Jurisprudence for Emergencies

Feb 14, 2011 Martin Krygier

Martin Krygier

Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good, less for what it enables and creates than for what it might prevent. On this interpretation, the point of law is to block and limit the possibility of unruly power, to curb and restrain power’s exercise.  This is not a new view. Recall Bracton’s revealing metaphor from the thirteenth century, of law as ‘the bridle of power,’ by which a just king, as distinct from a ‘tyrant,’ must ‘temper his power.’  The characteristics most associated with law changed over the centuries, particularly moving from custom to legislation, and with those changes went different conceptions of what the law needed to be like to do its proper work. However, the identification of the rule of law’s purpose with constraint endured. And it still does. Where the rule of law is commended, it is typically for what it rules out rather than what it rules in; what it restrains and prevents, rather than what it generates and encourages to flourish.

That is not the only way of viewing the rule of law, however, and arguably not the best. Jeremy Waldron has recently criticized views of constitutionalism according to which “[e]verything is seen through the lens of restraint and limitation,”¹ and has insisted on the empowering role and potential of constitutional provisions. Similar points might be made about the rule of law. Stephen Holmes has long stressed the empowering consequences of law; what, in contrast to the more common negative conception, he calls “positive constitutionalism”². Appropriately configured laws, on this view, provide “enabling constraints.”³.

For the “paradoxical insight” here, as Holmes describes it, is that:

Limited government is, or can be, more powerful than unlimited government. … that constraints can be enabling, which is far from being a contradiction, lies at the heart of liberal constitutionalism … By restricting the arbitrary powers of government officials, a liberal constitution can, under the right conditions, increase the state’s capacity to focus on specific problems and mobilize collective resources for common purposes.⁴

On this view, like  a swimmer who must master, and in a sense come to be mastered by, techniques and disciplines to marshal and channel raw energy for effective performance, so the ability of a state to concentrate its powers where and how it should is enhanced by legal requirements, procedures and institutions which, among other things, block its ability to splash around where and how it shouldn’t.

Not all jurisprudential arguments have dramatic practical implications, but this one does. Consider the often-voiced claim that elements long believed central to the rule of law need to be waived or suspended in confrontation with the terrible threats posed by international terrorism. On the negative view, it seems at least plausible to argue that there are inbuilt tensions and necessary tradeoffs between the logic of urgent, strong and effective action in emergencies, and that of the rule of law.  We might approve of both, but we need to recognize that one lives in inexorable tension with the other.

But what if the effective exercise of power depends on precisely those constraints  on arbitrary power that impatient politicians are eager to discard? And what if this is especially true in emergencies. This is what Holmes argues. His argument has many strands, but central is a remorseless development of and reflection on an analogy that is as simple to state as it is, once made, hard to resist.

Holmes argues that, so far from being a reason to discard the rule of law, times of emergency are precisely when pre-tested, often long-evolved, constraints on arbitrariness in the use of power are typically most needed. He explores a range of contexts, such as intensive care medicine, in which emergencies are the stuff of life (and death), pointing out that “emergency-room doctors and nurses are not the only professionals who, when faced with a disorienting crisis, limit discretion and abjure gut-reactions, embracing instead a strict adherence to rules and protocols that provide them with a kind of artificial ‘cool head”’ (p.302); “only those who fail to appreciate the gravity of a looming threat would advocate a wholesale dispensing with rules that professionals have developed over time to reduce the error rate of rapid-fire choices made as crises unfold” (303).

Holmes is thus critical of the common wish of governments to ‘release the shackles’ of the rule of law in situations seen as emergencies – to rule without open, calculable rules, to dispense with safeguards of procedural fairness, suspend habeas corpus, diminish or discard the ordinary protections and contestatory opportunities traditionally associated with legal hearings. Such ambitions, even when well-motivated,  pay no heed to the positive, enabling, competence-protecting role of the rule of law, and particularly to the dangers of panicked flailing about, overinclusion, plain unaccountable incompetence, ignorance, and lack of exposure to tests of the reliability of information, that often attend the acts of power-wielders acting in secret and on the fly.

Unfortunately, Holmes insists, “defenders of unchecked (or only weakly checked) executive discretion in the war on terror typically ignore the liberal paradox that constraints can be empowering, and that legal and constitutional restraints can increase the government’s capacity to manage risk and crisis”⁵. To ignore this paradox is also to misunderstand the powerful constructive significance of the rule of law. Yet “[t]o reject the rule of law is reckless because it frees the government from the need to give reasons for its actions before a tribunal that does not depend on spoon-fed disinformation and is capable of pushing back. A government that is not compelled to give reasons for its actions may soon have no plausible reasons for its actions”⁶.

Too often, defenders of the rule of law feel pressure to choose between effectiveness in defense of security, on the one hand, and what can be portrayed as effete and pedantic concern with civil liberties, that our enemies will exploit to do us in, on the other. It is Holmes’ singular achievement to show that this apparently irresistible conflict is often quite spurious.



1. ‘Constitutionalism: A Skeptical View,’ NYU School of Law, Public Law & Legal Theory Research Paper Series, No. 10-87, December 2010, 25
2. Passions and Constraint, Chicago, 1995
3. David Stark and Laszlo Bruszt, Postsocialist Pathways, Cambridge, 1998, ch.6. See too Martin Loughlin, The Idea of Public Law, Oxford, 2003 and Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints, Cambridge, 2000
4. Passions and Constraint, xi
5. ‘In Case of Emergency …’, 304-05
6. The Matador’s Cape, Cambridge, 2007, 6

Sex/Power/Law

Jan 12, 2011 Robin West1 comment

Robin West

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them?  The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected.  Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently.  Why?  Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex?

