May 10, 2023 Andrew Halpin
In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.
The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.
The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25).
Barzun’s analysis is, however, more subtle in two respects. First, he reveals that the philosophical approach adopted by each of the two Harts attempts not to resolve but to overcome the dilemma. Herbert’s ordinary language philosophy “dissolves” the Essential Dilemma by a careful explication of linguistic usage (Pp. 22-23). Henry’s pragmatism, on the other hand, embraces both horns of the dilemma by insisting that (objective) theoretical reasoning is “driven by [subjective] practical concerns”, which require an individual “decision about what to believe or what to do” (P. 23). So, it appears, “the dilemma just reflects a linguistic confusion, so neither horn need be (or ought to be) chosen.” Alternatively, “the dilemma is inescapable and yet irresolvable, so that, in some sense, both must be chosen.” (Pp. 23-24.)
Yet, secondly, he points out that neither attempt to dispose of the dilemma is credible, and this leads to its simply resurfacing as a conflict between “a theoretical problem about what to believe there is in the world or…a practical problem about what to do”. (P. 25.) Irrespective of how the dilemma is portrayed, the diagnosis that the dilemma has not gone away is convincing, as is Barzun’s insistence on the conflicting approaches adopted towards it by the two Harts. This brings us to another major theme developed in the article, the impact of a prevailing intellectual culture.
Barzun suggests that Herbert’s emphasis on an internal legal point of view became dominant and affected the reception of Henry’s understanding of law (Pp. 16-17), so as to lose sight of Henry’s ambition to provide “an ‘Olympian’ – one might even say a philosophical – perspective on law” (P. 18); and his insistence on treating law as a prudential science. (Pp. 26, 31.) This provokes Barzun to turn the tables and imagine how Herbert’s approach might have been received if it had been subjected to a prevailing view based on Henry’s priorities. (Pp. 20, 26.)
Having adopted Henry’s insistence on examining law’s capacity to provide practical guidance, the result of Barzun’s thought experiment is to conclude that Herbert’s work is shown to be “a work of profound ambivalence as to the power of law to compel obedience.” (P. 26.) In particular, Herbert is incapable of producing a sound account of legal obligation in normative terms. (Pp. 27-28.) And this is reinforced by Herbert’s own private doubts expressed in his notebooks. (P. 28.) However, Henry, judged by his own lights, fares little better, failing in his efforts “to accommodate both scientific and moral knowledge.” (P. 28.) Nevertheless, in Barzun’s judgement, Henry comes off the better for openly dealing with the problem, even to the point of making it integral to his pragmatist philosophy. (Pp. 28-29.)
At this point in the article, Barzun turns to Schlegel, and, in a nice vindication of his dominant intellectual culture thesis, Barzun illustrates how Schlegel’s viewpoint could be made compatible with Henry’s, despite the former’s recorded distaste for it. (Pp. 31-34, 41-42.) Barzun’s loose description for the culture he would prefer to dominate is humanist-pragmatist. (P. 42.) It is explained more through applications to the Essential Dilemma, enhanced by resources drawn from Schlegel. This expands the scope of the article to cover the nature of disciplines, and particularly the discipline of law (Pp. 29-33, 39); a reflection on what a good legal education might look like (Pp. 32-36); asides on the limitations of CLS scholarship (Pp. 35-36, 38-39); and a confrontation of the role of historians in legal history (Pp. 36-38). This opens up a broader profile of the academic as producing perspectives that are “partial and potentially distorted” while prone to mundane objectives in making a living (P. 38); yet capable of enjoying a kind of integrity within the “craft” of a discipline (P. 39), subject to admitting that academic pursuits “are all simultaneously decisions about what to do and what to believe.” (P. 40.)
From the pragmatist perspective he espouses, Barzun considers “the Essential Dilemma is just part of the human condition” but, as such, an opportunity for “productive and creative thought.” (P. 35.) However, confronting it in this way, according to Schlegel, can be disturbing for those who do, due to the dissonance between “deep moral convictions” and “equally deep doubts as to how they could ever rationally justify those convictions.” (Pp. 35-36.) Furthermore, any creative critique, given the implicit limitations on knowledge, is at best tentative: “the ground from which one launches the attack is always vulnerable to crumbling underneath.” (P. 38.)
So where is the fun in that? Clearly from the response of John Henry Schlegel at the same event, it lies in having the freedom to think in ways that might otherwise be prohibited by authorities with an interest in keeping established ways of thought unchallenged. Still, that might raise a secondary dilemma for those who have thus overcome the Great Dilemma. How can we be sure that our practice of this freedom of thought is creative and fruitful for others, rather than an exercise in mere self-indulgence? After benefitting from Barzun’s extensive discussion of the first dilemma in this article, it would be unfair to expect anything more on the second – but to regard that as a subject for further work might not be considered incompatible with the approach taken in the present article.
Cite as: Andrew Halpin,
Hart Surgery, JOTWELL
(May 10, 2023) (reviewing Charles L. Barzun,
The Tale of Two Harts; A Schlegelian Dialectic, 69
Buff. L. Rev. 9 (2021)),
https://juris.jotwell.com/hart-surgery/.
Apr 5, 2023 Emad Atiq
In criminal cases, the prosecution bears the burden of proving the defendant’s guilt “beyond a reasonable doubt” (“BRD”). But it is not entirely clear what this standard requires. Courts routinely strike down attempts by prosecutors and judges to define (say, in terms of degrees of confidence or the probability of guilt) what counts as reasonable doubt. Moreover, pure statistical evidence is often deemed insufficient for proof beyond a reasonable doubt, even when such evidence suggests an extremely high probability that the defendant is guilty. The BRD standard’s resistance to definition or quantification invites explanation.
Sarah Moss offers an intriguing account: proof beyond a reasonable doubt requires knowledge, and knowledge is similarly resistant to definition and comes apart from probable truth. Moss’s analysis touches on several aspects of legal proof in both criminal and civil trials, but I’ll focus my comments on two suggestions that struck me as especially promising.
Drawing on observations by David Lewis, Moss argues that whether an agent knows P depends on whether the agent is able to rule out a set of “relevant” possibilities inconsistent with the truth of P. The “relevance” of a possibility is determined by, among other things, its salience in a given context. Hence, if belief beyond a reasonable doubt in the defendant’s guilt requires knowledge of the defendant’s guilt, the factfinder must rule out all and only those possibilities of innocence that are contextually relevant/salient. But this suggests that attempts to define “unreasonable doubt” by appealing to irrelevant possibilities (e.g., conspiracy theories involving the government) are counterproductive precisely because (a) such attempts make salient scenarios that the jury wouldn’t otherwise consider in the absence of the instruction, and (b) by making such scenarios salient, the instruction threatens to artificially raise the standard for knowing the defendant is guilty. As Moss puts it:
The problem is that the more we say in an effort to spell out the difference between reasonable and unreasonable doubts, the more we call attention to the possibilities that jurors shouldn’t be considering. As Lewis might have put it, the more we risk “destroying” the knowledge that would have sustained a conviction. (P. 7.)
Notably, the history of the BRD standard seems to support Moss’s explanation of its indefinability.
