Jun 26, 2024 Bill Watson
Francisco Javier Urbina,
Reasons for Interpretation (Feb. 9, 2024), available at
SSRN.
Debates over legal interpretation—like those between originalists and living constitutionalists or between textualists and purposivists—are intractable and long-running, with no end in sight. A recent and welcome development in these debates has been increased attention to the background question of how to choose an interpretive method. What kinds of facts or reasons count in favor of any interpretive method? Can a better understanding of the nature of law, language, or interpretation answer which interpretive method is correct or best? Can facts about a community’s law or legal practices do so? Or must we look instead to normative reasons, i.e., to moral, political, or other reasons that favor acting in some way?
Francisco Urbina’s article, Reasons for Interpretation adds to this growing literature on how to choose an interpretive method. His answer is simple: only normative reasons can ultimately justify an interpretive method. Defending an interpretive method therefore requires reference to things like which method best satisfies deontic constraints, advances democracy or the rule of law, or promotes other values. On the flip side, one cannot defend an interpretive method simply by appealing to facts about the nature of law, language, or interpretation, nor can one defend such a method simply by appealing to facts about our law or legal practices. These facts are relevant to interpretive choices only if and insofar as normative reasons make them so.
Urbina calls this answer to the how-to-choose question “the normative choice thesis.” That thesis aligns closely with what others, including Cass Sunstein, Richard Fallon, and Lawrence Solum, have argued before. Urbina’s key contributions are to (1) give a clear and straightforward argument for the normative choice thesis and (2) draw out generally overlooked implications of that thesis for debates among originalists, living constitutionalists, textualists, purposivists, and the like. Although Urbina does not directly enter into these debates or defend one side over any other, he offers constructive advice on how the debates can more productively move forward and on what form any satisfactory interpretive method should likely take.
As I understand it, Urbina’s argument for the normative choice thesis has two premises. First, interpretive methods concern how judges or other officials should act when engaging with a legal text for some purpose, whether that be “deciding a case, declaring what the law is, passing legislation coherent with other norms, or something else” (P. 24.) The choice of an interpretive method is thus a choice to act in some way. Second, a choice to act in some way must ultimately be justified by normative reasons alone. Facts about our concepts, law, or practices bear on how to act only insofar as they give us normative reasons. From these premises, Urbina concludes that the choice of an interpretive method must ultimately be justified by normative reasons alone.
I will return to this argument shortly, but first I want to highlight one implication that Urbina draws from its conclusion—namely, that interpretive choice is contingent. The normatively best interpretive method may vary according to who is doing the interpreting, what kind of text is being interpreted, the surrounding social or political context, etc. Given these variations, it would be shocking if a single method turned out to be best across the board, for all interpreters in all contexts. Many judges and theorists today publicly identify with a single method (e.g., “I’m a textualist”); but if Urbina is right, they should instead make more limited claims about which method is best relative to performing a specified role in a specified range of contexts.
Crucially, contingency does not entail the absence of regularity. We need not infer that the most that anyone can say about legal interpretation is that judges should exercise normative judgment on a case-by-case basis. Even if no interpretive method is best for all cases, the balance of normative reasons may predictably favor adopting one method in a subset of cases. This result, as Urbina notes, “vindicate[s] the fainthearted” (P. 53.) A common move in interpretive debates is to criticize one’s opponents for inconstancy—for failing to adhere to their interpretive method across the board. But that inconstancy may be a feature, not a bug (providing that a principled line exists between contexts where the method should apply and contexts where it should not).
While I am friendly to Urbina’s argument, I should note a respect in which it may be vulnerable. He offers little support for his first premise, i.e., that interpretive methods are about how judges or other officials should act. In this respect, he does little to engage with Mark Greenberg, Scott Shapiro, and others who deny that premise and claim instead that interpretive methods are about how to discern what the law is. Likewise, his article may not speak to textualists or originalists who claim that their methods concern how to follow the law. In short, more needs to be said to show that our debates over legal interpretation are centrally about how officials should act; but once we accept that premise, Urbina helpfully demonstrates what follows from it.
