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Taking Theory Out of a Participatory Cul-De-Sac

Jeff Pojanowski, Reevaluating Legal Theory, 130 Yale L. J. 1300 (forthcoming, 2021), available at SSRN.

Reevaluating Legal Theory, by Jeff Pojanowski, is a review essay on Julie Dickson’s work on indirectly evaluative legal theory takes in her 2001 book, Evaluation and Legal Theory, and her subsequent writing on the topic. More than this, it situates Dickson’s work within wider jurisprudential debates, preceding and continuing after her contributions. The essay amounts to a detailed guide through the terrain of jurisprudential methodology, which is both informative and stimulating, both cautious and boldly innovative. The reader is invited on a journey to be undertaken with less than favourable weather conditions, taking place under the menacing clouds gathering from the positivist/anti-positivist conflict. The route has been selected not so much as to feature moments of breathtaking vistas, as to require the reader to trudge through disappointing locations which have not lived up to their proclaimed attractions. We have to confront a dead end, or cul-de-sac (Pp. 1300, 1306), as well as admitting to being on the road to nowhere. (P. 1324.) Disappointing as this may be, one has to admire the instructive commentary accompanying each mis-step along the journey. Ultimately, this prepares us for the promise of a brighter destination, which holds out the hope of delivering what previous stopping points have failed to deliver.

Pojanowski characterizes what Dickson has sought to achieve by her indirectly evaluative approach as a dilemma for her: in reconciling within a concept of law “features of law that are (a) necessary or essential to all legal systems, based on (b) what those subject to the legal system find important and significant about law (c) without imposing a morally evaluative filter on those important and significant theoretical necessities.” (P. 1313.) At the heart of this dilemma is the need to bridge the contingent, relativistic, or particularistic perceptions discoverable at (b) with the universal features required at (a). (Pp. 1315, 1320, 1307, 1322.) This is exacerbated by a tension, or even outright conflict, between the participant perception and the theorist perception of what features are significant at (b). (Pp. 1317 n.86, 1319, 1323, 1328.) There is no easy fix available to the theorist so as to be able to impose uniformity on the range of participant perceptions of those features.

If those features of law are not to be identified by a moral filter (as (c) insists), then it appears resort must be had to a social theoretical approach. (Pp. 1304, 1313.) However, Pojanowski’s survey of options on offer in Part II clearly returns the verdict of not plausible. A naturalist approach cannot be squared with the emphasis Dickson places on participants’ perceptions. (Pp. 1317-18.) A hermeneutic approach does not lend itself to the normative neutrality and essentialism required by Dickson. (P. 1319.) Nevertheless, Pojanowski commends Dickson for her “resistance to both the naturalist’s externalist approach to law and the hermeneut’s radical particularity.” (P. 1321.)

Still, Dickson’s basic dilemma remains unresolved. Pojanowski spends a number of pages expanding on the radical particularity and debilitating relativism of deep hermeneutics (Pp. 1321-24), concluding: “What universal, non-normative framework allows Dickson to transcend this particularity is a question unasked and therefore unanswered.” (P. 1324.)

Pojanowski’s own proposal for a way out of the cul-de-sac is advanced unapolegetically from the natural-law side of the conflict where Dickson is found in the opposing camp. Yet it is made without forceful polemics, in a measured and, even, tentative manner. (Pp. 1326, 1329-30.) It relies on a number of steps to break out of the “hermeneutic circle.” (P. 1324.) First, he follows Alasdair MacIntyre’s insistence that the participant’s self-understanding needs to be supplemented by the theorist. (P. 1325.) Secondly, he acknowledges with Charles Taylor the presence of a “value slope” present in theoretical accounts of social behaviour. (P. 1326.) This amounts to “an overarching judgment about the point of the practice” that theorists “cannot help but presume to share with the participants whose actions they seek to understand.” (P. 1327.) Thirdly, he amplifies this teleological aspect with a central case methodology. (P.1327-29.)

Finally, Pojanowski retains the need for a viable social theory which can genuinely present the participant perspective while evaluatively refining its central case as incorporating essential characteristics of law – requiring “a metaphysics and ontology that is richer than reductive naturalism and more realistic and hardheaded than the subjectivity of social constructionism.” (P. 1329.)  For this he suggests the resources of critical realism. (P. 1329-30.) By this point, it is evident that Pojanowski is not resolving but disposing of Dickson’s dilemma, in permitting the directly moral evaluation which she sought to banish at (c).

The culmination of Pojanowski’s approach is found in his proclamation of  a “moral and social universe” shared between theorists and participants in the practice. (P. 1329.) Before this is dismissed as nothing more than resorting to base polemics by the natural-law camp, it is important to note two observations he makes, indicating a less bellicose and more reasonable engagement in debate. One is to suggest that the rejection of moral evaluation within an understanding of law by positivists such as Bentham and Hart was tied into their own wider philosophical commitments, accompanied by a related value slope. (P. 1330-31.) The other is to admit that his approach is tied to his own “moral and even metaphysical commitments.” (P. 1331.)

Given the thoughtful and modest tone of Pojanowski’s proposal, this essay deserves careful attention and should stimulate further exploration of the important issues it raises. Foremost, perhaps, among these is the suggestion that the effective realization of analytical necessity may be conditional upon metaphysical commitment.

Cite as: Andrew Halpin, Taking Theory Out of a Participatory Cul-De-Sac, JOTWELL (April 9, 2021) (reviewing Jeff Pojanowski, Reevaluating Legal Theory, 130 Yale L. J. 1300 (forthcoming, 2021), available at SSRN),

Beyond Exclusion

J. E. Penner, Property Rights, A Re-Examination (2020).

In my last year of law school, through the dark days of an Alberta winter, I read a book about property law by a young professor visiting from England. It was a dazzling book, brilliant and witty, learned and ambitious. It made clear that the idea of property was the proper subject of philosophical inquiry, something both obvious and marvelous that would repay close attention. That book, The Idea of Property in Law (1997), and its author, James Penner, have stood as a source of inspiration for property theorists (myself included) ever since. Now almost twenty-five years later, James Penner has revisited that account of property in a new book, the aptly-named, Property Rights: A Re-Examination.

What was so striking about The Idea of Property in Law, then and now? The first is its attempt to account for property in terms of its two essential features: the excludability of others from the object of the property right (the thing) and the separability of the thing from its owner. The second is its attempt to reconcile the idea of property as a right to a thing with the idea of property as a correlative jural relation. Penner insisted that property was both relational and a right to a thing and indeed that the relationality of property depended on its thingness. His claim was that the thing (the res) mediates between the duties of non-owners and the rights of owners. Property rights are correlative, on Penner’s account. Unlike other private law rights, they depend on the mediating role of things to achieve that correlativity. An owner may enter into any number of direct, personal relationships with others, individuals who become that owner’s tenants, licensees, buyers. But the owner’s relationship with everyone else is on a different footing, Penner pointed out. They may have no personal relationship with the owner at all: Their relationship to him is only “through his property” and that relationship is regulated by a general duty not to interfere with the property of others. (1997, P. 27.)