Are the relevant possibilities in a criminal trial—those that have a kind of “natural” salience for the factfinder—an arbitrary set? Not at all. Moss suggests that salience and relevance are partly determined by the stakes in a given context—that is, the practical consequences of believing a falsehood or failing to believe the truth. In fact, this feature of knowledge—its sensitivity to the stakes—plays a central role in Moss’s account of the law’s treatment of statistical evidence.
Moss begins by pointing out that the law doesn’t always deem pure statistical evidence insufficient for establishing guilt or liability (a fact sometimes obscured by the literature on statistical evidence). A paradigmatic example of insufficiency involves 25 attendees of a sports event who are charged with gatecrashing based on the evidence of only one ticket being sold. For any given individual, the odds that she gatecrashed are very high (0.96) but convicting her solely on that basis seems inappropriate despite the high odds, given the salient possibility that she is the one innocent person who bought a ticket. Moss contrasts the scenario with cases where corporate defendants are held civilly liable for causing harm to plaintiffs who purchase defective goods based solely on market share evidence (evidence that the defendant serves 90% of the demand for the goods).
Moss suggests that this difference is explained by the fact that the stakes determine whether statistical evidence secures knowledge, and the stakes differ in the two scenarios. In the gatecrashers case, the possibility that any given defendant may have bought a ticket looms large, and so knowing that the defendant is guilty requires ruling out the possibility that she bought a ticket (which one cannot do based on statistical evidence alone). The possibility is salient precisely because the case highlights the fact that convicting all 25 individuals is guaranteed to result in a wrongful conviction and because convicting innocent persons is a very bad outcome. By contrast, the possibility that the corporate defendant might not have sold the precise good that caused the plaintiff’s injury does not loom as large, since imposing civil liability on innocent corporations does not seem as morally bad. Moreover, the structure of the market share cases does not guarantee an instance of wrongful liability.
There is much more to Moss’s fascinating discussion than I’ve captured in the above summary, and I encourage others to read Knowledge and Legal Proof in its entirety. But I’ll make three observations based on the points I’ve highlighted.
First, a central challenge for the view that legal proof requires knowledge (one that Moss considers) is the implication that, since knowledge is factive (one cannot know P if P is false), innocent defendants who are convicted of a crime could not possibly have been proven guilty beyond a reasonable doubt. That is, a jury cannot know—and, if Moss is right, believe beyond a reasonable doubt—that a defendant is guilty who happens to be innocent, no matter the strength of the evidence against him. This is so even if the jury might be justified in believing that the defendant is guilty. Moss largely concedes the implication and argues that it is not so theoretically costly, though I suspect intuitions will vary.
Second, some of Moss’s insights about the way that practical stakes influence a standard of proof seem separable from the question of whether legal proof requires knowledge. Suppose BRD invites the factfinder to have not knowledge, per se, but rather a level of confidence in the defendant’s guilt that is morally sufficient given the practical stakes (e.g., convicting the defendant of a specified crime, issuing a sentence of life without parole, and so on). Then, what BRD requires of the factfinder ends up being highly sensitive to context. And this context sensitivity makes offering a general, context-invariant definition of the standard difficult as well as misleading. Moreover, a view along these lines appears to have the same upshot for the gatecrashers case as Moss’s account. The moral stakes—in particular, the risk of a wrongful conviction—rule out convicting the 25 defendants based on pure statistical evidence. Likewise, the view may permit the imposition of liability on corporate defendants based on pure market share data (because the moral stakes aren’t as high). I wonder whether there are reasons for preferring an account of legal proof in terms of knowledge over one that relies on something like “morally sufficient confidence” (the latter avoids the dicey implication I mentioned above).
Third, Moss’s arguments draw attention to features of our ordinary epistemic practices that lawmakers ought to consider but generally don’t. There is a growing body of literature pointing out that a failure to account for the stakes-sensitivity of the standards that govern belief-formation results in biased criminal procedures. If what counts as belief beyond a reasonable doubt depends partly on the practical stakes, then there are arguments to be made in favor of (for instance): (a) reconsidering the practice of shielding jurors from information about the consequences of conviction; (b) greater flexibility in the forms of evidence we consider relevant to prosecuting different kinds of crime; and (c) granting criminal defendants the constitutional right to argue that the jury should reconsider at sentencing any “residual” doubts it may have had during the conviction phase, since doubt that’s unreasonable in the context of a conviction may be quite reasonable in the context of sentencing (a right that the Supreme Court has consistently failed to recognize).
Mar 1, 2023 Sean Coyle
Eleanor Curran’s excellent book, Rethinking Rights, surveys the philosophy of legal rights, its history and current importance. The book’s purpose is “to examine the history of rights theory and the effects of that history and how it has been written, on how philosophers think about rights today….” (P. xiii.) Thus the book concerns, not a theory of rights, but a theory of rights theory. The book examines a number of modern theories of rights, in particular the analysis of rights due to WN Hohfeld. This analysis is employed as a means of investigating historical conceptions of rights, especially that of Hobbes; the author claims that the analysis at best only partially captures Hobbes’s sense of “‘right”. Whilst a proof of this would be an interesting philosophical result, the author does not explore until much later modern theories (of Nigel Simmonds and, perhaps, HLA Hart) which limit the Hohfeldian analysis to certain types of private law rights: Hohfeld’s analysis was never intended to capture all types of right, especially not those manifestations of rights-analysis that are premodern or early modern. Similarly, the author examines the two dominant theories of rights at the present day, the will theory and the interest theory, claiming that neither properly encompasses all kind of right. Though interest theorists and (to an extent) will theorists would resist such a claim, it could be argued that both theories represent particular regimentations of ordinary discourse about rights; rather than such theories failing to capture certain types of rights discourse (as the author suggests), there is an alternative explanation: that rights discourse itself is incoherent. Some discussion of such a possibility would have been welcome.
The main lines of argument in the first section of the book owe a debt to Brian Tierney, which is acknowledged in the Preface. And indeed the book’s second sentence repeats a history of rights propagated by Tierney, namely that the period from the late-medieval to early modernity is characterized by a shift from so-called “objective” right to the now more familiar “subjective” right. (Pp. xi, 4.) Much has been written which casts doubt upon this alleged shift, a version of subjective right appearing, for example, in Aquinas’s Summa Theologiae (II-II.57.1c) in the thirteenth century. (I do not personally subscribe to belief in the early modern origins of subjective rights; everything Grotius says of substance about rights is anticipated by Aquinas (Id. at IIII.57.1 ad 1)). The author understands the early modern writers, Hume in particular, to have “devastated” the philosophical justification of earlier doctrines of natural rights, a judgment not shared by a sizeable number of modern philosophers who expose the misunderstandings in Hume’s own premises (see Finnis, Natural Law & Natural Rights at 33-42). But a greater concern is the author’s tendency to regard Ockham, Aquinas, Grotius and Locke as belonging to a single and undifferentiated tradition, and thus for example to treat Locke as offering a “classical” theory of rights. (P. 6.) Such a classical theory is based on natural law, “which exists outside those it commands, and sets out what is morally right (and wrong)….” (P. 9.) This does not correspond to the natural law accounts of the major theorists, including Grotius and Locke, for whom natural law is not “outside” the person but is a “participation of natural law in the rational creature” (Aquinas, Summa Theologica at I-II.93.2c), and is not primarily concerned with right and wrong but with the good and the bad (Id. at III.94.2c).