Lastly, one might wonder: What accounts for the recent surge of interest in how to choose an interpretive method? My sense is that what Urbina calls the “normative choice thesis” has been largely taken for granted for much of the history of these debates. Earlier participants in the debates—from Justice Scalia to Judge Posner—typically focused on normative reasons for interpreting legal texts one way or another, without seeing a need to explain why normative reasons mattered. More recently, however, an increase in non-normative arguments for interpretive methods (based on general jurisprudence, a community’s law, etc.) has built up pressure to clarify what exactly interpretive methods are and how to adjudicate among them.
Urbina takes up this task of clarifying the ground rules for interpretive debates. More than that, he explains the form that any viable interpretive method is likely to take. We should be wary of sweeping pronouncements about how to interpret legal texts irrespective of an interpreter’s role, the relevant area of the law, and other circumstances. What we need instead are “more tentative, circumscribed, compromising, and, overall, modest proposals for interpretation” (P. 55.)
May 30, 2024 Thomas Bustamante
Some influential philosophers believe that law does not give us any “real” reasons for action. Like games, fashion, and etiquette–we are told–law guides our behavior only in a weak and uninteresting way. It provides “formal,” rather than “robust” reasons for action. Legal philosophers should, therefore, find a better use of their time, by turning their attention to more relevant subjects, like morality and metaethics. This claim is not just a second-order assertion to entertain academics in philosophy seminars, but a consequential practical point. If you accept it, you may think that law possesses neither “practical” nor or “influential” authority, but only, if any, a sort of “theoretical” authority: law sometimes gives us reasons to believe in “the truth (or falsity) of deontic propositions, but it does not give reasons for action.” The only role law can play is an epistemic role: law can point at some action when we do not know exactly what to do. Even in that case, however, it only gives us reasons when we do not feel the need to deliberate carefully or think too hard. The law is given and we think fast when we think about law. The law might help us “do the thinking” when we are lazy or the matter at stake is not serious enough, but it cannot alter the actual balance of reasons. If you face a true ethical challenge or a serious practical dilemma, you’d better turn to morality instead of law.
Some nice books on the rule of law recently resisted these thoughts. It has been argued, for instance, that this mindset does not “take the law seriously” because it neglects a fundamental interpretive dimension of law, and that it fails because it disregards the law’s ethical role in our communal lives. These and other intriguing philosophical works grew under the influence of Jeremy Waldron’s contributions to the rule of law, which are spread over a sea of papers that only a very diligent researcher could recollect. I am happy that he has now published some of these works in a coherent and well-organized collection. Waldron’s scholarship on the rule of law displays even more subtly and depth when these works are read together.
In the inquiry about the character of law, one of Waldron’s most central worries is with what he calls a “casual positivism”. “Modern students of jurisprudence–particularly modern legal positivists–are too casual about what a system of governance has to be like in order to earn the appellation ’law’” (P. 42). They seem to think that law is just a device for social control, which guides us only with discrete rules that leave little room for practical judgment of the subjects of legal governance. Legal authorities guide us, for casual positivists, in a behavioristic way, because they merely intend to get us to “do” certain things. Legal commands direct us in the same way that someone is “herding cows with a cattle prod or directing a flock of sheep with a dog” (P. 81). This is not proper legal guidance, Waldron suggests, because most of the time the law guides us with practical standards instead of a strict “model of rules,” in the sense that Ronald Dworkin made famous in his earliest works. (P. 124.) To be sure, Waldron thinks that even when the law purports to guide our behavior with discrete and specific rules, like speed limits and warning signs, it need not be interpreted in a behavioristic way. When the law respects our dignity–-as it must–-“it takes seriously the mental and epistemic aspects of full-blooded human agency” (P. 125).