Penner’s account was not just a blueprint for thinking about property in terms of exclusion; it also was a devastating attack on a previously dominant contemporary account of property as a bundle of rights. The bundle-of-rights approach had taken the view of property as a right to a thing to be incompatible with a legal understanding of property rights as jural, involving correlative rights and duties. The force of Penner’s attack came not only from showing what bundle of rights theories missed about the nature of property (exclusion and separability) but also from explaining how property was a distinctive, in rem form of jural relation. Bundle-of-rights thinking has never fully recovered.

In Property Rights, A Re-Examination, Penner deepens and extends his account of property with his signature clarity and vigor. In this new book, he argues that the central case of property, ownership of tangible things, has a tripartite structure, composed of a right to exclude and two title-powers, the power to grant possessory licenses and the power to deal with title in a variety of ways, by granting lesser titles in the form of a leasehold or transferring title outright to someone else. (Other forms of property, like intangible choses in action, do not have exclusion as a basic norm, on Penner’s account: intangible property does not require exclusion because, he argues, there is nothing to exclude anyone from.)

There are two important insights in Penner’s book that will continue to guide thinking about property in law for legal theory. The first concerns Penner’s revisionist approach to Hohfeld’s famous analytical framework of jural relations. Penner works out in more granular detail how the correlativity of rights and duties, powers and liabilities in private law is achieved only through what he calls the mediating function of rules—and it is these general rules, not the particular jural relations they generate, that reveal what is important and distinctive about the idea of property. The mediating function of property law consists in property’s use of impersonal, epistemically undemanding rules, chief amongst which is the duty not to interfere with property that is not one’s own. This marks, I think, an important shift in philosophical focus, from the personal, rights-based relations that property generates (how things stand between you and me with respect to a particular thing) to impersonal rules (governing how we relate to things and the general duty of non-interference with things that do not belong to us). Penner’s structural insight about property law is that the latter explain the former. A second insight, made explicit in his new book, is Penner’s view that our common interest in the Earth sets land apart from other things. Our common interest in the planet, our shared habitat, is not adequately served by a system of private property rights in land, he suggests. That is not because we own the Earth in common but because, in a sense, the Earth as our home is inseparable from us. As such, it is not the kind of thing that ought to be treated as the object of property in law. While Penner does not fully explain what it means for the Earth to be a part of us and so not appropriately the object of property rights, he sets out the contours of such an account and why it matters.

Property Rights: A Re-Examination completes the task Penner began a quarter century earlier in The Idea of Property in Law and offers a thicker philosophical foundation for his account of the nature of property and the interests that justify it. In doing so, this book will no doubt serve to inspire another generation of philosophically-minded property scholars.

Cite as: Larissa Katz, Beyond Exclusion, JOTWELL (February 3, 2021) (reviewing J. E. Penner, Property Rights, A Re-Examination (2020)),

Brief Notes on Validity and Justice

Köpcke’s Legal Validity — The Fabric of Justice is an extremely rich and significant book which displays the excellent analytical and philosophical gifts of its author. It is, to my knowledge, the first book-length treatment of its subject, and contains much food for thought, and comfort, especially for hard and soft positivists. It is a manifesto for neither of those arguments, but its central topic, legal validity, is a preoccupation of both. But its treatment of its other central topic, justice, provides numerous arguments that are of keen interest for natural lawyers. The book, then, puts new ideas onto the table that promise to help break new ground in existing debates about the nature of law.

This brief review cannot hope to mention, even in passing, all of the many insights and lines of argument contained in the book, and, where necessary, simplifies points that are in fact very complex. Furthermore, since this is a review of what the reviewer likes about the book, it will for the most part refrain from intellectual criticism of some of the book’s arguments. I shall, however, raise parenthetical questions. (These are friendly questions. I do not suggest that these questions particularly disturb the author’s account, merely that they are raised by that account.)

It should be noted that the book’s project is pursued further in another book by the same author, A Short History of Legal Validity and Invalidity (2019) that is not reviewed here.

The book begins by drawing attention to the numerous contexts in which lawyers and legal scholars talk about legal validity: legally valid marriages, passports, licences and legally valid criminal statutes. (P. 1.) It asks (i) whether the uses of the term ‘validity’ across these contexts are united by underlying similarities; (ii) what is the moral import of legal validity; and (iii) whether legal validity is limited? (Pp. 3-4.) It answers (i) by noting that legally valid acts are always made, and always amount to a legal power to change legal relations; (Pp. 4, 14) (ii) by replying that legal validity makes possible, and defends, crucial aspects of human good, through ‘specific convergence’ (P. 4); and (iii) by answering that, although legal validity brings specificity to aspects of human wellbeing that are under-determined, it cannot completely close off room for human choice without annihilating human wellbeing. (Question: if legal validity is always a power, what is the significance—legal and moral—of rights, immunities and liberties?) It is an important characteristic of legal validity, or rather of legally valid acts, that they are often the product of many minds at different points in time. (P. 5.) For, by contrast, a tyrannous or repressive regime would typically involve acts of a small number of officials deciding everything about human conduct in advance.

Next, the book briefly examines the treatment of legal validity, or valid legal rules, by Hart and Raz (Pp. 20-24), but the book’s own examination begins (P. 26) with the claim that legal validity is a form of ‘say-so’, e.g. by making an application or concluding a contract. By saying so, one changes one’s legal position (and therefore the legal position of another or others). (Question: is the say-so itself capable of being valid or invalid? Would it thus lose explanatory power?) Oftentimes, one’s say-so produces changes that are not envisaged in the mind of the agent him/herself: for example one rarely reads the lengthy terms and conditions to which one is ‘agreeing’ when downloading an update to a computer’s operating system. But legal relations are changed nonetheless. For this reason it is necessary to contrast certain ranges of legal changes (such as a contract of employment ending one’s entitlement to unemployment benefit) from the acts that trigger those changes. (Pp. 49-50.)

Because a legally valid act comes into being by saying so, the book enters into an analysis of speech-acts (ways of doing/acting by saying) (Pp. 37-48) but wisely avoids a foray into formal semantics (theories of substantive meaning). (Question: is something always legally so because it has been said? Are there not some standards that are so prior to being said? Common law principles/‘rules’ are given their first expression by judges but are held to have existed unformulated and implicit in the common law.) It might be wondered how legally valid acts (one’s say-so) can exist over time, but it is obvious that legal powers and relationships last over time, or ‘circulate’ as the author puts it. (P. 51.) Furthermore, it is possible to commit unintentional legally valid acts, for legally valid acts manifest an intention, but not necessarily an intention to manifest an intention (P. 55), for example by entering into a contract to which one does not wish to be bound, and it is for this reason that the law contains provisions for the avoidance of such acts: the need for witnesses, procedures or other formalities. (Pp. 54-55, 58.) (Question: a tortious wrong changes legal relations unintentionally, but is surely not a legally valid act?)