Grotius is presented as a secular natural law theorist, in common with other commentators, though with more caution than most. (Pp. 13-14.) This is on the strength of his famous etiamsi daremus passage, translated here as that “if God did not exist, natural law would still be true.” (P. 14.) This is not in fact what Grotius says. He says that “even if we assume (what cannot be assumed without the uttermost wickedness) that God does not exist or that human affairs are of no concern to Him, what we have been saying [viz about natural rights] would retain somewhat the same status [locum aliquem]…” (“somewhat” not “completely”). The author alleges that Grotius is the first writer to base natural law on philosophical rather than theological premises. A brief glance at Aquinas’s treatment of natural law in the Summa Theologiae and elsewhere suffices to falsify this idea. Grotius is in any event not the secular figure of common mythology: a myth perhaps perpetuated by the fact that his constant and painstaking references to Biblical and sacred texts have been stripped out of most modern editions of his work.
The main purpose of the book is to differentiate individual rights from generic group rights or those based on function. The book traces the history of subjective/individual rights through the early modern period to the present, charting Hume’s and Bentham’s criticisms of natural rights and underlying doctrines, as well as Finnis’s debunking of those criticisms. The author asks: will this make any difference to the history of natural rights theory? And answers, rather curiously, no, on the ground that natural law theories are unlikely to be accepted by mainstream audiences in the conditions of modern western societies. (P. 35.) The avowed intention to offer a history of a history of natural rights theories cannot wholly absolve the author from an account of the truth of such arguments: the fact that philosophical tribalism means that most philosophers believe X is much less important than whether X is true, after all.
The core of the book is an argument against the use of Locke’s natural rights theory as the paradigm for a modern individual rights theory (one the author sees as entrenched in modern minds) (P. 39) in favour of Hobbes’s theory (43ff). The author provides some interesting discussion of Hobbes on natural right, though she argues that the foundation of such rights, for Hobbes, is liberty (P. 53); actually the ultimate foundation of rights in Hobbes could be found in fear, or at least the circumstances which bring about fear in the quasihypothetical natural condition. There follows a lively discussion of the extent to which Hobbes’s views on rights marry up with modern notions of rights, which proceeds (P. 65 n.1) to a discussion of how philosophy underwent a “jurisprudential turn” with regard to rights, centring particularly on the work of Hohfeld, which is detailed (P. 67 n.1) and criticised as not a universal analysis of rights. (P. 79 n.1.) There are in total three chapters on Hohfeld, which provide some interesting analysis of both its historical and present-day importance. Any discussion of Hohfeld that offers some new perspectives on his work is both unusual and welcome, especially if it challenges current orthodoxy. Among the limitations the author finds in Hohfeld’s analysis are two that, oddly, modern theorists would take to be strengths: its separation of right from liberty, and its excision of any notion of value from the concept of right. (Pp. 99, 115-16; 125-28.)
The book’s second part turns away from historical concerns and offers an assessment of the jurisprudence of rights. It concludes with a pair of chapters on the philosophy of rights. The first (chapter 7) offers a good summary of the major positions within rights theory (will and interest theories etc) and is thus far useful though unremarkable; but it is distinguished by an interesting thesis of the grounds of human rights which function akin to Finnis’s basic goods: agency/autonomy, fundamental interests/dignity, basic needs, a good life. (Pp. 130-34.) Here the author arguably blurs the line drawn earlier between “individual” rights and group rights, for the grounding of human rights (at this point under discussion) does nothing to pick out individuals and are referable to general characteristics: perhaps the author could elucidate the distinction in future work. The final chapter argues for a fourfold distinction among rights: (i) rights of assertion (roughly corresponding to Hohfeld’s claim-right); (ii) rights of aspiration (roughly Hohfeldian liberty but on a grander scale, to include e.g. the right to freedom of expression or the pursuit of happiness); (iii) rights of self-preservation and wellbeing (those required to uphold the possibility of a minimally decent life); and (iv) rights of legal or social organisation (rights unlike (i)-(iii)) that are not bestowed purely in virtue of the humanity of their holders but on the basis of social group membership). (Pp. 144-47.) There is scope in future work for the author to flesh out these ideas, and it is to be hoped that she will do so. For the moment, the book concludes by completing the discussion with which the book started: with the analysis of the concept of individual right.
There is much in this book to contest, but it is never less than vividly thought-provoking, and its discussion is always stimulating. Its relative brevity should encourage readers to engage with its clearly-forged and economically expressed doctrines, and anyone wishing to gain familiarity with the territory of modern rights theories and their history can be well advised to read it.
Jan 25, 2023 Edward Rubin
David M. Driesen,
Does the Separation of Powers Justify the Major Questions Doctrine? (2022), available at
SSRN.
The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder.
His article begins by locating the major questions doctrine in the landscape of statutory interpretation. The doctrine is often viewed as an exception to Chevron deference. Chevron holds that the courts, when reviewing an agency’s implementation of a statute with ambiguous language, should not interpret the statute de novo, but rather defer to reasonable agency interpretations. There is at least some justification for denying such deference when a major question of public policy is at stake. As Professor Driesen points out, however, current use of the major questions doctrine involves statutes that unambiguously place an issue within the agency’s jurisdiction. Rather than a return to de novo interpretation, what the Court does in West Virginia is to ignore the plain meaning of the statute, along the lines advanced in Church of the Holy Trinity v. United States. That 1892 decision rejected the literal language of the statute on the basis of its title, its coordinate provisions, its structure, its legislative history and general policy considerations that seem out of date today (“this is a religious people”) but were not a bad way, at the time, to discern legislative purpose. The current Court bases its rejection of plain meaning, however, on its own dislike of regulation and the increased power of administrative agencies.
Congress enacts various statutes that rename federal buildings, establish historic sites or adjust the tariff on an exotic product, but its significant impact, and the focus of its legislative efforts, is, in fact, on major questions – in recent years, health care, protection from pandemics, the stability of the financial system, and climate change. These questions are also the focus of Congress’ ongoing interaction with the administrative agencies that implement the legislation, consisting of oversight hearings, annual appropriations, and continuous staff level contacts. Moreover, major questions involve matters that are necessarily complex; they require administrative expertise and members of Congress know this when the draft the statute. They are also matters that change and evolve over time as a result of changing circumstances. Professor Driesen points out that these are precisely the matters where the Supreme Court should hesitate to interject its own interpretation of the statute into the complex, evolving relationship between our two policy-based branches. Intervention of this sort does not enforce the separation of powers. Rather, it effaces the separation that should be maintained between these policy making bodies and the federal judiciary. That is particularly true when the Court is not interpreting the language of the relevant statute, but rather imposing its own idiosyncratic views.