Spindelman begins by rehearsing, and rejecting, some conventional explanations: that during the height of the crisis, the gay community united in solidarity around their own, refusing to allow themselves to be splintered in the face of a hostile mainstream culture; that AIDS had its genesis in an era of confusion and blamelessness, with a widespread belief that it was even logically impossible to assign blame to individual transmitters; that victims were broadly skeptical that a legal system that had so thoroughly disregarded their rights would give them a fair shake in actions of this sort; and that the elites of the gay community quickly coalesced around an alternative narrative that targeted the government’s failure to respond to the public health crisis, rather than a narrative of individual responsibility and blameworthiness, properly compensable through the ordinary mechanisms of private law.  None of these, he argues, fully explains the widespread sense during the height of the crisis in the nineteen eighties, that HIV and AIDS transmission were just not amenable to legal tools of redress.  Rather, he argues, a cultural stance, or predisposition, or simply, an ideology underlay the response of victims to their injuries, and the community to the crisis: what Spindelman dubs an “ideology of sexual freedom” that valorized sex, including unprotected sex, over life, and that in effect eroticized death by so doing.  By the lights of an ideology which prioritized the importance of unfettered sex above all else, and which was put forward as a fighting faith, the victims of AIDS were martyrs, or soldiers, felled in a sexual battle that was itself drenched in mystical and religious as well as historical significance.  The sex for which these soldiers died, from within the perspective of this ideological lens, was an expression not of love, community, companionship, or even pleasure, but rather, of pure power, valued very much for its own sake, and transcendent in its embodiment of all it was stereotypically, in a homophobic culture, charged with being: non-regenerative, decadent, often sadistic, profoundly hierarchical and arbitrary, and potent with deadly force.  Sex, according to the purveyors of this ideological stance, was to be worshipped, not regulated, and any questioning of the harms the sex for which all should be willing to die might occasion, and certainly any suggestion that those harms, if caused by individuals in a manner the law cognizes, should be compensated, was simply blasphemy.

To mount his argument, Spindelman interprets four fundamental texts by prominent gay men from the 1980s, the high water mark of the epidemic, and scores, even hundreds, more in the voluminous footnotes along the way.  The argument begins with a brilliant reconstructive reading of Douglas Crimps’ How to Have Promiscuity in an Epidemic, an essay which appeared in 1987, and which rested at heart on an attack of Randy Shiltz’s history of AIDS in the popular book And the  Band Played On, and Larry Kramer’s critique of gay promiscuity.  Crimps attacks Shiltz’s history of the origins of the AIDS epidemic and Kramer’s critique of promiscuity as homophobic self loathing; both men, according to Crimps, undervalue sex, sexual pleasure, and sexual identity, and both are skewered for it.  In Spindelman’s reading, Crimps has basically sacrificed not only Kramer and Shiltz, but also truth itself and thousands of victims, on a pyre dedicated to sexual freedom at all costs.  By reading Shiltz as purveying a “narrative” of gay guilt, rather than governmental mendacity, in the outset of the AIDS epidemic, Marc argues, Crimps reveals his own ideological commitment to sex over life and to sexual-cultural texts over ascriptions of responsibility.  Spindelman closes his article with a reading of Bersani’s now classic essay, Is The Rectum a Grave, which hardly needs a subtle re-telling to fit Marc’s thesis: Bersani is quite explicit in his adoration of sex that is expressive of nothing but power, adopting Andrea Dworkin’s familiar anti-sentimental description of sex as an exercise of power, and then, unlike Dworkin, celebrating and valorizing it for just the reasons Dworkin condemned it, very much including its lethal potency.  The reading of Crimps and Bersani in this essay is utterly convincing.

The harder – much harder – arguments for Spindelman are the two critiques in the middle of his essay: first, his critique of David Chambers’ essay, Gay Men, AIDS, and the Code of the Condom, and second, his critique of parts of Richard Mohr’s Gays/Justice: A Study of Ethics, Society and Law. Richard Chambers’ “condom code” urged an ethic of voluntary compliance in the gay community with a moral code that required the use of condoms in anal sex, and urged the moral code as an alternative to any legal regulation at all (for example, Mohr rejects as well beyond the pale of acceptability even modest fines – comparable to that for failing to wear a seatbelt — on unprotected sex).   Spindelman faults Chambers’ Condom Code for sacrificing the victims of condom breakage and spillage for the sake of the pleasures enjoyed by survivors, for failing to require full disclosure, and Chambers himself for rejecting with almost no argument ordinary tools of legal regulation for these injuries.  He attributes all of this not so much to the ideology of sexual freedom, as to the “friendliness” of Chambers’ Code with the ideology of sexual freedom.  Richard Mohr’s philosophical argument in Gays/Justice for the insularity of sex from legal regulation rested on two planks: first, the familiar liberal claim that consensual behavior should be off the legal regulator’s radar for autonomy enhancing reasons, and, second, a more frankly mystical argument that sexual behavior, by virtue of  its other-worldliness, simply must be private (regardless of where it occurs) and regarded as such, as we would regard prayer.  Spindelman shows clearly the cost of an excessive reliance on consent, here as elsewhere in liberal thought, and raises cogent questions regarding the religiosity of sex.  These four views, collectively, rest on an ideology of sexual value, and imply or directly argue against regulation of the harms it occasions.  Spindelman then ends the essay with a lengthy discussion of the various ways in which law and legal discourse have been affected by the ideology of sexuality, from the Court’s recent decision in Hardwick, to queer theorists’ endorsement of the de-regulation of sexual injuries, from harassment to rape in war.

Spindelman has followed this essay with Sexual Freedom’s Shadows, forthcoming in Yale Journal of Law and Feminism, which is a Review of a book by Tim Dean exploring and then ultimately celebrating the fringe practice of Barebacking – the intentional transmission of AIDS (or the intentional embrace of the risk of transmitting AIDS) toward the end of an erotic high for both parties.  This essay is an extension and deeper exploration of the ideology of sexual freedom that underlies both phenomena: the underuse of the legal system for the AIDS transmissions, and the intentional transmission of AIDS as a part of sexualized expression.  The latter essay is, if anything, stronger than the former, but its target is somewhat narrower: Dean’s ode to barebacking will be read against a presumption of skepticism in any event.  Marc’s review of it will receive a friendly reception.

The ambition of Sexuality’s Law, by contrast, is larger, and so the weaknesses are more apparent.  They are twofold: briefly, the critique of Chambers’ condom code could have been more temperate, and the critique of Mohr’s liberal defense of sexual privacy could have been more careful.  The condom code, Spindelman argues, doesn’t go far enough as a regime of voluntary regulation, and it inexplicably turns its back on legal regulatory responses.  That seems fair enough.  On the other hand, it’s not at all clear that it is motivated by sexuality’s ideology, rather than the same concern for health and life that motivates Spindelman.  Spindelman’s and Chambers’ differences seem strategic more than ideological.  Second, Mohr’s insistence that consent of a victim whitewashes the injuries that consensual behavior causes does seem wrong-headed (I’ve argued as much repeatedly), but it is so for reasons that stem from the liberal valorization of consent, rather than because of the ideology of sexuality.  There is also an explanation for the failure of law to countenance these injuries that Spindelman doesn’t discuss: as Shari Motro has suggested in a recent and brilliant essay forthcoming in Northwestern Law Review on “pregimony,” the law has also failed to establish a way to spread the risks and costs of something else that is transmitted by consensual sex in addition to disease, and that is pregnancy.  Aside from costs of childbirth and pregnancy expenses related to childbirth, there is simply no liability and no liability mechanism for sharing the costs of the accidental and typically negligently caused harms.  Our inability to see the reckless or negligent transmission of disease as an event to which the civil mechanisms of law should respond might be of a piece: we just insulate sex and its harms against legal redress.