Valid choices can be identified without recourse to justice. (P. 69.) This makes validity hazardous, but the law achieves justice not despite but because of this feature. For justice requires ‘specific convergence’: the convergent conduct of many persons following specific patterns; it highlights the specific conduct that is due from each individual in the context of a human good that can only be brought about by collective efforts, e.g. refraining from maliciously injuring another as an aspect of promoting the human good of health. (P. 71.) But such conduct only becomes ‘especially apt’ (due?) when there is a context of other practices that foster that good (such as clean air, water and easy availability of food). Such convergent conduct does not mean the same conduct: a tax system typically does not require the same contribution from every person. (P. 74.)

It is necessary to distinguish the law’s marking mechanisms from its enforcement mechanisms (P. 82); both are required for convergence, but legal validity is the law’s mark (P. 83); it is not only a mechanism for change, but a signal that a change has happened. The identification of a valid choice must not be based predominantly upon its merits or content. (P. 87.) (Question: what is the scope and force of this ‘predominantly’? Could this, e.g. leave open the door to natural law theories?)

The next part of the book’s argument is subtle and complex, and impossible to summarise in a short review. It deals with ‘reasons to empower’, which are considerations of justice (Pp. 101-118): these involve four types of reasons: expertise and capacity, proximity, the rule of law and self-direction. The book’s analysis in these pages summarises the principle of subsidiarity and its implications, and contains a lengthy discussion of the rule of law in a manner reminiscent of Fuller: not only in kind, but also in the ambition to connect the abstract requirements of ‘inner-morality’ with concrete legal concerns. If it were possible to identify the best part of an excellent book, this would be it.

In the book’s final chapter, we are told that justice requires the law’s positivity, that is (i) its relative determinacy, (ii) its relative identifiability, and (iii) that it is relatively targeted in approach. What stands out in this section is the following proposition: ‘By the law’s positivity I mean the fact that the legal positions persons are in at any point are determined by the legal meaning of valid acts rather than by moral considerations that are not part of the legal meaning of valid acts.’ (Pp. 124.) Critics may come to ponder the significance of this proposition alongside Gardner’s definition of positivism and Raz’s sources thesis. (Pp. 151-52.) (Question: if moral considerations are sometimes part of the ‘legal meaning’ of valid acts, how does one distinguish between this morality and the morality that is not part of legal meaning? For this is unlikely to be amenable to sharp distinction.)

Later, the author repeats the warning given in this section that ‘validity could not serve as a technique . . . if identifying valid decisions predominantly turned on moral judgments.’ (P. 160.) But I close this very brief and exceedingly schematic review with a quotation from its last page (I hope the author will forgive the very short treatment given to the book’s very rich and complex arguments): ‘Validity makes it possible to craft just relations between persons by dressing those relations in clothing that hides their justice from view. This is why injustice, too, can bear validity’s mark.’ (P. 163.)

Cite as: Sean Coyle, Brief Notes on Validity and Justice, JOTWELL (November 23, 2020) (reviewing Maris Köpcke, Legal Validity — The Fabric of Justice (2019)),

The Mother of All Subsidies

“Capital = Asset + Coding” is the axiom that serves as Katherina Pistor’s tool of analysis, to lay bare the role of law in the history of capitalism. An asset can be anything—a plot of ground, a machine, an idea, a debt, a sequence of molecules—but an asset becomes capital when, but only when, it has been “coded,” that is, when it has been endowed with specific modules of legal protection: she calls them priority, durability, universality, and convertibility.

Pistor, the Edwin B. Parker Professor of Comparative Law and Director of the Center on Global Legal Transformation at Columbia Law School, laments that “economists … have clung to the notion that capital is a physical input, one of the two factors of production, when in fact, capital has never been about a thing, but always about its legal coding; never just about input and output, but always about the ability to capture and monetize expected returns.” (P. 116.) Her book has won awards already, including two “best books” citations from the Financial Times. The financial press is taking heed, and legal academics should, too. This wonderful book is destined to inform the difficult way ahead, as global capitalism’s second crisis in a dozen years overwhelms us.

Lawyers have enclosed all manner of assets in these four modules of protection. “Priority” determines who has an enforceable claim on an asset, and in what order. “Durability” is the possibility of capital surviving the death of an owner or the dissolution of a partnership or the claims of a creditor or regulator. “Universality” protects the capital owner against all comers, wherever the asset may be, at home or abroad, or nowhere at all. “Convertibility” means that capital, in whatever asset, wherever held, can be exchanged, on demand, for “state money.” (P. 3.)

The book exposes the continuity over centuries that connects the feudal estate, and its exotic encoding, to the even more exotic collateral debt obligation and credit default swaps circulating in the run-up to 2008, and to the blockchained private currencies of the moment. We lawyers are the masters of this code. Legislatures and courts are the late-comers who ratify—but rarely disturb—what the lawyers do in service to private capital. It was the English solicitors who enclosed the commons for the landed gentry while shielding their enclosures from the reach of creditors. It was the lawyers too who devised debt instruments for the creditors, and who later, as ingenious “conveyancers,” eventually broke open or conveyed-around the code-laid-down. It is the legal code-meisters of our era who have enclosed the digital commons and even segments of the genetic code, converting these raw assets into capital, and then into fabulous private wealth for the few, in the midst of the sinking expectations of the many.

One of many examples: Google owns the data inputed to and generated by the program PageRank —not as a matter of patent (it was Stanford’s, and has expired), but as a trade secret, which is not time-limited. It amounts to a lawyer-devised genus of “data-generating patents” (P. 128) unknown to statute. Pistor calls this and like maneuvers “the second enclosure (this time of knowledge rather than land)…We are now in danger of losing access to our own data and to nature’s code for the sole purpose of giving select asset holders yet another opportunity to expand their wealth at the expense of the rest.” (P. 131.)

Universality and durability are the modules that give capital wings to fly from one jurisdiction to another, as if on “legal steroids,” (P. 9) endowing capital with freedoms that not even the wealthiest natural persons can know. “Capital coded in portable law is footloose; gains can be made and pocketed anywhere and the losses can be left wherever they fall.” (P. 9.)

The limited-liability corporation is a key invention: corporate investors stake only what they pay for shares. The uniquely anglophone device of the “trust” adds another durability: an asset settled into a trust is shielded from creditors of the settlor, of the beneficiary, and of the trustee.

The corporate form and the trust allow practically limitless subdividing, cloning, and nesting, and enable capital to elude the taxing and regulatory authority of the state. Coding can turn a firm into a “capital-minting operation,” in addition to or instead of a business participating in the real economy. (P. 48.)