Another overly familiar and thus readily forgotten insight of the Legal Process School is that judicial invalidation of a statute enacted by elected representatives is counter-majoritarian. This principle has aroused some skepticism when invoked to deny relief in human rights cases, but it should be understood as resting upon Carolene Products Footnote Four. That is, the Court can validly intervene, and is not being counter-majoritarian, when the political process itself is not majoritarian, either because all coalitions exclude a disparaged minority or because of defects in electoral procedures. In recent years, however, these are precisely the areas where the Court has refused to intervene, denying protection to criminal defendants, eviscerating the Voting Rights Act, and declaring partisan gerrymandering non-justiciable. As Professor Driesen argues, the Court’s most aggressive interventions have been taken against decisions that can be described as hyper-majoritarian. We can question whether technical or minor legislation (in the 117th Congress, for example, the Planning for Animal Wellness Act or the Artificial Intelligence Training for the Acquisition Workforce Act) ever attracts enough attention from anyone but special interest groups. Such statutes can only be characterized as majoritarian on an institutional basis; they were enacted by a representative legislature. But climate change, like health care costs, pandemic disease and financial stability, are the basic content of political debate in our nation. If any issues determine people’s votes, it is these. The specific issue at stake in West Virginia is an oncoming environmental catastrophe that may require abandonment of our coastal cities or the construction of trillion dollar sea walls, devastate American agriculture, kill millions of people in escalating heat waves or apocalyptic storms and endanger the stability of our political system in the process. Professor Driesen’s article properly admonishes the Court for constructing a clear statement rule, unsupported by any real constitutional concern, that takes decisions about this subject away from the people’s representatives and places it in the hands of a few judges with an instinctive but unjustified hostility to the governmental mechanism that gives us our best chance to avert the disaster.
Dec 14, 2022 Felipe Jiménez
Courtney M. Cox,
The Uncertain Judge, 90
U. Chi. L. Rev. __ (forthcoming 2023), available at
SSRN.
The received wisdom about adjudication is that all a conscientious judge needs to decide a dispute is a sound grasp of the facts of the case, sufficient knowledge of the applicable legal materials, and a theory of adjudication to go with them. In The Uncertain Judge, Courtney Cox argues that this received wisdom is incomplete. At least in some instances, she claims, (i) judges might be uncertain about whether their preferred theory of adjudication is correct, and (ii) different theories of adjudication would lead to inconsistent outcomes. In such a situation, judges face a problem of normative uncertainty.
This problem, as Professor Cox argues, is a “meta-problem.” As long as we believe judges can be coherently criticized in certain ways, the problem is real, whatever theory of adjudication or jurisprudential view we think is correct. The problem, as she writes, “floats on top” of first-order jurisprudential debates. (P. 3.) And, as she argues, in the circumstances of normative uncertainty, the judge cannot simply stick to their guns and insist on their preferred theory, precisely because they are aware of the possibility that it might be the wrong theory.
The upshot of the problem is that, sometimes, it might be irrational for the judge to follow their preferred theory. A conscientious yet uncertain judge should, in other words, take into account the likelihood of different theories being right and the cost of error—under each such theory—in the specific case. Given these considerations, for instance, a conscientious yet uncertain textualist might be rationally required to decide like a purposivist.
The implication of Cox’s argument is that the evaluation of judicial decisions occupies at least two distinct levels: the jurisprudential and the rational. (P. 7.) Thus, we can either criticize a judge for not doing what, as a matter of law, they should have done, or we can criticize them for not doing what, as rational beings acting in conditions of uncertainty, they should have done. These two oughts—the legal and the rational—can come apart, as she illustrates with her analysis of Google v. Oracle.
The problem, as Cox argues, is somewhat similar to the parallel problem of uncertainty in the moral domain. She notes, however, that there is an important difference that makes the legal case much more complex: judges do not make single, one-off particular decisions. They have to decide by taking into account previous decisions and the impact of their decision on future cases. (P. 11.)
A key notion in Cox’s argument is the idea of a judge’s “jurisprudence.” A judge’s jurisprudence is their overall theory of adjudication: it will include, as Cox writes:
Theories and beliefs about constitutional interpretation and construction; the appropriate method of statutory construction; the importance and application of stare decisis; the scope of and limits on judicial discretion; the relevance of political, moral, or prudential considerations; methods for resolving legal uncertainty generated by conflicts of law, indeterminacy, or changed circumstances; appropriate aims in judging, and, as relevant, the nature of law itself. (P. 15.)
It turns out that no matter how complete and articulated a jurisprudence might be (and, as Cox notes, in many cases it’s plausible to imagine that most judges have only an incomplete, perhaps inchoate jurisprudence), the problem of normative uncertainty is theoretically inescapable. In other words, it might be empirically more or less rare, but its existence is always theoretically possible.
Professor Cox’s paper introduces a new and important problem into legal philosophy. The article also makes a sophisticated and compelling case that the problem exists and is important, deliberately avoiding offering a fully worked-out solution. I think this is the right strategy, given the complexity of the problem. Still, Professor Cox suggests one model for what a solution might look like: an approach that attempts to maximize the expected correctness of judicial outcomes, built on the basis of an analogy with expected utility theory. As Cox notes, however, such a model faces an important problem given the difficulty of inter-theoretic comparison.
There are, also, multiple future avenues for theoretical development that Professor Cox opens up. The first group of potential further questions includes further debate about whether the problem of legal normative uncertainty in fact exists; its relationship to moral uncertainty; its connections to questions about judicial duty; and whether the problem does, in fact, exist under any jurisprudential view, or whether some views might just transform the issue into a problem of first-order moral uncertainty. The second avenue for further inquiry is, as she already suggests, the development of mechanisms for coping with normative uncertainty in legal decision-making.
There is a third potential development too, into research and reflection on the cultural and sociological conditions that foster normative uncertainty, as an empirical matter, in particular legal systems. In this aspect, it seems to me that, if Professor Cox is right about the theoretical possibility of normative uncertainty, some peculiarities of the American legal system—with its focus on individual judges and styles of judging, the role of political and ideological considerations in judicial appointment, and the lack of a bureaucratized and centralized judicial training and selection regime—make it particularly apt for a high degree of normative uncertainty. This, incidentally, suggests another potential avenue for further research: perhaps the (partial) solutions to normative uncertainty are not just individual decision protocols, as Professor Cox’s example suggests, but also institutional mechanisms and cultural practices that reduce the significance of judges’ personal idiosyncrasies—and therefore that reduce uncertainty by restricting the choice set of jurisprudences.
In sum, we seem to have a potential problem. At the least, Professor Cox has given us reason to wonder whether the problem is indeed there and how to cope with it. And she has done so through a thoughtful and carefully constructed argument.
Nov 16, 2022 Larissa Katz
Aziz Huq,
Property Against Legality: Takings after Cedar Point, 109
Virginia L. Rev. __ (forthcoming 2023), available at
SSRN.
There is a nearly universal assumption in contemporary property theory that clearly defining property rights in terms of exclusion enhances rule of law virtues of clarity, stability and predictability. And there is a corresponding assumption that a rival account, according to which property is a malleable bundle of rights, undermines those same values. Judicial discretion is the main target of this prevailing view: a bundle of rights approach invites courts to configure the content of the “bundle” of rights in socially optimal ways. While there is much to be said for engineering property rights to advance social goals, this can be said against it: it leaves participants in the legal order—litigants, potential trespassers or buyers, even judges—in the dark about what the relevant rights and duties are.
In Property Against Legality, Aziz Huq provides doctrinal and theoretical grounds to doubt this dominant assumption: a stronger right to exclude, he argues, may erode legality. (P. 42.) His point of departure is a recent US Supreme Court case, Cedar Point Nursery v. Hassid. Cedar Point concerned the constitutionality of a California “take access” regulation allowing union organizers to approach agricultural workers on company property three times a day. (P. 16.) The Court concluded that “take access” legislation was an appropriation of the right to exclude third parties—a taking per se. Much of Huq’s article provides a close analysis of Cedar Point itself, which he characterizes as a sharp break from settled takings law. (Id.) He argues that the decision puts property and legality in conflict for two related reasons: (1) it undermines the methodological foundations of takings doctrine by deviating from “ordinary meaning,” (P. 20) “original understandings,” (Pp. 22-23) and “applicable precedent;” (P. 26) and (2) it will lead to more arbitrary power in future, by expanding judicial discretion and enhancing arbitrary private power to decide matters affecting the core interests of other people.