Waldron thinks that in some matters the law must adopt specific rules because a requirement of clarity becomes especially important and we must have a determinate legal response to “monitor and self-control” our behavior to a clear indication stated in a legal provision. But this does not happen all the time. Clarity and predictability are without doubt important values and a relevant concern of the rule of law, but they don’t exhaust its normative significance. “Having one’s action guided by a norm is not just a matter of finding out the norm and conforming one’s behavior to its specification. It can involve a more complex engagement of practical reason than that” (Pp. 20-21). In communities that treat us as rational agents, the law usually resorts to general clauses and abstract standards like “reasonable,” “fair,” “prudent,” “giving due regard” and the like to require an “evaluative judgment” of the people whose conduct is guided by public laws. (P. 127.) These terms, according to Waldron, are not merely empty slogans like “Do the right thing,” but rather have some “cognitive content” that can be grasped by responsible legal subjects. (P. 114.) The law uses these standards not only when it orients the reasoning of officials and organs of the state, but frequently, and crucially, when it assigns to individuals the task of “applying norms to themselves” (P. 96). In such cases, the law “mobilizes the resources of practical intelligence possessed by the norm subject” and guides her agency by “triggering thoughtfulness” rather than “superseding” it by completely predetermining a human behavior in advance. (P. 21.)
Waldron emphasizes, therefore, the “argumentative character” of law. Any respectable philosophy of law, he argues, must offer not only an account of the concept of law but also an account of the rule of law and how these two concepts are intrinsically intertwined. (Pp. 35-74.) Moreover, a philosophy of law must explain both the “formalized procedural aspects” of juridical argumentation–including courts, hearings, and so on–and the “defining role of law’s aspiration to achieve coherence among the norms that it contains and to the forms of reasoned argumentation that are involved both in maintaining consistency and in bringing it to bear in the application of norms to particular cases’” (P. 70). I think it is a distinctive aspect of Waldron’s jurisprudence that he accepts (and draws inspiration from) Dworkin’s idea that the law’s argumentative character makes it a special kind of social practice, where legal subjects (judges and citizens alike) are “protestant” interpreters, because it is part of their political responsibility to make their “own judgment” about the content and the integrity of contested political concepts. This idea is so crucial in Waldron’s book that at one point he writes that he is “paraphrasing” Dworkin when he challenges the assumption that the value of a precedent lies in its predictability and advocates, instead, a more judgmental character of precedent-based reasoning. (P. 28.) Precedents work, for Waldron, as “points of departure” rather than “major premises,” because “unlike statutes and the provisions of written constitutions, cases do not easily disclose the principles of their decisions” and we must, in consequence, “argue our way upward through the cases themselves to arrive at the principles they stand for” (P. 29).
It is true that Waldron’s analysis of legal standards (Pp. 124-34), stare decisis (Pp. 179-207), self-application of laws (Pp. 96-119), and probably other topics sound admittedly Dworkinian, and that the point about precedent made in the previous paragraph sounds very much like Dworkin’s account of “local priority” in legal reasoning and “justificatory ascent.” Nonetheless, Waldron is doing much more than paraphrasing Dworkin on these important points. Although Dworkin repeatedly argued that responsible interpreters make their own judgments to make sense of contested legal concepts, he left this view relatively undefended. While Dworkin mentions an intriguing connection between the interpretive value of integrity and the principle of political equality, in chapter 6 of Law’s Empire, he does not defend it with a general account of the rule of law and a complementary account of rational human agency; he does not make an explicit approximation between human dignity and the ordinary thinking about legal concepts in our practical deliberations.