But the accomplishments of these two pieces taken together are collectively breathtaking.  The reading of the law and the culture of the time period is deeply intellectual and a stunning example of the best of cultural legal studies; Spindelman takes on hundreds of cultural sources and a library of legal scholarship in mounting his argument.  The arguments are also, quite simply, brave: he has bucked the ascendant trend in legal cultural studies and queer theory both that has tilted drastically and, quite possibly catastrophically, toward the praise, valorization, and protection of empowered sex of all forms, together with a contemptuous denial of the injuries and harms that sex has carried for its victims, including girls, women, gay men, and boys, and plenty of straight men and boys as well.   He does so, furthermore, with writing that is as impassioned and literary and beautiful as some of the texts he’s attacking, but in Spindelman’s writing, the argument, the passion, the turns of phrase, the thousands of footnotes, are put toward the ends of truth, of community of purpose, autonomy, and a celebration of individual dignity, all values, he argues, threatened by sexuality’s ideology.  This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.

The Nature of Law and the Human Condition

Dec 8, 2010 Sean Coyle1 comment

Sean Coyle

The question of the nature of law lies at the heart of jurisprudence. At the present day, the major sources of debate on the question revolve around acceptance or otherwise of ‘legal positivism’ and associated doctrines of analytical jurisprudence. Do we reveal the nature of law when we clarify the conceptual presuppositions of certain social practices? Must theories of the nature of law be ‘neutral’, ‘descriptive’ or ‘detached’? Or are social practices essentially ‘interpretive’, so that the nature of law is only revealed when it is expounded as the expression of a moral or political idea? How, indeed, are we to tell whether analytically pleasing distinctions (such as that between law and morality) genuinely clarify the nature of the object under investigation (law), rather than obscuring it? These debates are clearly capable of exerting their own fascination; but one might suspect them of diverting attention from the traditional concern of jurisprudence, which is to elucidate the nature of law as a social institution, and to throw light upon its place within the human condition. Such inquiries stimulate a specific interest in the significance of law as a distinctive type of social ordering. This is a dimension of understanding that is as lost upon modern critics of positivism as it is upon positivists themselves: for example, in his recent book Justice in Robes, Dworkin argues that philosophical significance attaches only to the substance of legal doctrine, there being no philosophically interesting issues relating to law as a social institution (Justice in Robes, Harvard, 2006, 2-3).

Pirie’s article is refreshing because it avoids the recent debates in favour of an investigation into the nature of law as a social and intellectual phenomenon. Law is not simply a set of practices or a body of norms, but an intellectual system (207). Her concern is to explore the idea of law in terms of its form. We might initially suppose that law can be defined in opposition to forms of negotiated order: a supposition that draws a close association between law and government. Is this anthropologically valid? According to Pirie, law is to be identified ‘neither by reference to the negotiation of order, nor by reference to government. It is, rather … identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.’ (id.) The central question is then how law is different from other forms of ideological system (208).

The main body of the article is a criticism of narrower conceptions which associate law too closely with government and the maintenance of order. In addition to excluding much that belongs to Shari’a, Indian and Chinese systems of law, such approaches pay insufficient attention to the nature of law as an intellectual system (holding forth promises of justice) in addition to its functional and administrative aspects. It is the form in which these promises are held out that differentiates law from other codes of morality or ideology: for in law we tend to find an exact system of penalties attaching to the prohibited behaviour, which taken together embody ‘explicit … propositions about how justice and order are to be achieved.’ (220). The promissory nature of these propositions serves to differentiate law from forms of ‘pure’ custom, but equally does not depend directly upon the rise of organized governments.

Later sections of the article develop further the analysis of what specifically belongs to law as an intellectual system, and as a social phenomenon. Its analysis is suggestive rather than comprehensive. Its conclusions offer questions and warnings rather than answers. Law ‘comprises phenomena which share a great many attributes—rules, norms, implementation by judges, formulation by government, enforcement mechanisms, links with social order and justice, a jurisprudence—none of which is instantiated in every example of law. We can think of law in terms of its functions, its instrumental aspects or its ideological and symbolic force. If we over-emphasize some of these attributes to the detriment of others, however, we fail to do justice to our own notion of law. We fail to appreciate its complexity and power.’ (228)

Pirie’s discussion should provide an opportunity for jurisprudential scholars to question some of their deepest assumptions (which is surely essential to the activity of philosophy), and perhaps to recover a sense of the deep and apparently hopeless perplexity that drives philosophical thought. Above all, it may help to refocus attention upon the traditional question of the nature of law, and to reveal rich vistas of inquiry that are untouched by the present jurisprudential debates.

The Ghetto and the Prison

Nov 12, 2010 Daria Roithmayr1 comment

Daria Roithmayr

If there is a single issue that ought to dominate all others in scholarship about race, it should be the hyperincarceration of black men.   And if I had to recommend one piece of scholarship on this issue to read, it would be a recently published essay by Loic Wacquant.  Wacquant contributed this essay (which has no title) to a slim and elegant volume edited by Glenn Loury.  Wacquant’s short contribution is more than just provocative; it is a bit mind blowing, for reasons that I will explain.  The essay draws on a decade’s worth of work by Wacquant, synthesized here into seven short pages.  I am happy to note that, owing to Loury’s visibility, both the issue and Wacquant’s contribution now are finally likely to get the attention they deserve.

Wacquant sets out his argument in four steps.  First, Wacquant argues that hyperincarceration targets a very specific population by race and class:  poor black men in the crumbling ghetto.   Several commentators have suggested that the spike in incarceration rates can be attributed to a general increase in crime and punishment. Using available statistics, Wacquant demonstrates that we are imprisoning more people even controlling for the crime rate; the number of convictions per 10,000 “index crimes” has quintupled, from 21 in 1975 to 106 in 1999.  Moreover, these new convictions are of black men: the predominant race of prisoners has flipped, from 70% white just after World War II to the current rate of 70% non-white.

Second, Wacquant links these statistical changes to the collapse of the segregated ghetto.  Wacquant notes that both the advent of hyperincarceration and the collapse of the ghetto began in the mid-1970s.  Wacquant traces the collapse of the ghetto to a number of social and economic factors, including the shift in the economy from manufacturing to services and white flight to the suburbs.  He then links, both temporally and structurally, the rise of the prison state to the collapse of the ghetto.