While Cedar Point is widely seen as a victory for proponents of a strong right to exclude, Huq argues that the victory is pyrrhic. On Huq’s account, Cedar Point strengthens the right to exclude at the expense of the rule of law. How do exclusion and legality come apart? The answer Huq gives has more to do with the nature of legality than the nature of exclusion. On Huq’s account, the Cedar Point decision leads property and legality to diverge in a complex way, with rules directed at officials, including judges, becoming more uncertain and rules directed at some citizens (owners) becoming less so. Legality may be unevenly distributed across the constitutional order, with heightened legality in one set of institutions and diminished legality in others. Rules that constrain official action may suffer from a lack of clarity, predictability and stability as a result of a decision like Cedar Point even as rules that guide the conduct of individual citizens become clearer and more predictable. The lesson Huq wants us to draw from Cedar Point is that more protection for the right to exclude can lead to more arbitrary power, even if less of it is in the hands of the legislature and the executive. The net result, he argues, is a constitutional order with strong private property rights that weaken, rather than bolster, rule of law virtues. (Pp. 38-39.)
One of the most vibrant contributions of the article is its emphasis on a quiet form of privatization: the retreat of the state from the public sphere, leaving decisions concerning the fundamental interests of some (farm workers), including their rights of association, to other private actors (farm owners) to decide. Cases like Cedar Point effectively drives the state out of its proper regulatory sphere by forcing it to pay owners for regulation that limits the right to exclude (without any corresponding obligation to pay nonowners for the failure to regulate, protecting owners by limiting nonowners’ freedoms of association and speech). As Huq put it:
By elevating property rights above other entitlements of constitutional magnitude, and by allowing the state to intrude on property only to protect property (not other human goods), Cedar Point ushers into being a constitutional dispensation in which the state is materially deterred from protecting personal interests other than property. (P. 42.)
Cedar Point restrains state power by protecting property rights against state incursions, Huq concedes, but it does so at the expense of other entitlements that protect individuals against arbitrary private power: the Cedar Point farm workers’ associational and dignity rights will be impaired. (P. 42.) Even if Cedar Point increases private property owners’ protection from arbitrary state power, it did so by incurring a net larger increase in vulnerability of individuals at the hands of private power. (P. 43.) And Cedar Point increases arbitrariness even if the analysis is restricted to state action: because private property protections enhance owners’ power to call on state resources to enforce their right to exclude, stronger property protections enhance the unequal allocation of state violence. (Id.)
Teeming with insights and provocative, Huq’s account of property and legality has left me with three related questions: (1) Can property rights ever serve as a constraint on the arbitrary exercise of public power—even if they might not in a post-Cedar Points world? (2) Can the apparent divergence Huq observes in legality (less clarity and predictability in property’s secondary rules for officials and more rule of law virtues in its “primary rules” for citizens) be explained in terms of greater complexity in exclusion? (3) Is judicial discretion to determine the line between appropriation and regulation as problematic as Huq makes it out to be? I will elaborate on each of these questions in what follows.
(1) Is Property Even Potentially a Constraint on Arbitrary Public Power? While Huq’s article takes aim at the claim that a robust right to exclude always bolsters legality by limiting arbitrary power, he does not appear to question that it can do so. But the idea that private property rights could serve to align public power with the rule of law –rather than simply to limit the scope for public decision-making—strikes me as itself deeply mistaken. Private property rights decentralize power by putting private actors in charge of setting agendas for things. That can be seen as shrinking the sphere for public decision-making. But the diffusion of power does not in itself assure the quality of the power left to the state, and, specifically, its alignment with the rule of law. Private property rights are neither necessary nor sufficient to guarantee that the state uses whatever power is left to it for proper (that is, non-arbitrary) purposes. In a world without private property rights, the state would have vastly more power but might still be subject to constraints on the use of public power for improper purposes (such as non-public ones.) And a world with private property rights, the state might uphold a strong right to exclude and yet still, in the sphere of jurisdiction left to it, exercise its power arbitrarily, in the manner of a capricious tyrant. Public power is not aligned with the rule of law from the outside, by making (legal or illegal) state action more expensive, but from the inside, by a constitutional order setting out the state’s mandate and by jurisdictional limits that require the use of public power just for the purposes for which it is conferred.
(2) Does a greater complexity in property’s primary exclusion rules account for the apparent divergence between primary and second-order legality that Huq identifies, post-Cedar Point? “Exclusion” in US property law is on some accounts itself bifurcated, operating in the context of government-individual relations as a right to compensation vis-à-vis the state and as an exclusive right of control and use vis-à-vis private actors in the context of private relations. Legality may not diverge in respect of primary and secondary rules but in respect of kinds of exclusion—weakening legality for both primary and secondary rules in respect of “exclusion” in the context of government-individual relations even as legality remains strong for exclusion in the context of private relations. This would explain away a puzzle I had reading Huq’s article: it seemed likely that any uncertainty judges face in drawing the line between an appropriation and regulation post-Cedar Point would have a corresponding effect on the clarity and predictability of any individual owner’s claim for compensation for an “appropriation” of the right to exclude. There may not be a divergence, then, between primary and secondary legality in respect to property rights vis-à-vis the state: both become less clear and predictable. By the same token, it seems like Cedar Point does not engender any new uncertainty either in primary rules or in secondary rules relating to the rights of owners vis-à-vis third parties. Owners will have to abide by state law, including any take access legislation, whether or not they have a right to compensation. Judges post-Cedar Point will have no more (or less) discretion in determining whether a third party has authorization to enter the owner’s land than they had before and will face no more uncertainty in respect of how to decide a trespass action or how to apply state regulation in a particular case.
Primary and secondary legality may have suffered post-Cedar Point in respect of “exclusion” rules vis-à-vis the state while remaining robust in respect of exclusion rules vis-à-vis private actors. That would mean that primary and secondary legality are aligned, and there is only a divergence in legality for both primary and secondary rules across the different kinds of “exclusion.” Miinding the divergence in exclusion across different legal contexts might make sense of the divergence in legality that Huq identifies.
(3) Is judicial discretion to classify a limit on exclusion as appropriation vs regulation the problem? One reason that Huq gives for the rupture between property and legality post-Cedar Point is the increased judicial discretion it ushers in. Cedar Point replaces a settled distinction between appropriation and regulation with a novel definition of appropriation that is indeterminate and functionally indistinguishable from regulation. (P. 9.) In Huq’s view, the pre-Cedar Point takings doctrine that distinguished between appropriation and regulation was easy to apply and generated predictable outcomes. Post- Cedar Point, while it seems like owners can expect to win more cases as regulation is classified as appropriation, it is unclear when or why judges will classify a regulation as an appropriation. That leaves the decision up to judicial discretion—erasing any rule of law gain from a more robust right to exclude.