To illustrate, Pistor performs an autopsy of Lehman Brothers, in its transmogrification from a retail operation in antebellum Montgomery, Alabama, set up by three Bavarian immigrants, to a go-to funding source for clients of Goldman Sachs, to a holding company “with 209 registered subsidiaries in twenty-six jurisdictions” and “hundreds, if not thousands, of special-purpose vehicles, or SPVs, in the form of trusts or limited liability companies” (P. 51) on the verge of its collapse in September 2008, precipitating the Great Recession. Tranched and nested again and again, the underlying assets—in essence only IOUs—became inscrutable. Nobody knew what they were buying and, until the music stopped, nobody cared. The tale has been told elsewhere, yet Pistor’s unpacking of the legal devices involved is novel and chilling.

She spotlights the importance of a shift in the choice-of-law rules. The once-dominant “seat” or “real-seat” theory required firms to incorporate in any jurisdiction where they do business, if they wished to enjoy the benefits of doing business there as a corporation. With the ascendance of neoliberalism, real-seat theory was unseated in favor of “incorporation theory,” which allows a corporation to incorporate in its favorite jurisdiction and nonetheless to enjoy the advantages of the corporate form everywhere it does business—assuming those places accede, as states practically must to play in a globalized economy. Capital is unwilling to call unless it can bring its favorite corporate law along.

Incorporation theory makes it possible for corporations to choose the tax rate they wish to pay. Pistor cites the case of Apple in Ireland. Apple was booking its EU revenues in low-tax Ireland until the EU—despite its adherence to incorporation theory—stepped in and docked Apple for having taken “illegal state aid.” Even so, “tax” and “regulatory arbitrage” and a race to the bottom in labor and environmental standards and corporate tax rates is rampant.

While the internal culture of the big law firm master-coders is restlessly innovative, the external visage of law itself is the opposite. Law presents itself not as an accumulation of clever, contingent, humanly devised advantages, but as an enshrinement of natural entitlements, whose fundamental legitimacy is beyond question. “Choosing the assets” to be encoded is “an exorbitant privilege” accorded to lawyer/coders to the benefit of those who hire them —“exorbitant” because this choice “is tantamount to controlling the levers for the distribution of wealth in society.” (P. 19.) This privilege is “the mother of all subsidies” (P. 222), which is all the more valuable for its sheer legality, giving private interests “enormous cognitive sway” over politics and polities. (P. 20.)

Marx and Engels wrote that capitalism constantly revolutionizes the means of production. Pistor shows how neoliberal capitalism has turned away from research and development of productive means, and toward asset-sheltering and debt-minting best done by the “best lawyers.” (P. 161.) Despite their “special responsibility for the quality of justice” (MRPC Preamble), lawyers “tend to ignore the external effects of their coding efforts.” (P. 166.) The wealth they help create bears less and less relation to the real economy, and skyrocketing inequality leads to popular resentment, alienation, and the widely remarked, ever-growing “democratic deficit.” Capital on steroids cannot stop itself.

The truth is that in a world in which well-coded roving capital faces a diffuse and unorganized public scattered over multiple polities, a social contract is beyond reach,even if capital wanted it for the sake of its own survival. (P. 223.)

Pistor sketches a program for reform, whose “basic task would be to roll back control by current asset holders and their lawyers over the code of capital by limiting the choices at their disposal.” (P. 224.) Leading the roll-back is “a bright-line rule to refrain from offering capital legal privileges over and above the basic modules….” (P. 225.) This will mean limiting capital’s liberty to choose fora and governing law, and refusing enforcement of “purely speculative” contracts. (P. 227.) What else? Abolish the trust? Insist on codetermination in corporate governance? Forbid trading in debt, the asset distinctive of capitalism (77, 200)? She never says what’s “basic” or where the roll-back stops. And how to deal with capital’s push-back?

Claims that [rolling-back] would deny some actors the opportunity to increase the pie to the benefit of all should be eyed with suspicion, as past experience shows that even big pies are usually devoured in solitude or only by invited guests. (P. 225.)

As for the politics, Pistor hopes that the “persistent incrementalism” (P. 229) that has worked for capital’s encoders might also work for the roll-back needed to restore democratic legitimacy. The alternatives are either a “true revolution” or “the further erosion of law’s legitimacy as a means of social ordering.” (P. 234.) In short: expect some form of noncapitalism (to arrive by increments or by revolution), or—despite its recurrent crises—a persistently incremental neo-feudalism (i.e., more of the steroidal same).

If Justice Holmes was right, that the law is nothing more pretentious than a prediction of what (our heretofore largely irrelevant) judges will do, then we, at our “current conjuncture,” haven’t any idea what the law is.

Editor’s note: For a previous review of The Code of Capital see Robert Gordon, Masters of the Code, JOTWELL (September 28, 2020).

Cite as: W.A. Edmundson, The Mother of All Subsidies, JOTWELL (October 21, 2020) (reviewing Katherina Pistor, The Code of Capital: How Law Creates Wealth and Inequality (2019)),

Dan Priel’s Naturalism

Dan Priel, The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory, Osgoode Legal Studies Research Paper (June 12, 2020), available at SSRN.

In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.

Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence.

Priel is dismissive of the type of conceptual analysis that has been central to contemporary analytical legal philosophy (and featured especially by those more inclined towards legal positivist positions, like Joseph Raz, Andrei Marmor, and Scott Shapiro). Priel correctly points out that there is something inherently problematic about offering claims about the “necessary” or “sufficient” attributes of an ongoing social practice like law. He writes: “we have a debate with two moving parts: There is disagreement on both the objects in the world that are laws, and on the account of law. And as a result, no argument can be decisive against a competing view.” (P. 8.)

It should be noted that in this part of the argument Priel occasionally overstates his case. For example, he states that “it is notable that philosophers do not think that philosophy has much to say with respect to ‘what is…’ questions on other human creations.” (P. 5.) He thus overlooks a substantial literature on topics like “what is art?” and “what is democracy?” Even the author’s reduction–why do philosophers not inquire into the nature of golf (Pp. 5, 6, 7)?–has a relatively recent counter-example in a dispute from 2001 (Casey Martin had a medical condition that required him to use a golf cart rather than carrying his own golf bag, but the administrators of the professional game would not allow it–there was a mixed legal and philosophical question, for the purposes of the American with Disabilities Act, regarding whether carrying one’s own clubs was integral to what counted as “golf”.)

Priel does not doubt that there are important philosophical questions to be asked in connection to the nature of law. However, he doubts that the questions that need to be asked are distinctive to law. For example, we should inquire about metaphysics (ontology, grounding) of law, but there is, he argues, no reason to assume that the answer in regards to law will be different than that for other social practices. Similarly, Priel contends, for all the inquiries regarding the “normativity” of law. He rejects the view, put forward by a number of legal theorists, that there is something distinctively troubling about the way mere facts of legal official actions appear to create reasons for action. As Priel points out, we are surrounded by human actions apparently creating norms (of different types): from promises to etiquette to proper language use.