Third, and most provocatively, Wacquant proposes that the prison is “an instrument of ethno-racial control,” designed to contain the population coming from the collapse of the ghetto.  In particular, Wacquant argues that the prison has replaced the ghetto as the distinctively modern apparatus of social control.   Where the ghetto marked poor black men merely as destitute and therefore unworthy to participate in social or economic life, the prison now marks them as dangerous and deviant, as a way to justify their exclusion.

Finally, Wacquant argues for a move to common ground as the appropriate political response.  Dismantle prisons because they cost the state too much to run, particularly during this time of strained budgets.  Dismantle prisons because they are self-reinforcing; by taking black men out of neighborhood networks, incarceration aggravates the very problem it is supposed to remedy.

I found Wacquant’s third argument–that prisons are meant to replace the ghetto as a means of social control–to be the most provocative.  But Wacquant is appropriately subtle.   This is not a conspiracy-theory story, nor is it a neo-slavery story.  Although the ghetto was a state created phenomenon (via Jim Crow and zoning laws), the collapse of the ghetto is not state-generated.  At the same time, Wacquant holds the state fully accountable for its response to collapse—the creation of an alternative ghetto to segregate and contain the city’s population of poor black men.

I am most impressed by Wacquant’s brilliant exposition of the complicated relationship between race and class.  Indeed, I chose the piece precisely for this reason.  Wacquant is at his most persuasive when he documents that hyperincarceration targets poor black men.   Indeed, as he points out, the likelihood that black men with some college education would serve time at any point in their lives actually has decreased.   But the city’s poor black men have been left to fend for themselves in the face of an ever-shrinking social safety net, as welfare has become workfare, and now prisonfare.

In Wacquant’s account, the city’ unskilled marginal populations are funneled through the gauntlet of the informal, deregulated job market and the shrinking social welfare state.  Those who fail to make it through this maze intact are warehoused in the remnants of the ghetto and now, increasingly, in “the penitentiaries that have becomes its direct satellites.”

Lani Guinier and Gerald Torres have written about the way in which our most marginal populations serve as the miner’s canary with regard to larger structural arrangements that affect us all.  In this period of economic collapse, where more of the country’s population now faces insecure work and a deregulated informal economy, we would do well to heed Wacquant’s call for alternative strategies to the penal state.

A Neglected Strand of Retributivism

Oct 20, 2010 Matthew Kramer

Matthew Kramer

Although Jeremy Waldron’s article on the lex talionis is not as recent as most of the other writings covered by JOTWELL, I came upon it only a couple of years ago.  I feel that it should be discussed here, because it has not received as much attention as it deserves within the philosophy of criminal law.

Retributivism as a philosophy of punishment has emerged in a multitude of forms, but virtually every retributivist maintains that punishments should fit the just deserts of offenders. That abstract idea has been cashed out with somewhat more concrete principles, each of which is itself in need of cashing out.  Many retributivists invoke the notion of commensurateness, as they contend that the severity of any punishment should match the seriousness of the crime(s) for which the punishment is imposed.  Commensurateness, a cardinal property, consists in quantitative equivalence.  Many retributivists additionally or alternatively rely on the notion of proportionality, as they contend that any differences in the severity of punishments should be correlated with differences in the gravity of the crimes for which the punishments are imposed.  Proportionality, an ordinal property, consists in an alignment between two sets of quantitative gradations.

What Waldron does splendidly in his article is to show that the lex talionis is best understood as an alternative to commensurateness and proportionality, rather than as a version of either of those other principles.  Whereas the lex talionis is most commonly construed as a crudely wooden rendering of the principle of commensurateness, Waldron persuasively argues that it is not a quantitative principle at all.  Rather, it calls for a qualitative correspondence between a punishment and the crime for which the punishment is inflicted.  In other words, it calls for some or all of the wrong-making features of any crime to be reproduced in the punishment that is imposed upon the person who has committed the crime.

As Waldron observes, the wrong-making features of a crime can be characterized with varying degrees of concreteness or abstraction.  When those features are to be distilled for the implementation of the lex talionis, the proper degree of abstraction or specificity is fixed by the basic moral values ─ human equality and moral responsibility ─ that underlie the lex talionis and endow it with moral force.  Choices in the characterization of any such features are to be made with reference to those values.  That is, the characterization, along with the punishment for which it calls, should be such as to reaffirm the fundamental equality between the offender and everyone else in the jurisdiction (including of course the immediate victim, if there is indeed an immediate victim of the particular offense).  Pari passu, it should be such as to uphold the moral responsibility of the offender by accurately capturing the gravity of his or her misconduct.

Waldron does not firmly embrace the lex talionis as an appropriate standard for determining the nature of the punishment that is to be imposed for any particular crime.  He writes: “It is not my intention to argue that [the lex talionis] is the best principle for choosing punishments, only that there is more to be said for it than is commonly supposed” (pp 31-2).  However, he does include a discussion of possible justifications for the lex talionis as a punitive principle.  His discussion surprisingly omits any mention of an important 1985 article by Jeffrey Reiman (“Justice, Civilization, and the Death Penalty: Answering Van den Haag.”  14 Philosophy and Public Affairs 115-48), where Reiman offers quite a sophisticated defense of the lex talionis.  Nonetheless, Waldron’s discussion of possible justifications is illuminating and interesting in its own right.

I am not a supporter of the lex talionis, but my understanding of it was enriched by my perusal of Waldron’s article.  Though his essay has received attention from some philosophers ─ such as Russ Shafer-Landau ─ it has often been overlooked by legal theorists.  For example, a recent article on the lex talionis in a major law journal makes no mention of Waldron (Morris Fish, “An Eye for an Eye: Proportionality as a Moral Principle of Punishment,” 28 Oxford Journal of Legal Studies 57-72 [2008]).  I hope that that neglect will come to an end.

“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide

Oct 6, 2010 W.A. Edmundson1 comment

W.A. Edmundson

Philosophers of law and philosophers of language used to hang out together more.  H.L.A. Hart spent Saturday mornings over at J.L. Austin’s in the 1950s and 60s, hashing out questions of meaning and usage with Paul Grice.  Hans Kelsen did not think much of Wittgenstein, but in the 1920s he chummed around with Moritz Schlick, Otto Neurath, and other members of the celebrated Wiener Kreis, the Vienna Circle of philosophers who were making the analysis of language a foreground concern.  But, as the twentieth century wore on, practitioners of the two specialties wandered apart.  For thirty years on, legal philosophers have tended to dwell on somewhat inward debates over legal positivisms and postscripts thereto, while philosophers of language have been on a great hunt for a semantics of natural languages generally, which has led them to investigate things like naming, reference, and the truth conditions of modal and counterfactual statements.  True, the philosophers of law have tried to keep up with the philosophers of language; but, the philosophers of language with the philosophers of law?  Not so much.  There’s no shortage of legal philosophy that purports to say what philosophers of language would say about law, but next to nothing directly from philosophers of language about law.  Are we legal philosophers getting it right?