I wondered whether judicial discretion in drawing the line between appropriation and regulation is the right target for Huq. Montesquieu thought that if a public decision is not mechanistic, it is arbitrary. That, however, is not a plausible view of legality nor the one I take Huq to hold: The rule of law does not require the elimination of discretion. The application of abstract principles to particular cases,may not be fully predictable without becoming arbitrary. Clarity, stability and predictability are virtues for the law to approximate. It is unnecessary unpredictability in public office that is a vice. Huq acknowledges the difficulty in rooting out the diminished legality of decision rules directed at judge precisely because the judicial role involves contestable judgments about the proper path of the law. (P. 41.) That suggests to me that Huq’s proper target is not judicial discretion in respect of the classification of a limit as an appropriation vs a regulation, but rather the weakening of judicial tools for the proper exercise of that discretion.
Oct 17, 2022 Brian Bix
Paul Miller offers a manifesto for an approach to private law—more precisely, for theories of doctrinal areas within private law–that is both traditional and quite new. In his new article, The New Formalism in Private Law, he names the approach, “New Private Law Theory” (and I will follow his practice of abbreviating it “NPL”). It is grounded on a rejection of the sort of reductive, cynical, and skeptical approaches to law and legal rules associated with American Legal Realism, and it promotes a more internal (less instrumental) understanding of law.
Miller offers the following as the essential positive claim of NPL. “[P]rivate law contributes to the law’s wider essential function: providing practically reasonable normative guidance to its addressees through authoritative resolution of conflict and coordination issues that face a political community, thereby enabling the community to realize its aspirations to legality.” (P. 178, emphasis omitted.) NPL focuses on both form and substance, and on both the institutional nature and the normative claims of (private) law: i.e., that “legal systems are historically iterated, constructed normative systems, and that these systems claim practical authority over their addressees.” (P. 179.)
The article is worth close reading just for its very useful overview of the sometimes overlapping, sometimes contrary uses of “formalism” in American legal scholarship over the decades. The article nicely summarizes many of the theories labeled “formalist” by either their authors or by critics. (Pp. 179-95.)
Miller summarizes the features of NPL: including judges acting in good faith; the value of “legality” as such; close attention to doctrine and legal structures; and a concern with the systematicity of law. (P. 196.) NPL also emphasizes certain categories of legal form through which law structures behavior: status, holdings, transactions, relationship, and associations. (P. 205.) At the same time, Miller insists that such internal interpretations of law should not be confused with or “slide[] into apologetics.” (P. 235.)
Miller’s response to the cynical view that law is just a pretense offered for judicial decisions reached for other (extralegal) reasons or based on hidden motives is to note that this is a descriptive claim, subject to empirical verification or falsification, while objecting that the cynical view offers no normative guidance on what law should do and how legal officials should act. (Pp. 212-13.) For NPL, the prescription for judges is straightforward: “act in good faith and giv[e] effect to the law.” (P. 214.) NPL recognizes that judges sometimes act in bad faith, and that sometimes political or social culture may encourage this, but according to NPL these are defects to be fought, not worldly wisdom to be celebrated. (Pp. 214-15.)
NPL’s focus on “practical reason as guided by law” (P. 209) shows how the approach might be understood as a sort of middle path between classical American Legal Realism, on one hand, and the “legal dogmatics” of traditional continental European jurisprudence, on the other. Like many Legal Realists (in particular, Karl Llewellyn), NPL focuses on how law, interacting with other forms of normativity, affects actual behavior. On the other side, modern legal dogmatics (pure doctrinal thought) assumes that there is a truth about law which we can discover, but tends to be less concerned about effects the law has in the world, or how (in the terms of NPL) law fits into our practical reasoning. NPL’s rich sense of “legality” borrows from ideas developed by Lon Fuller back in the 1960s (Pp. 198, n.237) and also from more recent writings, like those of David Dyzenhaus (n.197, n.217; see also Paul B. Miller, The Long Arc of Legality (2022)) to develop this middle path.
Perhaps it is not a coincidence that the idea of taking doctrine seriously can be found both in “the new formalism” of the New Private Law (P. 222) and the movement known as “the New Legal Realism.”
After a period in which it was often said that “we are all legal realists now,” perhaps we are coming full circle, to an enriched understanding of “formalism” as no longer a mere pejorative, but rather as a label for serious and complex efforts to determine the distinctively legal way that doctrinal categories and structures can and should guide the behavior of judges and citizens subject to law.
Sep 15, 2022 Robin Kar
Many philosophers of the private law could profit from a close read of a new article by Professor Larissa Katz entitled Equitable Remedies: Protecting “What We Have Coming to Us.” The article draws a distinction between “what is ours” (the content of which is defined by various bodies of private law like property and contract, according to Katz) and “what we have coming to us” (which is, roughly, what we would have if we were to have full access to what is ours, without obstruction, diversion, or expropriation from anyone with notice).
According to Katz, private law obligates parties to respect what is ours, in part by offering legal remedies that allow us to hold others accountable to pay for losses associated with their failures to meet those obligations. Private law gives us normative powers, which can help us define what is ours, thus helping us to plan our lives and exercise our liberties. There is, however, always a gap between what is ours and what we have coming to us because enjoyment of what is ours sometimes depends on how others act or exercise their normative powers. This gap cannot always be closed by standard legal remedies, insofar as they only compensate for losses. Professor Katz’s thesis is that many equitable remedies from diverse areas of private law can be understood in a unified manner as seeking to close that gap by preventing others (sometimes even third parties who are not subject to standard legal remedies) from obstructing, diverting, or expropriating what is ours, thereby protecting what we have coming to us.
Despite Katz’s terminology, I do not think it is ultimately productive to think of Katz’s distinction (i.e., between “what is ours” and “what we have coming to us”) in purely temporal terms. On the side of “what is ours,” Katz includes not only existing property rights but also rights to future contractual performances. The gap she has in mind seems to be less about time and more about an important limitation of legal remedies—and hence of the law—to ensure that we can enjoy fully what is ours without equity’s help.
Let us examine one of Katz’s future-oriented examples from contract law to elucidate the distinction she has in mind. Katz asks the reader to consider a contract for the sale of Blackacre. If the purchaser were to pay the price of the land and the seller were to refuse to transfer title, then—Katz correctly observes—the purchaser could seek specific performance in a claim for breach of contract. Interestingly, this legal remedy can function not only as an in personam right to performance from the seller (which falls within “what is ours,” in her terminology) but also as an equitable lien that attaches to the land and can be asserted against any subsequent buyer with notice of the earlier agreed-upon sale. Because there is no privity of contract between the original claimant and these subsequent buyers, and because there is no loss arising from any entitlement that both these parties agreed to, this aspect of the equitable remedy is an important legal datum that has thus far received too little attention in discussions of contract remedies. Katz suggests that the existence of this equitable lien reflects an interest in protecting not just what is ours but also what we have coming to us.
Similarly, if the original seller of Blackacre were to transfer title but not receive payment, the seller would typically have not only a remedial right to the purchase price (which is part of what is “ours,” in Katz’s terminology) but also an equitable lien that would allow the seller to resort to the land to secure that payment. That lien would typically run against some third parties (who acquire the land with notice of the original sale) and so could not arise simply from the agreement in the contract either. Here is another legal datum that resists many familiar explanations, and—once again—Katz suggests that its existence reflects an interest that goes beyond protecting what is ours to protecting what we have coming to us.