Waldron’s analysis of thoughtfulness in juristic reasoning–-either in the reasonings we undertake to apply the law, in acts of self-application (Pp. 96-120) and in institutional procedures where we make submissions and present our views before others in legally regulated processes (Pp. 159-78), or in the legislative processes in which we explicitly make new laws (Pp. 212-18)–-does a wonderful job in at least two crucial matters: first, in refining our intellectual responsibilities towards the law, i.e., in making them more concrete and specifying the “micro-jurisprudential” aspects of legal inquiry (or, if you prefer, the “details of the way in which laws actually operate” and orient our judgments) (Pp. 106-09); secondly, and perhaps more importantly, in explaining how the rule of law protects our dignity in a way that is “deeper, more pervasive, and more intimately connected with the very nature of law” (P. 75). The rule of law (or, if you want, the law) protects a person’s dignity by recognizing her “as having the ability to control and regulate her actions in accordance with her own apprehensions of norms and reasons that apply to her”, i.e., by assuming that “she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organizing her life), an account that others are to pay attention to” (P. 76.) This is not only Waldron’s greatest contribution to the rule of law. It is one of the most important ideas that the rule of law entertains, and I think that if you don’t grasp this idea you will fail to understand anything else about the “law” or the “rule of law.”
Hence, if, like the philosophers cited in the opening paragraph of this review, you desire to proclaim your belief in the law’s uselessness in practical reasoning, I advise you not to read Waldron’s book. It might shake your confidence and undermine your casual positivism about the character of law. But if, as I hope, you wish to enhance your understanding of the law and capture how it is related to our dignity and our rationality, more generally, this is one of the first books you should read.
May 1, 2024 Andrew Halpin
The common practice of teaching law students the rules of precedent is a misguided one, if we take seriously what María Beatriz Arriagada has to say in her article in a recent issue of Ratio Juris. In “The Two Faces of Precedent: A Hohfeldian Look,” Arriagada offers a radical alternative to the conventional portrayal of precedent as a system of regulative rules.
Arriagada’s article stimulates and provokes across a range of issues. Commencing with a preliminary reflection on the nature of analytical legal philosophy/theory (Pp. 25-26), she offers a number of insights to challenge assumptions made on the way the practice of binding precedent works, in developing her own structural analysis of precedent. At the same time, Arriagada draws on a sophisticated understanding of the Hohfeldian analytical scheme in her efforts to bring precision to a detailed analysis of the actual workings of precedent.
Her preliminary reflection focuses on a role for legal theory in refining specialized legal discourse through removing defects and revealing concepts assumed within it. Applied to her current topic, this amounts to confronting “certain distorted representations of binding precedents” as well as “making explicit … the idea of bindingness” (P. 26.)
The use of the Hohfeldian scheme to aid this task is a reflection of a resurgence of interest in Hohfeld’s work, now more than one hundred years after his death (see Wesley Hohfeld a Century Later: Edited Work, Select Personal Papers, and Original Commentaries). This has included taking Hohfeldian analysis to new areas of interest, and, in particular, adopting the fuller resources provided by Hohfeld once the final four of his conceptions, centring around legal power, are included. Timothy Liau has recently revealed how a proper acknowledgment of Hohfeldian powers can illuminate our understanding of the doctrine of privity, in his book Standing in Private Law. In her article, Arriagada provides a rigorous analysis of binding precedent through her account of the legal powers that are involved in the practice.
Despite being critical of the “rule model” of precedent, Arriagada’s purpose is ultimately constructive–offering “a contribution to [its] reconstruction” (P. 29.) Fundamental to this enterprise is the recognition that since invalidity of a judge’s decision is a standard consequence of a failure to follow a binding precedent, it follows that the practice of precedent cannot be composed entirely of regulatory rules, since a failure to follow these would provoke a sanction (P. 28.)
In discussing existing approaches to precedent, Arriagada notes an analysis in terms of two powers: (i) the power of tribunal X to make a binding precedent, and (ii) the power of tribunal Y to apply a precedent (Pp. 32-33.) She criticizes the concentration on power (ii) here, for regarding this alone as sufficient to explain binding precedent. Instead, she insists (Pp. 34, 36) on recognizing the correlative to the power of tribunal X in (i), namely, a liability in tribunal Y.
Subsequently, the liability of tribunal Y is investigated and amplified. The “two faces” of precedent amount to the power of tribunal X and the liability of tribunal Y in (i), but the full understanding of precedent only emerges once the implications of tribunal Y being under a liability–“that the legal situation of tribunal Y will be modified each time tribunal X exercises its power to dictate precedents” (P. 37)–are understood.