The silence from the other side of the table made me uneasy.  So I was excited to run across this essay by Scott Soames.  Soames is Director of the School of Philosophy at USC, where he can lunch with Andrei Marmor, the distinguished philosopher of law.  The essay is the concluding chapter of the first volume of Soames’s collected essays, most of which have to do with technical topics in philosophy of language.  The Introduction to the volume is a useful preliminary survey of his views of such things as why linguistic structures aren’t likely to map onto the psychological substructures of linguistic competence, and the respective roles of semantics and pragmatics, as reflected in his “least common denominator” view of semantic content.  At the end of the Introduction, Soames pauses to reminisce:

There was a time, just a few decades ago, when philosophy and the philosophical study of language were thought to be one and the same.  Then, every significant philosophical question was thought to be a linguistic question.  Thankfully, that is no longer so.

This might mean, “Thankfully, we can go back to doing philosophy,” but in fact what Soames means is that:

today, linguistic semantics and pragmatics, cognitive science, and the general study of language and information are struggling to emerge as productive and interconnected areas of scientific inquiry.  (17)

Philosophy of law is struggling, too, but not, evidently, to do that; and it should not expect an invitation to that party.  Of course, “philosophy of language still has much to contribute to every area of philosophy.”  The concluding essay, “Interpreting Legal Texts,” is meant to serve as our portion.

Soames critiques a number of cases that turned on a word.  PGA v. Martin (is it “golf” if the player rides in a cart?); Nix v. Hedden (is a tomato a fruit, or a “vegetable”?); Smith v. US (does one who barters a firearm “use” it?); and a pair of Boy Scout cases from California (are the Scouts a “business establishment”? a “religious organization”?).  He also takes up Lon Fuller’s “No sleeping in any railway station,” and — though only in footnote — Hart’s “No vehicles in the park.”  The discussions, insightful in their own right, are an effective medium for Soame’s lessons.

One lesson we are to take is that what we say is often more than what the words we use say.  As a consequence, what statutes mean is often more than their semantic content, which is anyway less than we tend to suppose.  Another lesson is that the text’s semantic content, even when it is plain, is not what the interpreter wants anyway.  What the interpreter wants is the wider “enriched” content consisting of what the text was used to say.  What the doctor treating a gunshot victim says by saying “You aren’t going to die,” is “You aren’t going to die from this wound,” and not “You are not going to die, period.”  One further lesson, for judges, is that although “the meanings of legal texts, plus the facts of the case, often fail to determine its outcome … this shouldn’t be taken to show that the content of the law embodied in those texts doesn’t determine the outcome, and mustn’t be used to invite judicial legislation” (404, italics in original).  Finally, even where a case is “genuinely hard” — because even the text’s pragmatically “enriched” content fails to determine an outcome — the court has only a narrow residual discretion, which is constrained by “further principles” that “routinely guide the interpretation of incomplete, inconsistent, or otherwise defective linguistic materials” (404).  Soames does not say what these further principles are, but presumably they include the traditional canons of construction and perhaps doctrines of institutional deference such as the Chevron doctrine.  They most certainly do not include the judge’s “moral and political views,” or “Fullerian or Dworkinian views of … broad social, political, and moral matters,” for which there “may” be residual room within what Soames is convinced are very narrow limits (423).

“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,” as Holmes wrote in Towne v. Eisner.  Much of what Soames has to say may not startle those who have had a legal education.  We have been taught to attend to context, and are in possession of aperçus such as Holmes’s.  It is illuminating, though, to have it explained by someone who makes no pretense of having equivalent training, but who has thought long and hard about how language works and sometimes fails to work.  Soames emphasizes a distinction (already noted) between semantically hard and genuinely hard case, and he divides the latter category into three subcategories.  It would be interesting to try to map his distinctions onto those that have emerged by the toil of those lawyers, judges, and academics who have long worked the jurisprudential fields.  It would also be interesting to figure out how Soames would handle “due process” and “equal protection,” those twin wooly bears of constitutional adjudication.  None of the cases he discusses involve them; but they are sources of much of the clamor against judicial legislation.

A philosopher of language, wanting to make use of the tools he best knows, may miss the (to lawyers, obvious) point that legal and (especially) constitutional interpretation is inescapably, to some degree, a political and moral exercise through and through.  Consider this:

Just as you [viz., whoever you are] have no standing to reinterpret my remark [viz. any remark] to conform to your moral and political views, simply because the meaning of my sentence doesn’t fully determine the content of my remark, so judges applying the law have no standing to reinterpret it, simply because the linguistic meanings of the relevant legal texts don’t fully determine the content of the law. (404, italics in original)

Now, read in a friendly way, this is indisputable; and Soames immediately adds that “other principles” (apparently not meaning anything specifically Dworkinian by this) constrain the judge in carrying through with the interpretative task.  In conversation, the hearer has the option of asking for clarification, lacking which she may choose not to decide what was meant.  Not so with judging.  Soames knows all this, but note the too-easy analogy between the “standing” interpreters generally lack, to use moral/political stuff to fill gaps in remarks generally, with the “standing” judges have with respect to gaps in the law.  The pragmatics of a legislative enactment or a judicial decree is a very different sort of animal compared to a comment or suggestion or even order made by one person to another in conversation (see, e.g, Brian Bix, “Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy?” Ratio Juris 16:281-95 (2003)).  A sentence like “Don’t sleep in the subway, Darling,” normally occurs in a context dramatically unlike that in which “It shall be a misdemeanor to sleep in any railway station,” is normally found.  Soames is aware of this of course, but he seems to want to confine this complication to a place at the tail-end, and to one that “isn’t very large” (423) anyway.  But it may be that the semantics and pragmatics that work adequately in normal discourse may need adjustments for legislation, precedent, etc. right from the start, and all the way through.  And, in the process of making that adjustment, Soames, like any philosopher of language fully domesticated in the peculiar domains of the law, will have to plow again many of the same, familiar furrows.  But I think what he has had to say already merits careful study, for it throws light from a fresh angle on the nature of law and legal discourse.

