies cannot be made without a consideration of their extrinsic features.

Notice that this is not necessarily consequentialism. He leaves open the possibility that considerations other than consequences matter. Rather, he borrows a theme from the particularists: the way that intrinsic considerations matter is never invariant across extrinsic contexts.

The common view is that telishment is wrong because it violates nonconsequentialist restrictions protecting the scapegoat. Likewise, imprisonment without unlimited conjugal visits is fine, because the prisoner’s spouse has no comparable nonconsequentialist protection of her interests. Brand-Ballard argues that this is too hard on telishment and too easy on prisons’ refusal to allow unlimited conjugal visits. Both share the pro tanto wrongmaking feature of imposing undeserved harm. Therefore, what makes telishment all-things-considered impermissible and imprisonment without unlimited conjugal visits all-things-considered permissible are extrinsic features.

He offers only brief suggestions about what these extrinsic features might be. In the case of telishment, he suggests that, in any normal society, allowing officials to telish would open up an avenue for abuse–they would have a convenient argument for punishing those with whom they disagree. Concerning unlimited conjugal visits, he points to the cost such a policy would impose upon prisons. He admits that these reasons may not reflect the phenomenology of our moral reactions to these policies. But, he argues, to the extent that we think nonconsequentalist considerations are solely driving these reactions, we are misdescribing the sources of our own moral intuitions.

What then about three strikes laws? He argues that the common criticism of such laws–that they violate retributive restrictions on punishment–will not work. Any argument against them is going to have to be contextual and empirical, in particular that they inflict more undeserved harm than they prevent.

The most significant aspect of this highly original article, however, is less its assessment of three strikes laws than its exemplification of the modern trend toward moral particularism. Notice, however, that Brand-Ballard’s particularist sympathies are limited. The way that intrinsic features morally matter, he argues, is never invariant across extrinsic contexts. That leaves open the anti-particularist possibility that there are extrinsic features, or nontrivial sets of intrinsic and extrinsic features, with moral effects that are invariant across contexts. From these features, moral principles might be derived.

Creating Norms

Apr 27, 2011 Brian Bix

Brian Bix

In this brief companion piece to his longer work, “The Correspondence of Contract and Promise,” Jody Kraus displays how a “personal sovereignty” account of individual autonomy can explain the ability of individuals to impose moral obligations on themselves.

Contract Theory has become increasingly focused on the related issues of the philosophical foundations of promising, and the relationship between promise and contract. As Kraus points out in his longer Columbia Law Review piece (“Correspondence”), one cannot reach any conclusions about whether contract law deviates from the morality of promising until one determines the source and extent of the moral obligation of promising.

One view in the area has been that the normative force of promises comes from the social practices and conventions which a community established to make an act of promising sufficient to impose an obligation on the promisor.  Kraus notes that Joseph Raz appears to argue that individuals have the power to create normative obligations through promising, because it would be valuable for them to be able to do so. (128)  As Kraus discusses in “Personal Sovereignty,” views like these have elicited the skeptical response that one cannot simply create a moral obligation out of thin air.  For these skeptics, neither the presence of a social practice or convention nor the claim that the ability to be able to bind oneself would be a good thing, could be sufficient to allow individuals to create new obligations in this way.  The skeptics continue, whether a promise creates an obligation depends on some other more basic axiom of moral philosophy (e.g., for the consequentialist, whether keeping this promise will increase overall social utility).

Kraus’s response, in “Personal Sovereignty,” is that personal sovereignty can explain promissory obligation in a way that avoids the skeptical reply.  Personal sovereignty “recognizes the fundamental right of individuals not only to choose their system of ends but also to choose how to pursue those ends.” (127, quoting Krause, “Correspondence,” at 1609)  Kraus argues that this account of individual autonomy would include the ability of parties to impose obligations on themselves.  This approach would escape skeptical objections because “personal sovereignty” is a foundational axiom, that neither requires nor allows further justification (that is, it plays the same role as “maximizing utility” does for those who argue that enforcing promises must be justified on consequentialist grounds).

This all may seem parochial, of interest only to contract law theorists, but comparable debates are going on in many other parts of legal and moral philosophy.  The version of legal positivism Scott Shapiro presents in Legality (Harvard University Press, 2011) is built on the idea that when we (as individuals or as a collective) make plans for ourselves, we give ourselves reasons for action (to do what we planned, and to do what we need to do to execute those plans successfully) that we did not have before.  (Though, for Shapiro’s theory, which is built on Michael Bratman’s work, it will be collective plans, not individual plans, that are central.)  Again, this is a picture of what might be called “boot-strapping” within practical reasoning, of individuals being able to create prescriptions where none existed before – and, in the case of plans, without the level of commitment or the background of social practices and conventions that is arguably present for promising.