Priel would redirect the focus of jurisprudence: “instead of thinking of jurisprudence as unique because it plays a preliminary role to other inquiries, jurisprudence can make a unique contribution to our understanding of law because it presents the bird’s eye view on law.” (P. 21.) The author describes his own approach as “artificial law theory,” not (primarily) as a contrast to “natural law theory,” but to reflect a focus on law as artifact–as a human creation meant to serve certain purposes. (“Artifact” appears to be the current fashionable focus for legal theory: it is central to recent natural law writings of Mark Murphy and Jonathan Crowe, and it was the focus of a 2018 collection, Luka Burazin, Kenneth Einar Himma, and Corrado Roversi (eds.), Law as an Artifact (2018).)

The second half of the article offers a novel view about the connection between law and morality: but not the well-worn path of the debates between legal positivists, natural law theorists, and others, regarding whether there are or are not necessary moral/evaluative aspects to systems or norms that count as “law.” As a threshold matter, Priel, as a naturalist, is skeptical of the objective view of morality (and the sharp distinction between conventional morality–social norms–and critical morality) that is assumed in most of those discussions. Additionally, Priel wants to question the standard view that law does or should reflect morality: that (e.g.) contract law should, to the extent possible, reflect promissory morality, and that tort law should reflect moral views about liability and compensation.

The picture Priel paints is one where law often diverges from morality, and, in doing so, helps to change and improve morality. The divergence of law and morality in part reflects the artificial nature of law–its technologies of procedure and enforcement, and the developments that follow through doctrinal legal reasoning. Additionally, legal rules and legal enforcement can overcome the well-known problems of self-serving biases and other cognitive biases. As Priel writes, “Morality is a poor guide to action, and it is the poor guidance provided by morality that law fixes.” (P. 33.)

Priel’s vision of legal philosophy ultimately is expansive, incorporating knowledge and tools from other disciplines, and seeking the sort of explanations currently associated with other approaches, like sociology of law and cultural studies:

It includes within its remit questions about the role of ideas and culture in legal development, in the relationship between human nature and law, between technological change and jurisprudential change. It includes discussing how the institutional perspective ties with the individual one (how what “the law says” on a certain issue is related to the attitudes of individuals); the ways legal cultures (legal families, legal traditions) are created, how they are sustained, and how they evolve; and the relations between different areas of law and law in general. (P. 21.)

So while Priel would take away from legal philosophers old discussions about “what is law,” he still leaves jurisprudence with a great deal of work to do.

Cite as: Brian Bix, Dan Priel’s Naturalism, JOTWELL (September 22, 2020) (reviewing Dan Priel, The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory, Osgoode Legal Studies Research Paper (June 12, 2020), available at SSRN),

Greenberg Got it Wrong: What Legal Practice Does and Does Not Reveal About Legal Content

There is a default theory of legal content that many legal positivists – and non-positivists – accept. It is that the legal contents of texts, or of authoritative pronouncements in general, are, or match, their full (that is, pragmatically-enriched) linguistic contents. Nine years ago, Mark Greenberg published an influential article called The Standard Picture and Its Discontents, attacking what he called the “Standard Picture” predominant among legal theorists. The aforementioned default theory of legal content is one of what Greenberg called the Standard Picture’s “prongs.” Among Greenberg’s objections to this theory, which is sometimes referred to as a “communicative content theory” of law, is that it cannot account for aspects of familiar legal practice.1 Dale Smith refers to this type of objection as a “practice-based objection.” (He notes that Greenberg is not the only legal theorist to raise a practice-based objection to the communicative content theory.) Practice-based objections, from Greenberg and others, depict an apparent gap between communicative content and legal content. This gap is especially troublesome for many theorists of statutory legal content. In particular, the gap poses a problem for anyone attracted to the idea that statutes are communications from the legislature and ought to be understood and applied the way ordinary communications are.

In this intriguing article, Smith is both friend to a communicative content theory and foe. He is a friend by demonstrating, again and again, how practice-based objections raised so far can be accommodated by such a theory. But he turns foe with his consideration of the practice of using what he refers to as “retrospectively operating modifier laws.” His thesis is that practice-based objections to date are not fatal to a communicative content theory of law, but that there is a practice-based objection that may be.

Smith’s central point from legal practice is that retrospectively operating modifier laws are treated in practice as altering the legal effect of earlier statutory provisions. This produces a gap, sometimes quite significant, between the linguistic meaning of an earlier statute and its legal effect. One of his chief examples is a section of the 1998 Human Rights Act, which changed, in an important way, the interpretation of earlier U. K. statutes. He argues that a statute such as the Human Rights Act cannot be treated as a direction to judges to make new law. Nor is its legal effect a simple aggregation of the linguistic meanings of the earlier statute and the relevant section of the Human Rights act. Rather, the later modifier law substitutes one legal effect (without, in the case of the Human Rights law, sufficiently specifying that substitution) for what the earlier statute’s pragmatically-enriched linguistic content might suggest.

In his argument, Smith assumes that no satisfactory account of pragmatic enrichment of language can take a later modifier law as an input. That assumption appeals to the many legal theorists committed to the view that the pragmatics of statutory language must make essential reference to the intention(s) of the enacting legislature (either actual or what it would be reasonable to suppose they were). (The relevant intentions might be alleged to be either communicative or referential.) If Smith is correct in his assumption, he has made a valuable contribution by clarifying what legal practice does and does not reveal about legal content as communication (according to the received wisdom about the nature of communication). But I must add a cautionary note. It would be premature to conclude that Smith’s is the last word on the communicative content theory. Whether it is depends, in part, on the success of the theory of legal content elucidated by Hrafn Asgeirsson in the first chapter of his The Nature and Value of Vagueness in Law (2020). The debate, in other words, goes on.

  1. Mark Greenberg, The Standard Picture and Its Discontents, in Oxford Studies in Philosophy of Law (Leslie Green and Brian Leiter, eds., 2011).
Cite as: Barbara Levenbook, Greenberg Got it Wrong: What Legal Practice Does and Does Not Reveal About Legal Content, JOTWELL (August 4, 2020) (reviewing Dale Smith, The Practice-Based Objection to the `Standard Picture’ of How Law Works, 10 Jurisprudence 502 (2019)),

Deontic Logic and the Philosophy of Law

Robert Mullins, Legal Positivism and Deontic Detachment, 31 Ratio Juris 4 (2018).

It is curious that Anglophone philosophers of law (many of whom have had some training in logic in conjunction with the classwork required for a Ph.D.) ignore deontic logic — the branch of logic that deals with propositions that employ normative concepts like obligation and permission. The point is not that deontic logic can answer problems in the philosophy of law, but that it can help reveal them. This very short paper by Robert Mullins is a wonderful example. It concerns the apparent incompatibility between a commonly accepted inference rule in deontic logic, deontic detachment, and the core principle of positivism, the social thesis.

According to deontic detachment, the following reasoning is valid (if the premises are true, the conclusion must be true):

1) It ought to be that if P then Q.
2) It ought to be that P.


3) It ought to be that Q.

Mullins’s legal example is a law obligating all those who file income taxes to do so by the close of business Friday and another law obligating one to file income taxes. It follows from deontic detachment that one is obligated to file income taxes by the close of business Friday.