I find these aspects of equitable remedies fascinating. There appear to be aspects to these remedies that become available only once there is a contract but also go beyond what many contract theorists have sought to explain in the context of property sales. In identifying these features, Katz is clearly profiting from her extensive work in property law and how it operates. But she is also—I think—articulating one specific way that legal remedies can be “inadequate” (which is a common trigger for equitable remediation)—thus clarifying an important aspect of the limits of law and the importance of equity.
An account like this would surely profit from a wider look at equitable remedies in a broader range of contexts. Katz does not disappoint in that regard. She offers parallel and often intriguing accounts of puzzling aspects of equitable remedies in areas ranging from property law and nuisance law to unfair competition, the law of wills, and civil procedure. Katz’s explanations of these broader doctrinal facts are not the only ones available, and different readers will find different accounts more or less compelling. Still, this broader discussion is greater than the sum of its parts. Its cumulative impact is to offer generous support for the claim that legal theorists in a number of areas may well profit from close attention the distinction she draws between what is ours and what we have coming to us. That alone is a reason to read this article carefully.
Aug 3, 2022 Barbara Levenbook
In this book, The Making of Constitutional Democracy: From Creation to Application of Law, Paolo Sandro has done what few in recent common law scholarship have attempted: presented a persuasive case for the interconnection between some issues in high legal theory and democratic legitimacy. His excursion into legal theory is needed to argue against, among others, Kelsen, legal realists, critical legal scholars, and interpretivists that there is a meaningful distinction between law-applying and law-creation and that the former is not always the latter. But these points are also pivotal to democratic theory. His case, briefly put, is this: if there is only constant creation of meaning in legal processes, then there is no such thing as applying the (ex ante) law, and law could not fulfil its function of conduct guidance in complex societies. Also, there would be no way that people rule themselves, even through their representatives, for whatever is legislated or democratically created does not (ex ante) determine the results of individual cases. So there could be no real collective autonomy, undercutting democratic legitimacy.
Sandro is discussing law-application not only by officials, but by private law subjects as well. The book is a real learning experience. If you have accepted some of mainstream legal or political thinking, get ready to have several of your received ideas challenged on a sophisticated level.
The degree of precision in this discussion may be surprising to those who are familiar with the usual English-language literature on the separation of powers, the rule of law, constitutions, and norms, to name just a few subjects. The book discusses theories and draws insights from both Anglo-American jurisprudential scholarship and the Continental tradition. It does this so much that at points, it has a survey-the-literature quality. You will learn much more than you expect about the positions of thinkers on a variety of topics in theoretical jurisprudence and political theory. That includes taxonomies and classifications that do not always seem essential to Sandro’s main argument stream, but may be valuable as clarifying frameworks in some debates.
All sorts of topics receive Sandro’s treatment: the nature of constitutions and constitutionalism, the linguistic meaning of legal texts, the nature of discretion (and why Dworkin’s taxonomy isn’t helpful or accurate), the connection between normative defeasibility and radical rule scepticism, the doctrine of the separation of powers and the difference between it and the division of powers, even (briefly) methodology in general jurisprudence. The book also offers a criticism of Hobbes, based on archaelogical discoveries, on the passage from pre-political to political society; a view of the common law as a different kind of law, having a different kind of connection, to the exercise of political power than code law; a critique of Leiter’s moderate legal realism (borrowed from Schauer); and an account of a tension between two ideals, the rule of law and what Sandro calls “legality.” We learn, e.g., a constitution can be only political in nature, and that there are four types of rule application with different amounts of discretion associated with them. In these respects, the book is a tour de force.
The book has limitations. One of the most important for common law thinkers is that Sandro’s account of law-application only pertains to norms that can count as what is communicated by a legal text (created by an authority with the power to do so), according to his theory of the meaning of legal texts in Chapter Five. He has no clear account of law-application for common law decisions by courts, even those following precedent, or of law-application for those courts applying principles of a political constitution, as in the U.K.
What interests me most in the book is Chapter Five, where Sandro rejects the Gricean and neo-Gricean accounts of meaning and favors the idea of text-acts to replace the idea of speech-acts for legislation. I think he’s done an excellent job in this, with compelling and carefully crafted critical arguments, grounded in sound empirical observations. He is intent on correcting the direction of much legal theorizing by “putting lay people back at the centre of law’s interpretive field….” (P. 5.) Establishing, correctly, to my way of thinking, who controls meaning and how are large steps in this direction. This enables him to give an account of easy cases (when legal texts are all that is at issue) that do not require adjudication, a realm of determinacy in law.
I do not agree with all of Sandro’s philosophical claims, even in Chapter Five; but I think the reader will find that in spite of a few flaws, the book is a worthwhile addition to the literature on a number of key topics in legal theory and democratic theory.
Jul 5, 2022 Thomas Bustamante
David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart (2022).
David Dyzenhaus argued in the last paragraph of The Long Arc of Legality that, except for the rare cases where there is a need for a revolution, “our moral and legal lives are completely and utterly intertwined.” (P. 422.) But this apparently radical endorsement of natural law theory is nuanced because Dyzenhaus has only a pragmatic morality in mind. In agreement with Hart, he rejects the assumption that legal philosophers should choose between the metaethical positions of moral realism and emotivism (P. 370) and suggests, instead, that the law is a kind of “laboratory for the testing of moral ideals.” (P. 387.)
A distinctive and interesting part of Dyzenhaus’s contribution is his explanation of how that pragmatic morality relates to law. To understand the law’s authority, Dyzenhaus puts legal subjects, instead of officials, at the center of legal inquiry. Jurisprudence’s “first question” becomes the question that legal subjects are entitled to ask from the legal system’s internal point of view, that is, the question “But, how can that be the law for me?” (P. 2), which Bernard Williams described as the “Basic Legitimation Demand” of any political society. A modern state must satisfy that justificatory requirement because that is what shows that such state “wields authority, rather than sheer or unmediated coercive power, over those subject to its rule.” (P. 213.)
An equally important element of Dyzenhaus’s construction is the “constitutional idea” that there is an “ongoing practice which constitutes legitimate authority” by means of the “voluntary interaction of the very subjects who are subject to that authority.” (P. 3.) Dyzenhaus turns to Hobbes’s social contract to justify this point. Nevertheless, he emphasizes a frequently neglected aspect of the role of officials in Hobbes’s Leviathan, which is the interpretive role to maintain both the civil order and the “mutual relationship of protection and obedience” that are constituted through that contract. (P. 6.) The “first question” of jurisprudence, adduced above, is constantly reiterated and must be answered to every subject, in every act of legal creation and application of juristic norms.
Dyzenhaus believes we should put to the side the question whether there is a necessary connection between law and morality and concentrate our efforts, instead, in developing a dynamic theory of law. The fundamental debate within jurisprudence is “neither between legal positivism and natural law theory, nor between theories of law and theories of adjudication”, but rather the divide “between static theories of law, as espoused by Bentham, Austin, Hart and Raz, and dynamic theories, as espoused by Hobbes, Kelsen, Radbruch, Fuller and Dworkin.” (Pp. 22-23.)