The Legitimacy of International Law

Sep 9, 2010 Mortimer Sellers

On November 2, 2010 the people of Oklahoma will vote on a “Save Our State Amendment” to their constitution, which would forbid Oklahoma courts from even “considering” international law in their judgments. This proposal (already approved by the Oklahoma legislature) reflects a widely shared belief that international law should be disregarded or actively opposed because it is not as “legitimate” as the ordinary legislation of constitutional democracies. Samantha Besson and John Tasioulas have done lawyers, scholars and the public an enormous service in their volume on The Philosophy of International Law by raising the level of debate about the moral and political standards that should govern the assessment (and development) of international institutions. This book raises fundamental questions about the legitimacy and justice of the international legal order and opens the door to international law as a serious subject of philosophical inquiry.

Modern international law began with Hugo Grotius as an exercise in practical philosophy, and the resulting doctrines continue to make the line between law as it is and law as it ought to be much fuzzier at the international level than it is in most states. This gives philosophers and philosophically minded lawyers real authority in determining the future and actual success of international law. Besson and Tasioulas have collected twenty-nine essays by thirty-three leading philosophers and international lawyers addressing the sources and nature of international law, including the role of human rights, economic realities and democracy in determining the contours of international responsibility. These essays clarify why and whether we should care about or obey the dictates of international law.

The structure of the volume is “dialogical” in that there are two essays on each topic, with the second author responding (more-or-less) to the arguments of the first. This fits with the volume’s purpose of provoking discussion, but also reflects the extraordinary incoherence of contemporary theories of international law. What the contributors to this volume have in common is that they all take the possibility of philosophical reflection about legal values seriously. International relations theory and various forms of post-modernism have tended to sideline the discussion of philosophical questions about law, particularly those of a normative character. The authors in this volume address foundational values of the international legal order without fear, directly facing the necessary implications of human dignity, human rights and global justice, as actually embodied in the doctrines of contemporary international law.

The legitimacy of international law is a recurring theme in every chapter. John Tasioulas and Allen Buchanan introduce the question at the beginning, and subsequent discussions of international democracy, sources theory, adjudication, sovereignty, responsibility, human rights, self-determination, economic law, environmental law, the law of war, criminal law, and humanitarian intervention all come back to the question of what makes law “legitimate”, whether the law as it stands is legitimate, and when certain actions may be legitimate even though they are illegal. “Legitimacy”, in this sense, concerns the moral standards that should guide the formation and evaluation of international law. Tasioulas sets the tone at the outset with a clear and convincing refutation of moral scepticism, as applied to law. This follows an interesting and useful historical chapter by Benedict Kingsbury and Benjamin Straumann, which grounds modern international law on Cicero’s response to Carneades (the Hans Morgenthau of an earlier era.)

Besson and Tasioulas, the guiding lights behind this project, represent a brilliant new generation of philosophers speaking directly to a new generation of lawyers about international law–and they have managed to gather many of the most perceptive and serious scholars on the subject together in one volume. To capture even the essence of their arguments in this short space would be impossible, but in addition to those already mentioned, Amanda Perreau-Saussine, Thomas Christiano, Philip Pettit, David Lefkowitz, Andreas Paulus, Donald H. Regan, Timothy Endicott, James Crawford, Jeremy Watkins, Liam Murphy, Joseph Raz, James Griffin, John Skorupski, Will Kymlicka, Jeremy Waldron, Thomas Pogge, Robert Howse, Ruti Teitel, James Nickel, Daniel Magraw, Roger Crisp, Jeff McMahan, Henry Shue, Thomas M. Franck, Danilo Zolo, David Luban, and Anthony Duff all contributed chapters. To have been present at their conversation would have been wonderful. Reading this book approximates that pleasure.

Most of these scholars are philosophers, or philosopher-lawyers, as is appropriate in a book on philosophy, but this leads to my one criticism, which is that as philosophers they defer to lawyers too much. Contemporary international lawyers are almost totally adrift in understanding the moral, historical and other foundations of their own subject. Besson, Tasioulas and their colleagues offer international lawyers materials that may justify, strengthen or even rescue their discipline from the growing hostility of ordinary people in many nations. Too much deference (for example) to the confused jurisprudence of the International Court of Justice or to the prosperous lawyers who practice before it only weakens the ultimate credibility of universal international law.

I use the word “universal” advisedly in this context, because the great fear about international law, in Oklahoma and elsewhere, is as an alien imposition on the established values of traditional communities. Cosmopolitan lawyers assert broad requirements against local justice on the bald authority of their superior education. This fails to convince, and rightly so, without a coherent explanation of what international law is, where it comes from, and why it ought to be obeyed. International lawyers need a theory to explain when the international legal order should have jurisdiction, and when jurisdiction belongs to the state or other regional authority. There may be some areas where international standards bring us closer to the virtues that we value than local institutions, but not always. Besson and Tasioulas raise questions for philosophers and lawyers that should have been their first concern, but were often overlooked. This is an exciting and very important volume.

The Moral Within, The Law Without

Aug 12, 2010 Ekow Yankah

Ekow Yankah

The common complaint that the distinction between Kant’s moral and legal philosophy is unknown is not strictly true.  Many engaged in legal philosophy have encountered, time and again, the reminder (or admonition) to treat with care the distinction between Kant’s ethics and the rechtlehre.  Further, Kant’s political philosophy has been the subject of many fine books over the last quarter century.  What is difficult, rather, is to keep the distinction foremost in one’s mind when the philosophical heat, so to speak, is turned on.  Well intentioned, one notes the critical distinction between the purity of a will acting on moral reasons undergirding Kant’s ethics and the preservation of equal external freedom on which Kant’s political philosophy is based.  Yet when thorny questions are leveled, it is too easy to slip into familiar groves, weighing whether an action is appropriately prohibited by measuring its legitimacy against, say, the Categorical Imperative.

One problem, I suspect, is the lack of a text, close at intellectual hand, which has carefully explored Kant’s political philosophy and explicated its branches  in a wide range of subject matters.  Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy could by its intelligence, clarity and ambition fundamentally arrest and repair the sloppiness with which Kant’s political and moral philosophy are too often jumbled.

Ripstein begins by clearing away the notion that Kantian legal theory can be isolated by translating Kantian moral prohibitions into legal ones.  Instead, he explores, with both depth and simplicity, Kant’s distinction between moral and legal duties.  Ripstein highlights the basis of Kantian legal theory as the freedom from interference with external freedom.  The fundamental idea is that the basis of legal right is the ability to decide for yourself what your purposes will be or, put otherwise, to be your own master and slave to none.  Thus, in order to ensure freedom one may use force to hinder those who would interfere with another’s external freedom.  Indeed, for Kant, the claim is stronger – freedom encapsulated in legal right is constituted by the ability to employ coercion to secure all from interference with their external freedom.  Thus, force is a constitutive element of freedom.