When, how, and under what circumstances people can morally bind themselves – either individually, bilaterally, or collectively – is a crucial topic for many aspects of moral, legal, and political philosophy.  Jody Kraus in “Personal Sovereignty” has offered a powerful, straight-forward and intuitive answer to one version of the question, that might well resolve some basic problems in contract theory (as he argued in “Correspondence”), but there are still related problems in explore in general jurisprudence and political theory.

Transnational Law

Mar 21, 2011 Dennis Patterson

Dennis Patterson

Globalization has produced transnational legal phenomena in need of theorizing.  From this observation flow several questions about transnational legal phenomena such as private legal orders (e.g., ICANN, UDRP, Bernstein (1992) on diamonds), federal norms (e.g., EU law), international law that is not the product of treaties (e.g., lex mercatoria or the norms produced by the WTO appellate body), soft law and international arbitration (ADR).  How should legal theorists make sense of these disparate yet related phenomena?

If we are to theorize these phenomena, what form should such theorizing take?  This is the question taken up by Calliess and Renner.  As they see it, the answer to the question of “global governance” is a mixture or blend of legal theory/jurisprudence and social science (here law and social norms).  Each approach asks a different question.  From the point of view of legal theory, the question is “analytical” (their word): how to differentiate legal from non-legal norms?  Thus stated, the question is familiar to analytically minded legal theorists.  The second dimension is advanced in the form of a challenge, which they state thus: “[T]he most pressing demand on contemporary jurisprudence is to make legal concepts compatible with those of the social sciences without at the same time losing sight of the very own purpose of legal thinking, i.e., the normative analysis of legal structures.” (p. 262)

There exists a distinct tension between social science approaches to law and more traditional jurisprudential (think Kelsen 1945 or Hart 1997) accounts of the nature of law.  The law and social norms approaches (e.g., Macaulay 1963; Bernstein 1992; Williamson 2005) stress the “interrelatedness or even interchangeability of legal and social norms.” (p. 264)  In a sense, the social science perspective sees the world as “norms all the way down,” with law enjoying no special place in the whirl of normativity.  Calliess and Renner think the emphasis on social science, particularly the exclusion of an analytical framework for law, misses a central feature of legal norms, that of its rationality (Fried 1981).

How to integrate these two perspectives?  The authors look to Systems Theory (Luhmann 2004 and Teubner 2004), embracing a functionalist account of legal norms that motivates their theory of law as an evolutionary normative system.  The job of law is to stabilize expectations.  The “governance” in “global governance” is accomplished in law through self-referential stabilization which results from two factors: (1) an impartial dispute resolution procedure, and (2) the publication of past decisions.

Calliess and Renner are right about the need to integrate traditional jurisprudential approaches to law with the tools of social science.  Law arises beyond the nation state.  We may be able to explain why transnational legal phenomena arise (the answer is globalization) but it remains unclear how best to theorize these new phenomena as “law.”  This is the next big challenge in legal theory.  This article is not perfect in its explication of an analytical account of the nature of law.  But Calliess and Renner are asking the right questions.  Their attempts to answer these questions are worth close consideration

References:

Bernstein, Lisa,  Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Leg. Stud. 115–57 (1992)

Fried, Charles E.,  The Artificial Reason of the Law or: What Lawyers Know, 60  Tex. L. Rev. 35–58 (1981).

Hart, H.L.A., The Concept of Law ( Clarendon rev. ed., 1st ed. 1961).

Kelsen, Hans, General Theory of Law and the State (A. Wedberg ed.,  Harvard University Press 1945).

Luhmann, Niklas,  Law as a Social System (K.A. Ziegert trans.,  Oxford,  2004,  1st ed. in German 1993.)

Macaulay, Stewart, Non-Contractual Relations in Business: A Preliminary Study,  55 Am. Soc. Rev. 86–104 (1963).

Teubner, Gunther,  Societal Constitutionalism: Alternatives to State-centred Constitutional Theory? in Transnational Governance and Constitutionalism 3-28  (C. Joerges, I.-J. Sand, and G. Teubner ed., Oxford: Hart, 2004).

Williamson, Oliver E., The Economics of Governance, 95 Am. Econ. Rev. 1-18 (2005).