Now for the social thesis. Mullins’s formulation is controversial:

Legally it ought to be that φ if and only if the proposition that it ought to be that φ is accepted by legal officials.

Given this understanding of the thesis, there is indeed a conflict with deontic detachment. Although the premises in Mullins’s legal example are accepted by legal officials, the conclusion (that one ought to file income taxes by the close of business Friday) need not be. But that doesn’t matter to its status as a legal fact.

Now someone might question whether legal officials might not accept the conclusion. True, there is no law under which one ought to file income taxes by the close of business Friday. But officials, putting two and two together, would surely have accepted that fact. But as the number of laws (and other law-making acts) increases, one will reach a point at which there are many legal consequences that have not been entertained by any official, much less the bulk of officials. That does not appear to make a difference to their status as legal facts.

What is more, Mullins argues that other rules besides deontic detachment can generate legal facts that outstrip official acceptance. Assume that there is a law under which one ought not camp on public property. Employing closure under logical consequence, it is also the case that Fred ought not camp on public property, and that he ought not do so on Wednesday, and that he not do so on Wednesday while wearing a brown suit. But none of these legal facts has been entertained by legal officials.

Mullins emphasizes those unacknowledged legal facts that follow from laws. But at times laws themselves can be unrecognized. It is possible for a law to have been enacted without the lawmaker, or other officials, being aware of that fact. Accidental lawmaking can occur.

Mullins’s initial account of the social thesis is too strong, however. The usual way that the thesis is put is that the existence and content of the law (or, alternatively, all legal facts) ultimately depend solely upon social facts. The core social facts upon which legal facts ultimately depend do indeed concern acceptance by a community’s officials, but positivists do not insist on a one-to-one correspondence between the legal fact that φ and officials’ accepting that φ. What is required is official acceptance of fundamental rules of the legal system. The legal fact that the United States Constitution is binding ultimately depends upon American officials’ accepting that it is. But countless other legal facts concerning the American legal system can obtain without American officials’ recognizing them at all.

In the end, this is precisely the point that Mullins seeks to make. The social thesis must construe official acceptance narrowly, in a way that allows legal facts to outstrip official attitudes. And this is, I believe, an exceptionally important point — the implications of which have not always been taken to heart by positivist philosophers of law. If the legal fact that φ can obtain even though officials do not accept that φ, there must be some facts other than social facts about official acceptance by virtue of which it is a legal fact that φ. What are those other facts?

I think positivist philosophers of law should concede that the requisite facts concern abstract objects: facts about the fundamental rules of the legal system and facts about the rules that are identified as laws by those fundamental rules. Although this point has not been widely recognized by positivists, I think some would be quite willing to concede this role played by abstract-object facts in determining legal facts. See Shapiro, Legality 102-04 (2011).

An analogy with a language is appropriate here. Some philosophers of language understand languages as abstract objects — in particular, functions from strings of scribbles or phonemes to propositions (which are themselves abstract objects). Under the abstract object that is French, “Il pleut” takes one to the proposition it-is-raining. Such facts about French are not social. They can’t be, for there is an infinite number of such facts about French, more than any person could ever entertain. Nevertheless, what makes it such that the French speak French — what connects them to that abstract object (rather than, say, to Esperanto) — is social facts about the French people.
Positivists should take the same approach. The abstract object that is the American legal system is not social. It can’t be, for (as Mullins shows) there are more facts about this system than can ever be entertained by American officials. But what makes it such that Americans have the American legal system — what connects them to that abstract object — is social facts about American legal practices, in particular, facts about official acceptance.

This is a relatively limited challenge to positivist theories of law. A prominent theme in Ronald Dworkin’s writings is the existence of theoretical disagreements, in which officials disagree about even the fundamental rules of the legal system, while nevertheless thinking that their disagreement has a preexisting legal answer. Dworkin, in effect, argues that social facts about official acceptance cannot determine what legal system should be assigned to a community. That can be done only if we include moral facts as well. This challenge to positivism takes us well beyond the one presented in Mullins’s paper.

Cite as: Michael Green, Deontic Logic and the Philosophy of Law, JOTWELL (July 7, 2020) (reviewing Robert Mullins, Legal Positivism and Deontic Detachment, 31 Ratio Juris 4 (2018)),

Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order

Thomas Poole, The Strange Death of Prerogative in England, 43 Univ WAL Rev 42 (2018).

As a private law theorist, I have been captivated recently by the work of public lawyer Thomas Poole on the concept of prerogative. Poole developed his account most fully in his analytically brilliant and deeply learned book, Reason of State: Law, Prerogative and Empire (Cambridge 2015). Poole has continued to refine his thinking about the concept of prerogative in more recent work, including The Strange Death of Prerogative in England, in response to a spate of recent cases in England. What is so compelling and illuminating about Poole’s work on prerogative for a private law theorist? Private law theorists have long assumed that the most philosophically interesting questions in the field concern the structure of interpersonal rights and duties—what we owe each other. As a group, we have tended to stick to those areas of doctrine, like tort and contract, that repay close attention to such structural questions. Other areas of private law doctrine, especially property and equity, have not been not well-integrated into accounts of private law focused on interpersonal relations. That may be because they raise questions and invoke concepts outside the core of private law theory today. Equity, in particular, challenges the sufficiency of understanding private law as a framework of predictable, durable and standardized rights and duties. I may have a property right in law only to find that equity directs me to exercise it in ways the law does not require of me—or be held in contempt. I may have a contractual right to your performance of a contract but equity may prevent my enforcing it when I have led you to act to your detriment on the belief that you need not perform. Equity appears, then, to be a cluster of doctrines that lie on the outer edges of private law.

One way to chart the path forward to a more complete and unified understanding of private law –one that includes equity—is to look at how, in the context of public law, Thomas Poole has worked out the idea of the prerogative in institutional, conceptual and normative terms. The concept of prerogative, Poole argues, is best understood not as the bundle of prerogative powers that public lawyers of old enumerated nor the purely political conception of emergency powers outside the grip of law, but rather as a constitutional idea of prerogative: a distinct claim of imperative authority associated with guardianship of the State and that functions to stabilize and maintain the integrity of the legal order itself.

The ramparts of Poole’s concept of prerogative are the classic accounts of Dicey, Locke and Blackstone, which, properly fortified, are defenses against the doctrinarism, sentimentalism and political cynicism that have weakened understanding of its nature, core elements and proper locus in the constitutional order. Poole takes himself to be sifting through these classic accounts, taking apart and reassembling the pieces in a way that better reveals the idea of prerogative as a complex whole. What Poole delivers is an idealized explanation of prerogative as a special and distinctive claim of authority that finds doctrinal expression in a number of familiar prerogative powers, including the power of mercy, war, empire and trade. In all of these powers, the elements of prerogative are present. The features of prerogative power, Poole argues, are that (i) it is residual in nature, belonging to the executive in its capacity as guardian of the state; (ii) it is authority of an imperative or directive kind (not expressing itself then in the form of laws of general application); (iii) it is directed primarily at officials (not subjects); (iv) it has distinctive analytical properties, including, most mysteriously, its affective aspect (“As a residual symbol of majesty and lordship, prerogative taps into a sentiment now barely glimpsed and almost shameful to modern constitutional sensibilities” (p. 54)); (v) the concept is a unified whole, weakened where any of its elements are diminished; and (vi) it has a place within the constitutional framework even as it occupies an almost external space, law looking in on itself.