Two possibilities for the way in which the modification of the legal situation of tribunal Y may occur are considered by Arriagada in some detail (Pp. 38-42): Y being under an obligation to follow the precedent of X; Y being under a power to rule on the positions of the individual parties in the case before it by applying the precedent of X (and concomitantly under a disability to rule on the case contrary to the precedent of X).
Although she stresses that the two possibilities are not mutually exclusive (P. 38), it is clear that, for Arriagada, in dealing with the practical outworkings of a system of precedent (P. 39), a modification through obligation, resulting in a sanction for breach, is less likely. In contrast, the modification through power has as a consequence of neglecting to exercise the power (and straying into disability) the invalidity of Y’s ruling on the case before it that ignores the binding precedent of X.
In this way, Arriagada is able to offer “a structural reconstruction” of the “rule model” of binding precedent. One that departs from an account in terms of regulative norms and provides proper recognition to the constitutive norms (or power-conferring rules) involved (P. 42.) This is a major achievement, which should stimulate further work on the nature of precedent. She admits that the present work deals exclusively with binding precedents and does not address non-binding precedents, nor the practices of distinguishing and overruling precedents (P. 30.) Neither is she concerned with the positions of other bodies who may have a role in controlling the exercise of precedent, employing “oversight powers” (Pp. 35, 38, 40, 42.) Nevertheless, an important implication of the work undertaken here is that these related subjects may well benefit from a theoretical approach that is open to the fuller resources offered by Hohfeld’s analytical scheme–specifically, his analysis of legal powers.
Mar 21, 2024 Felipe Jiménez
Argentina has a long tradition of excellent legal philosophers, including Carlos S. Nino, Carlos Alchourrón, and Eugenio Bulygin. Pablo Rapetti is part of a younger generation of Argentine legal philosophers that is continuing this rich tradition. This is one of his first scholarly works available in English.
In this paper, Rapetti confronts Ronald Dworkin’s Anti-Archimedeanism and its application to general jurisprudence. As Rapetti explains, Dworkin’s Anti-Archimedeanism is a rejection of the distinction between first-order normative language and second-order, neutral meta-languages we could use to explore the first-order language theoretically. In simple terms, it’s impossible to go “meta:” any debate about ethics, is a first-order moral debate. All metaethical theories occupy the same space as first-order moral theories.
Rapetti does a wonderful job setting out the (strong) Anti-Archimedean position in metaethics, as the conjunction of three claims: (i) ethical reasoning is autonomous and first-order ethical claims can only be justified by reference to other first-order moral claims; (ii) the aim of metaethical theories is vindicating or debunking first-order ethical thought on the basis of purely metaethical considerations; and (iii) every metaethical statement can be translated into a (or a series of) first-order ethical statement(s). The implication of Anti-Archimedeanism would be that there is no real distinction between first-order ethical claims (such as murder is wrong) and second-order metaethical claims (such as moral statements express non-cognitive attitudes).
Rapetti’s paper also offers reasons why we ought to reject Anti-Archimedeanism. As he argues, one particular problem is that Anti-Archimedeanism has no limiting principle (or, at least, no limiting principle proposed by Dworkin): it threatens to transform every philosophical problem into a first-order moral or ethical problem. If there’s no “meta” level above first-order ethical claims, then presumably there’s no neutral, “meta” level for any questions in practical philosophy. Moreover, since metaethics is partly about what there is, it is partly about metaphysics. Does this mean all philosophical problems are ultimately moral problems? Where is the limit? Moreover, as Rapetti persuasively argues, it is not the case that all metaethical statements can be translated into first-order ethical statements. We can have metaethical conversations—as philosophers who focus on metaethics commonly do—without any interest on resolving, or committing ourselves to answers to, first-order moral issues.
What does this have to do with law? The connection is straightforward because, for Dworkin, what’s true of ethics/metaethics is true of legal practice and jurisprudence. The idea that there’s a connection between metaethics and jurisprudence is not implausible. As Plunkett and Shapiro have argued recently, just like metaethics is a form of metanormative inquiry about ethics, general jurisprudence is a form of metanormative inquiry about law.