When described with the clarity and care Ripstein displays one may underestimate the full depth of the idea.  To take one example, Ripstein explores the long leveled critique that freedom, or more often put liberty, cannot serve as the normative basis for law as the preservation of one person’s liberty must always come by restricting another’s.  After all, the right to be free from violent assault requires restricting the liberty of the person wishing to assault you.  Ripstein illustrates how the Kantian model dissolves this critique in an intuitive way – because liberty is freedom from external interference, the assailant was never “free” to assault you in the first instance.  Not only does this undermine the apparent critique but it has the benefit of being perfectly intuitive, the kind of thing you would tell a child when they protest their rights were violated by not being able to take little sister’s toy.

Secondly, focusing on external freedom avoids justifying a legal system by welfare distribution or trade offs.  Kantian legal right is focused on protecting your freedom from being dominated by others, it is not based on one’s ability to achieve one’s ends and collect their rewards.  Freedom is the ability to aim your purposes at your ends not the right to succeed in reaching them.  In one nice example, Ripstein points out that if someone buys the last quart of cream you wished to use for cooking dinner tonight, they have done you no wrong.  While you remain free to set your own goals the world does not owe you successful conditions in achieving them – for that would require dominating others to force them to manufacture your success.

The remarkable aspect of Ripstein’s book is his systematic explication of Kantian political theory through field after field of law.  Ripstein works his way from the inherent freedom one has in her body to set purposes to the idea that one must be able to make useable unowned items instruments of one’s will.  So Ripstein illustrates how starting from external freedom, one can work their way to a distinctive model of Kantian property.  Likewise, Ripstein sees in the freedom to control one’s purposes the ability to join ends that is the basis of contract.

Of particular interest to political theorists is Ripstein’s exciting discussion of Kant’s thoughts on legal rights in the state of nature and the duty to establish civil society or a condition of right.  For Kant, legal rights only existed in the face of a omnilateral will that was empowered to act for all its subjects.  In this manner, legal officials are empowered to employ coercive power by the will of all do not make one the master of another.  Rather, all were equally masters of themselves.  Importantly, because legal rights exist in virtue of such a will and they are indeterminate or provisional until there is a political state – a condition of right.  This leads to intriguing questions on Kantian duties to exit the state of nature, enter into and maintain civic society.  These questions, I believe become even more poignant when one begins to consider a modern world of terrorist threats and government which justify many dark actions to preserve order.  (Related, Ripstein discusses Kant’s infamous refusal of a right of revolution.)  Ripstein also has a thoughtful discussion of how many of the features of the modern state can be understood as justifiable in light of preserving freedom and preventing anyone from being mastered by others.  Kant’s view that the state must provide for the poor from public funds is a core example.

A book of this ambition can not answer every particular question to the satisfaction of all.  Some may find it overly convenient that many state activities that liberal academics favor can all be redescribed as freedom protecting as opposed to welfare enhancing.  Further, despite the theme of book being the distinctiveness of Kant’s political theory from his ethics, one still cannot help but to wonder if they can remain perfectly hermeneutically sealed or how they fit together.  Ripstein’s explanation here may seem overly subtle to some.

Still, Ripstein’s book is a remarkable accomplishment; one I imagine will repay scholars returning to it time and again.  It is a compliment to the author that in reading this book one so often finds the ideas nearly obvious.  It is Ripstein’s clarity that leads the reader to realize or, more honestly, imagine that they had long held this view of Kant.  By building a wonderful and coherent scaffolding with which scholars can survey the landscape of legal doctrine Ripstein may well fix and rescue Kant’s distinctive legal philosophy.

Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition

Jul 8, 2010 Michael Green

Michael Green

Anglophone philosophy of law is remarkably focused on one book – The Concept of Law by H.L.A. Hart. This may be a mistake. It is hard to imagine a single book – much less an introductory work for undergraduates written almost fifty years ago – playing a comparable role in, say, the philosophy of language or mind. But given that The Concept of Law does occupy such an important place in the philosophy of law, it is all the more important to get what Hart said in the book right. Julie Dickson’s recent article does, in a way that has importance for the field more generally.

Hart argued that at the foundation of each legal system there is a practice among officials of enforcing norms only if they satisfy certain ultimate criteria. For example, in England officials enforce norms only if they can be traced back to the Queen-in-Parliament. Hart calls these enforcement criteria the rule of recognition for the legal system.

It is commonly said that the rule of recognition is a conventional rule. As Dickson defines it, a rule is conventional if the reasons that participants have for following the rule include the fact that others do so as well. The classic example of a conventional rule is driving on the right side of the road. An essential reason that we have for driving on the right side of the road is the fact that other people do so as well.

Dickson argues that in the first edition of The Concept of Law Hart did not claim that the rule of recognition is conventional. Although he thought it was important for the existence of a rule of recognition that officials accept the rule as binding upon them, he did not think that they had to have the same reasons for acceptance, and he was agnostic in general about what their reasons were and whether they were valid. Hart offers as possibilities “calculations of long-term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.” One judge might accept the rule of recognition as binding because of his oath of judicial office. Another might do so because it is the best way of feeding her family. And so on.

Dickson concedes that in his “Postscript” to the second edition of The Concept of Law, Hart slips and suggests, at least at times, that the rule of recognition is indeed conventional. Much of the “Postscript” was written in response to Ronald Dworkin, who argued that Hart’s theory had failed to explain how judges have reasons for conforming to the rule of recognition. Dworkin offered, as a lifeline for Hart, those reasons for conformity (such as coordination) that apply in conventions. Hart took the bait, as have many philosophers of law who came after him.

Dickson argues that Hart shouldn’t have taken the bait. Under a rule of recognition approach, official conformity is needed solely to identify a norm as law. It need not be used to explain why officials have a reason, or think they have a reason, to treat the rule of recognition as binding. In support of her argument, she considers Andrei Marmor, who, in Positive Law and Objective Values (Oxford U. Press 2001), offered what he described as a conventionalist account of rules of recognition. She argues that even in Marmor’s account official practice simply identifies what is law. It does not explain the reasons officials have, as matter of political morality, to adjudicate in accordance with the law. Officials may play the “legal game” for any number of reasons – including very bad ones.

About all this, I think Dickson is clearly right. It is particularly important to emphasize, as Dickson does, that – except in the “Postscript” – it was not Hart’s goal to explain why there are in fact reasons for officials to conform to the rule of recognition. In refraining from offering such an explanation, Hart was wise, for it is probably false that the mere existence of a rule of recognition among officials necessarily gives each official a reason, even a prima facie reason, to conform to the rule.