Poole’s own thinking about the prerogative in the public law context is rather deflationary. He believes that crucial elements of the concept—especially its affective dimension and the deference that once provoked from courts— either have already been or are on the way to being eliminated from British constitutional thinking today. In the British courts’ increasing refusal to defer to the executive in the exercise of core prerogative powers (as in the Brexit case), Poole sees signs of the death of the prerogative.

Here, then, is where private lawyers can both profit from Poole’s conceptual and normative analysis of the idea of the prerogative and perhaps turn around and export some insights from private law on the role that the prerogative might continue to play within the modern constitutional order, despite the transformation underway. The power to do equity was itself originally bundled together with other incidents of royal prerogative, the power to pardon, grant dispensations, charters, dignities, all powers in some sense to make exceptions. Even as equity has migrated from the executive to the judicial branch, even as much of its operations have been juridified over time, equity continues to occupy a similar legal terrain in relation to private law as the prerogative does in relation to law generally. The power to do equity is the power to preserve and safeguard the integrity of a system of rights. Courts, not the executive branch, are now the agents of equity and custodians of the private law order (not merely refusing to defer to officials within the executive branch but wholly taking over guardianship authority in their stead). But core elements of equity that are so like core elements of prerogative power —its affective dimension, found in its appeal to conscience and honor, its function to safeguard the framework of rights, its imperative nature, directing those with discretion and power within the system of rights to exercise it in ways that conduce to the stability of that system—all remain. Courts in doing equity thus claim a kind of authority that we can and should distinguish from the core judicial authority courts wield when they are simply enforcing private rights. Even as equity has undergone profound institutional change, equity as a concept remains, a standpoint on the private law order required to ensure its integrity. This points, perhaps, to a future for the development of prerogative in public law, whatever branch of government is the repository of that authority.

Cite as: Larissa Katz, Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order, JOTWELL (June 10, 2020) (reviewing Thomas Poole, The Strange Death of Prerogative in England, 43 Univ WAL Rev 42 (2018)),

Imaginary Laws

The subject of legal reasoning has stimulated an enormously wide variety of books and essays, articles and comments, offering the reader systematic exposition, technical illumination, practical guidance and critical commentary. The reader is clearly unsatisfied. The production of material continues without any sense that the latest contribution is about to close the debate and complete our understanding. Maks Del Mar’s recent book is not likely to provide the last word on legal reasoning. It does provide a novel perspective on where the elusiveness of legal reasoning might lie. It seems that we cannot capture the subject because however learned we might become in the techniques of reasoning with the law that we have, there is always the problem that imaginary laws might be invoked to disturb the precedents and doctrines, the templates and patterns, into which we fit existing legal materials.

That is a gross oversimplification and mischaracterization of Del Mar’s book, in at least three respects. First, for Del Mar, an imaginary realm of law does not exist outside of existing legal materials but rather legal materials possess an imaginative capacity. Secondly, legal reasoning does not get subverted by stretches of the imagination; instead, the imagination is a core faculty employed in legal reasoning. And thirdly, despite the limitation suggested by its subtitle, this is not simply a book about imagination, nor simply a book about legal reasoning.

To take the last point first, we can glean from the Introduction alone that this is a book which offers articulated views on the nature of theorizing: regarding “key theoretical questions” as the product of the biography and attitude of the theorist (Pp. 2, 13, 20-21, 23-25); and elevating the contingency of models over the necessity of concepts (P. 23). On the nature of language: seeing language as providing neither an obstacle nor a guide, but “a communicative and cognitive resource.” (Pp. 5, 22-23.) On the nature of inquiry: seeking a richer notion beyond the dichotomy between discovery and justification. (Pp. 8-9.) These early signals are enough to reposition Del Mar’s book away from any escape into the imaginary, as a serious exploration of the realities of law’s social potential and of the practical and theoretical perspectives adopted towards that potential.

To return to the first two points, the book also does what it proclaims in its title. It offers a thorough investigation of the role of imagination in legal reasoning through the deployment of four “artefacts” that assist in the process of inquiry regarded as the heart of legal reasoning, or adjudication. The substantive investigation undertaken in the book is split into two parts. Part I provides theoretical treatments (“models”) of inquiry, artefact and imagination, and then relates these ideas together by elucidating the author’s idea of the dynamic and socially involved process of inquiry that informs legal reasoning. Part II illustrates this process with studies of four artefacts commonly found in legal reasoning: fictions, metaphors, figures (personifications), and scenarios (hypotheticals). A brief conclusion reflects on further directions the project might have taken but which are not followed in the book. The slightly apologetic tone of the conclusion seems out of place considering how much is packed into the book.

The book displays an extraordinary breadth of learning, fully living up to its interdisciplinary aspirations. But this is not just interdisciplinarity for its own sake. Del Mar works with an astoundingly rich array of intellectual resources to advance his own carefully thought-through positions. And he does work with them, not simply citing them as scholarly adornments. So, for example, he refers to Anthony Laden’s social aspect of reasoning but extends it beyond Laden’s own approach so as to press the “interactive level” of legal reasoning and provide a third way out of the deadlock between Stanley Fish and Ronald Dworkin. (Pp. 39-42.) At other times, he chooses a passage between opposing views in the literature so as to steer towards the destination he has in mind. So, moving closer to Peter Goodrich’s view of rhetoric, in opposition to Chaim Perelman’s, Del Mar reaches an understanding of rhetoric capable of inverting the traditional respect for Plato’s reason over the sophistry of Gorgias. (Pp. 85-88.)

When it comes to his pivotal chapter on Imagination, Del Mar masterfully draws the literature together in an apparently effortless but incisive way, stressing particular points and emphases (for example, justifying the inclusion of supposition, Pp. 154-57), so as to produce a resource that provoked by and responding to artefacts can “enable the activities of inquiry in adjudication.” (P. 196.) The process of inquiry fed by the imagination is regarded by Del Mar as operating on an individual or social level (P. 202), but, in either case, the inquiry may become defective: if it is not open to imaginatively taking into account the perspective of another, if it fails to exhibit responsiveness to others, if it does not stress the importance of community, and if it does not embrace all members of a community in the invitation to imagine. (Pp. 216, 222, 226, 231.)