This brings us to a crucial disagreement between Kelsen and Hart. The problem of Hart’s Separability Thesis, for Dyzenhaus, is that it presupposes a static conception of law. Hart’s objections to Kelsen’s epistemological principle of unity – that prevents one from accepting a conflict between a legal and a moral norm, or between a municipal norm and a norm of international law – “missed entirely the most important dimension of Kelsen’s legal theory” (P. 20), which is the fact that such theory includes an account of the “dynamic process of legal change”, instead of remitting these changes to an exercise of discretion in an “extra-legal space.” (Id.)
While Kelsen’s legal theory is a dynamic theory that explains the legal ways in which officials perform their task to interpret and develop the law, Hart’s jurisprudence has little to say about legal interpretation. On Kelsen’s hierarchical structure of legal norms, “law regulates its own creation inasmuch as one legal norm determines the way in which another norm is created, and also, to some extent, the contents of that norm.” When we consider the details of this interpretive claim, we can appreciate another important difference between Kelsen and Hart. Legal interpretation, for Kelsen, is partly determined by the “juristic” values embedded in law, which Dyzenhaus–contrary to Kelsen’s self-understanding (x)–interprets as the “principles of legality” that constitute the “internal” morality of law, in Fuller’s sense (P. 316.)
Hart’s jurisprudence, in turn, upholds that in every legal case there is either a rule with a determinate legal content, or a penumbra space where a legal change is required, so that inside that space the judge is “not doing anything different from legislators” who resort to an external morality in order to modify the law. (P. 219.) Hart’s account of judicial discretion becomes, therefore, vulnerable to Austin’s “biggest mistake,” (P. 20) which was to treat the “law as a system of rules complete and ready for application, without regard to the process of their creation.”
Perhaps a traditional legal positivist will be unhappy with these thoughts, because Dyzenhaus ends up finding more connections between Kelsen and Dworkin than one could ever find between Kelsen and Hart. According to Dyzenhaus, Hart was wrong to accuse Dworkin of trying to undermine a theory of law by offering only a theory of adjudication that stands in a different level. That accusation fails, Dyzenhaus argues, precisely “because Dworkin, like Kelsen, argued for a dynamic model of law.” (P. 248.) Part of the task of a dynamic theory of law is to explain how the law regulates its own creation, including by means of adjudication. “For Kelsen the conflict [between municipal law and international law, or between law and morality] arises only if one adopts the static conception of law,” because on the dynamic model the legal order itself provides the procedures and the interpretive principles that allow this conflict to come to an end. The epistemic principle of unity, which underlies Kelsen’s postulate of a basic norm that allows us to interpret a set of authoritative pronouncements as constituting a single system, establishes a requirement of consistency and determines the “specific function of juristic interpretation,” which is to “eliminate these contradictions by showing that they are merely sham contradictions” once the law is understood in an intelligible way.
The best place to look for Dyzenhaus’s pragmatic morality, therefore, is inside the law, in the “principles of legality” that discipline the way in which political power is transformed into law. The law makes a moral difference in our lives not because it mirrors a pre-existing external morality that must be reflected in its norms (or, perhaps, a personal morality that a good-faith interpreter might wish to project into the law), but because it establishes processes for mediation between authorities and legal subjects, whereby “political judgments are converted into legal content.” (P. 3.)
The principles of legality play, in this dynamic process, a double role, which corresponds to two different “Kelsenian ladders” in the law’s hierarchical structure (or, if you want, two different aspects of the same ladder). As Dworkin explained in an early comment on Hart’s critique of Kelsen’s doctrine of the unity of law, Hart presents a question-begging response to Kelsen, when Hart objects to Kelsen’s requirement of consistency among different norms. Kelsen’s argument against normative conflicts should not be treated as a strictly logical argument, because that argument is not a descriptive statement of the kind an external observer asserts while purporting to report the content of a given norm, but rather a statement within the “dynamics of legal reasoning” that purports to make a conclusive statement “that some man or some official ought to do something,” all things considered.
It is this Dworkinian insight that inspires Dyzenhaus to develop the metaphor of two different Kelsenian ladders. The content of a norm must be justified both because the enactment of such norm is “legally authorized” and because it “fits within the unified field of legal meaning made up of substantive as well as formal norms” (P. 258.) In other words:
Besides the ladder of formal authorization there is what we can think of as the ladder of material concretization. When legal officials exercise their formal interpretive authority, they are also giving further content to the norm or norms they are interpreting, which requires an act of creative judgment. But, while creative, the judgment is constrained by the requirement that its content is understandable as a norm within the unified field of meaning. (Id.)
One of the roles of Kelsen’s basic norm, for Dyzenhaus, is to provide an epistemological norm that not only instructs officials on how to create a law, but establishes also an intellectual requirement to understand it in a meaningful and intelligible way. As Kelsen has put in a relatively early essay, “if the system of positive legal norms, reared upon the basic norm, is to be a meaningful whole, a comprehensive pattern, a possible object of cognition in any sense…then the basic norm must make provision for it”. To establish the validity of a legal system, the basic norm must contain a principle of non-contradiction and a set of “principles of interpretation” to determine how to understand the law.
By focusing on this aspect of Kelsen’s theory, Dyzenhaus departs from a central assumption of an influential interpretation of Kelsen in contemporary jurisprudence, namely the “weak reading” of authority, which claims that law’s authority is primarily addressed to legal officials.(P. 163.) If Dyzenhaus’s interpretation of Kelsen is right, it is the other way round: Kelsen’s theory of legal authority should be interpreted according to the strong reading of authority, because it places the “legal subject” in the “front and centre” of any authority relationship. (P. 164.)
Furthermore, the basic norm plays not only the role of explaining the seemingly evident fact that the constitution – if we consider only the validity of a municipal legal system – is legally valid (Id.) It performs, in addition, an interpretive function because it allows us to establish the right way – instead of only another way – to interpret and understand the content of law. By allowing us to understand the law as a dynamic system, which is conceived of as a gapless system, it assumes a principle which governs the way in which we interpret the law and explains how a polity is “governed in accordance with the rule of law in that law regulates its own production and all legal problems are solved in a dynamic law-governed process.” (P. 166.)
I think that Dyzenhaus’s Kelsenian account of interpretation, legal authority, and political legitimacy is very successful. Dyzenhaus’s book is a masterpiece. There are few works in contemporary legal philosophy that match its standards of quality and innovation. Dyzenhaus’s book combines the virtues of originality and insight, which are typical of authors like Dworkin and Raz, with the equally important virtues of discipline, sensitivity to historical context, interdisciplinarity, and generosity in the interpretation of other authors, which mark the works of Postema and other scholars.
You might find Dyzenhaus’s opinions unorthodox and distant from Kelsen’s original insights, and perhaps you are right about that. In effect, Dyzenhaus explicitly claims that “Kelsen’s theory cannot remain “pure”, or at least not pure in the way he understood this attribute, that is, as apolitical”. (P. 418.) But I suppose that, as a pragmatist, Dyzenhaus probably wouldn’t mind. After all, Dyzenhaus interprets Kelsen’s theory in the same way that a pragmatist would interpret our political morality or, perhaps, the internal morality of law, that is, by making explicit the implicit commitments of such morality (P. 386) and eliminating incompatible assumptions therein. (P. 387.) This pragmatic yet non-instrumentalist method of legal interpretation is one of the most promising candidates to overcome the current deadlock between natural law and legal positivism (P. 1), that seems to prevent the possibility of progress in the legal philosophy of our time.