But I have some questions about Dickson’s reading. Assume that English officials are so committed to enforcing only norms emanating from the Queen-in-Parliament that each would intransigently continue doing so even if the others did not. One way of describing these officials is that they do not care whether the norms they enforce are law, in Hart’s sense of the term. As Dickson describes his position, it appears that Hart would deny that the norms these officials enforce are law. The existence of a legal system requires that officials are constrained by their agreement when identifying norms that are candidates for enforcement, even if such agreement need not ultimately justify for these officials why they choose to enforce these norms. Dickson does not explain in her article why Hart took this stance. Furthermore, it appears, at least to me, that this role for official agreement means that there is a weak sense in which Hart’s theory is conventionalist.

Rethinking Legal Postivism

Jun 7, 2010 Connie Rosati

Connie Rosati

Survey courses in analytical legal philosophy commonly include brief excerpts from the jurisprudential writings of Jeremy Bentham and John Austin. After a cursory treatment of their work, with emphasis on the “command theory” of law, the focus shifts to H.L.A. Hart’s famous critique of Austin and then to Hart’s own influential version of legal positivism. The prevailing view has long been that Hart’s critique of Austin was decisive and that Hart’s own theory of law expresses legal positivism’s “core commitments.” Both bits of the conventional wisdom come under scrutiny in a pair of provocative recent articles by Frederick Schauer.

In “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Schauer explains why, contrary to the prevailing view, Austin’s account of law may have been more nearly accurate than Hart’s. He acknowledges that on many points, Hart identified important deficiencies of Austin’s account. Austin focused, for example, on duty-imposing rules, neglecting the critical and sometimes constitutive role of the power-conferring rules so pervasive in advanced legal systems. And his notion of the sovereign oversimplified legal systems in multiple ways by essentially treating all of law on the model of an absolute monarch’s imposition of rules on obedient subjects.

Perhaps most important among Hart’s criticisms was that Austin failed to account for the normativity of law because his emphasis on sanctions and coercion led him to overlook the committed standpoint of officials who take up the internal point of view, who see the law as giving reasons and creating obligations. It is precisely here that Schauer invites us to reconsider the relative merits of Hart and Austin’s theories, suggesting that such a reconsideration may lead to fruitful inquiry into what a theory of law should be expected to accomplish.

Schauer maintains that although Austin erred in overlooking the non-coercive aspects of law, those who have apparently been influenced by Hart may err in dismissing the importance of sanctions or coercion. He suggests at least two difficulties for Hart’s critique of Austin. First, he argues, in a modern regulatory legal system, citizens may, for good reason, experience law as more coercive than Hart appreciated. Insofar as a theory of law should capture the most salient features of a modern legal system, insofar as descriptive or empirical adequacy is among the conditions on an adequate theory of law, Hart’s view would seem to do worse than Austin’s. Of course, many legal philosophers would reject such empirical considerations as irrelevant, arguing that a theory of law should concern itself only with the “essential features” of law—those that would figure in an analysis of the concept of law. Sanctions and coercion may be common to actual legal systems, but they aren’t essential. To take such a position is, however, to choose sides in a deeper debate as to the purpose of a theory of law, Schauer stresses, and it is far from obvious that theories of law should concern themselves with the concept of law rather than with common features of paradigmatic legal systems.

Second, Schauer takes issue with Hart’s appeal to ordinary language to argue that being obligated is different from being obliged. The linguistic data, including language from court opinions, is far from unequivocal, and so the appeal to ordinary language provides insufficient grounds for rejecting Austin’s understanding of legal obligation. Even if sanctions are not an essential feature of duty generally, they may be an essential feature of distinctively legal duty.

In a companion piece, “Positivism Before Hart,” Schauer takes on the second bit of conventional wisdom. His aim is to show the continuing relevance of Bentham and Austin’s versions of legal positivism to jurisprudential inquiry, contrary to the prevailing view, which treats Hartian positivism as supplanting these earlier versions. Schauer contends that it distorts the history to treat Hart’s as the exclusive or best understanding of legal positivism’s core commitments. He distinguishes among three forms of legal positivism, all of which he claims were probably held by both Bentham and Austin. Conceptual positivism, which dominates contemporary understandings, emphasizes the Separability Thesis. Normative positivism treats concepts as social artifacts and holds that the conceptual separation of law and morality depends on a normatively informed choice of a concept of law. Decisional positivism, unlike the other kinds, is concerned not with understanding what law is so much as with institutional design and procedures of legal decisionmaking. This latter, more neglected form of positivism, focuses on limiting the discretion of officials by restricting the sources of law to ones that can be readily identified and by creating legal institutions that operate according to fairly precise rules.

Those who adhere to the received view, Schauer says, will contend that only conceptual positivism expresses what is central to legal positivism, which most fundamentally concerns the concept or nature of law. To the extent that Bentham, Austin, and other legal positivists, including Hart, might have accepted normative and decisional positivism, that is purely incidental. Schauer reminds us, however, that what it is for something to be a “core commitment” is contestable. Conceptual positivism, he insists, has neither historical nor obvious philosophical priority over normative and decisional positivisms, and so without more argument, we have little basis to conclude that the latter are less deserving of the “positivist mantle.”

Schauer’s opening salvo raises more questions, of course, than it attempts to answer, but that, in the end, is just the point. Treating conceptual positivism as central assumes that there are concepts, that there is such a thing as “analysis,” and that the concept of law is sufficiently well formed to admit of analysis. But are these assumptions well founded? With regard to normative positivism, we might wonder whether, in the end, it is a coherent alternative. For if, as many philosophers would insist, concepts are abstract entities, then they are not objects of normative choice and social construction; normative positivism cannot be an alternative to conceptual positivism. As for decisional positivism, we might well wonder whether it can stand on its own independently of conceptual or normative positivism. If not, then arguably it is less deserving of the positivist mantle, though it may be no less deserving of our attention on that account.

Logical space exists, too, for forms of positivism that Schauer does not consider and that might compete for centrality, depending upon what makes most methodological sense and what best answers to the goals of a theory of law. Consider a kind of “reforming positivism” that offers a reforming definition of ‘law’ as a part of theory construction responsive to certain natural and social facts about human legal practices. Or consider a form of positivism that aims at a “real definition” of law rather than conceptual analysis.

Schauer’s essays offer a welcome invitation not only to revisit Bentham and Austin with an eye to their broader jurisprudential concerns. They urge us, in Schauer’s typically clear and fair-minded manner, to suspend the received view, while exploring anew a host of questions not only about legal positivism, but also about methodology and theory construction in the philosophy of law.