This represents Del Mar’s vision. I shall say less here about the practice, as illustrated in the four case studies forming Part II. It should, however, be noted that each chapter devoted to fictions, metaphors, figures and scenarios provides a valuable study of its subject matter as well as a stimulating account of how that device is regarded by the author as enabling inquiry. It is the enablement of inquiry that is the unifying theme of this book. The theme holds together Del Mar’s advertised undertaking of an investigation of the role of imagination in legal reasoning, but it also supports his understated but equally significant development of an aspirational theory of law – which places legal reasoning, adjudication, and the character of law itself, at the service of a wholly inclusive human society.

It is evident that such a society has not been produced by law, and this leaves Del Mar’s project with something of a futuristic air to it. He repeatedly stresses the open-endedness of the exercise of imagination through the artefacts it employs, which in turn leaves inquiry (“never-ending and incomplete”, P. 76) open to continue to deal with those interests and vulnerabilities in society as yet unreached by the law. It is telling that he couches law’s normativity in terms of interests and vulnerabilities that need to be addressed in preference to rights that have been recognized. (Pp. 66-67, 72-73.) Does this, after all, mean that Del Mar’s project has been primarily concerned with imaginary laws?

The answer to that question depends on how one regards the present (or past) state of law and envisages its potential state. As for relying on imagination to ensure that law’s potential adequately addresses the interests and vulnerabilities of all its subjects, again, that is likely to depend upon the idealism or scepticism of the reader. Imagination is a faculty capable of sympathetically including the concerns of others, or forcefully suppressing them. Del Mar’s book provokes us to reconsider how that faculty has been employed by the law. And how it might be.

Andrew Halpin, Imaginary Laws, JOTWELL (May 14, 2020) (reviewing Maksymillian Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication, (2020)),

Should Courts Strike Down Improperly-Enacted Law?

Stephen Gardbaum, Due Process of Lawmaking Revisited, 21 U. Pa. J. Const. L. 1 (2018).

Although we have made substantial progress since the late nineteenth century in supervising the process by which sausages are made, we have failed to make any significant progress in supervising the procedures used by legislatures. Stephen Gardbaum recommends that we remedy this situation. He argues that courts should use the Due Process Clause to review the procedures by which laws are enacted, as well as reviewing the substance of the enactments. His title indicates that he is building on the path-breaking article by Hans Linde, Due Process of Lawmaking, published more than forty years ago. Professor Gardbaum breathes new life into the idea and invites us to think about a promising and innovative means of improving our much-troubled system of government.

Procedural due process, Professor Gardbaum argues, demands that all branches of government–legislative, executive and judicial–follow constitutional decision-making procedures in addition to reaching constitutionally acceptable results. The applicability of this principle to executive and judicial decisions is unchallenged, but the prevailing view is that it does not apply to legislation. Perhaps this is because legislation is promulgated by popularly-elected officials and thus regarded, contrary to Burke, as an act of will rather than an act of reason. Professor Gardbaum doesn’t challenge this view; his point is that actions carrying out the will of the legislators can also suffer from procedural defects that demand attention and correction. He offers two examples: if legislators decide between alternative proposals by flipping a coin, and if they enact legislation in return for campaign contributions. These examples reflect two general categories of procedural defects: legislating without sufficient reasons and legislating for the wrong reasons. Professor Gardbaum refers to the first category at several points. It includes a failure to state the rationale for a statute, the failure to provide any empirical basis for it, or the failure to subject it to open consideration and debate. But the primary focus of his article is on the second category–legislating on the basis of the wrong reasons, and specifically ones that are wrong because they are corrupt.

Professor Gardbaum’s primary example is the Trump Administration’s tax reform act (Tax Cuts and Jobs Act 2017). Its obeisance to the demands of the Republican Party’s wealthy contributors, which is obvious on its face and confirmed by naively self-revealing statements by its sponsors, demonstrate its essentially corrupt character. The Hobbs Act declares that legislators who take action in return for money–a quid pro quo, according to the now-notorious terminology–are guilty of a criminal offense. It is also an offense, Professor Gardbaum argues, for a majority of legislators to enact a law that represents a similar pay off to wealthy contributors. He notes that the Supreme Court has largely eviscerated the application of the Hobbs Act to legislators, most notably McCormick v. United States 1, which precludes conviction unless the legislator’s action is based on an explicit promise, and United States v. Johnson 2, which precludes conviction on the basis of a legislator’s votes on proposed legislation. But the application of the Due Process Clause to legislative procedures does not depend on any demonstration of individual wrongdoing. Its focus, rather, is on the legislation itself. In this context, the corrupt behavior of individual legislators may provide evidence of the legislature’s general violation of due process, but it is not the essence of the violation.

In addition to reviving the general idea that the concept of due process should apply to lawmaking, Professor Gardbaum argues for a means of implementing the concept, which is through judicial review. Hans Linde shied away from this solution, and it has since been ignored or rejected by most legal scholars with the exception of several thoughtful articles by Itai Bar-Simon-Tov. Professor Gardbaum argues that an action declaring that legislation like the Trump tax reform is void under the Due Process Clause would be both less problematic and more effective than prosecutions under the Hobbs Act. It would be less problematic because no specific person would be punished, so that the concern for fairness to individuals that may have motivated the Supreme Court decisions in McCormick and Johnson does not apply. It would be more effective because the conviction of an offending legislator leaves the offending law in place. More generally, criminal prosecution is only viable for dealing with outliers from a general pattern of social or governmental behavior. Procedural due process review can correct a general pattern, as it has for many executive or judicial practices.

This admirably short article does not attempt to refute all the objections likely to spring to the mind of legally-trained readers. But Professor Gardbaum delineates both an empirical and a theoretical answer to some of the most obvious concerns. He points out that courts in several other democratic regimes, including Colombia, Israel and South Africa, have struck down legislation on procedural grounds, thus demonstrating that the idea is not presumptively impractical. With respect to theory, he argues that judicial review of legislative procedures does not violate the separation of powers doctrine. Given the countervailing, and arguably more important principle of checks and balances, separation of powers is best understood as preventing one branch from taking over the assigned responsibilities of another or disabling another from fulfilling those responsibilities. Judicial review of legislative procedures would not create this problem; far from legislating, the courts would only be doing what they do on the basis of many other doctrines, which is to strike down legislation that violates the doctrine’s underlying principles. Consistent with checks and balances, due process review of legislative procedures would provide much-needed supervision over truly offensive practices that, according to the classic Footnote Four argument, the subject institution is disabled from remedying on its own. Professor Gardbaum, again in the interest of brevity, does not delineate the contours of a due process doctrine to provide this supervision. Instead, he invites us to think about it, and alerts us to the all-too-apparent defects in our governmental system that should motivate us to do so.

  1. McCormick v. United States, 500 U.S. 257 (1991)
  2. United States v. Johnson, 383 U.S. 169 (1966)
Cite as: Edward Rubin, Should Courts Strike Down Improperly-Enacted Law?, JOTWELL (April 17, 2020) (reviewing Stephen Gardbaum, Due Process of Lawmaking Revisited, 21 U. Pa. J. Const. L. 1 (2018)),