Dworkin’s Anti-Archimedean position, in the case of law, is that there are no second-order conceptual theses in jurisprudence that cannot be translated into (and that do not ultimately aim to support or debunk) first-order legal judgments. There is no escape from the first-order domain—in ethics and in law. Indeed, and as Rapetti aptly argues, there is an almost perfect identity between Dworkin’s Anti-Archimedeanism in ethics and his views about first-order legal disputes and their implications against legal positivism. For Dworkin, just like metaethics dissolves into first-order ethics, general jurisprudence dissolves into first-order legal argument.
This is precisely where Dworkin’s well-known argument from theoretical disagreement comes in. Theoretical disagreements are disagreements about the content of the law that are not empirical (e.g., about whether the legislature enacted text X or whether agency Y enacted a regulation) or merely evaluative (e.g., about whether the law is good or bad from an evaluative standpoint). These theoretical disagreements are disagreements about the content of the law (i.e., disagreements about what the law is) that are not reducible to disagreement about empirical facts. But legal positivism, according to Dworkin, can only treat these disagreements as confused or hypocritical (after all, on at least a plausible interpretation, the aim of legal positivism is providing an explanation of legal phenomena in terms of social facts). And, as Dworkin argued, we seem to be surrounded by such fundamental legal disagreements, at least in the context of appellate litigation: disagreements that do not turn on disagreements about the facts that ground legal validity according to the rule of recognition or on purely evaluative considerations about what the law should be, but on discrepant normative views about what the law is. Legal positivism, in Dworkin’s view, cannot explain this aspect of legal argument at face value.
Hart’s internal point of view provides a positivist strategy that might seem to dissolve this concern. According to Hart, within legal systems, legal officials and other participants in social life treat legal rules (which, in his view, are exclusively grounded in social facts) as binding normative standards. That explains why, from the inside, legal discourse is normative even though, as a matter of metaphysics, it is ultimately grounded in social facts alone. We need to distinguish between the first-order level of internal legal statements and the second-order level of jurisprudence and its external statements.
Here’s the crux of the issue, according to Rapetti: Dworkin fails to pay enough attention to the distinction between these two types of statements, because of his Anti-Archimedeanism. The whole point of Hart’s distinction was to suggest that one could, as a theorist explaining legal phenomena, account for (explain, make sense of, understand, etc.) internal legal statements by judges and lawyers adopting an internal point of view and therefore for the fact that legal disputes are normative without being empirical or evaluative, without oneself adopting that point of view.
The Anti-Archimedean cannot accept Hart’s middle-ground, because, as Dworkin argues, there is no possibility for non-normative second-order discourse about first-order normative discourse. But these, as Rapetti argues, are handcuffs of Dworkin’s own making. The way out of the problem raised by theorical disagreements is a rejection of Anti-Archimedeanism. Without the latter, Dworkin’s objection to legal positivism on the basis of the former loses its force.
Cite as: Felipe Jiménez,
In Defense of Archimedes, JOTWELL
(March 21, 2024) (reviewing Pablo A. Rapetti,
A Critique of Strong Anti-Archimedeanism: Metaethics, Conceptual Jurisprudence, and Legal Disagreements, 200
Synthese 111 (2022)),
https://juris.jotwell.com/in-defense-of-archimedes/.
Feb 29, 2024 Gilberto Morbach
“What could there be but amiability between two nice Jewish boys from Providence, Rhode Island?”
Those were the words of Stanley Fish during one of Ronald Dworkin’s seminars at NYU, to which he was invited by a fierce intellectual opponent: Dworkin himself. The episode is recalled by Professor Fish in an interview conducted by Thomas Bustamante and Margaret Martin, editors of New Essays on the Fish-Dworkin Debate—an excellent collection of essays dedicated to the (still neglected) exchange between Dworkin and Fish. When I say ‘neglected’, I say so because this book, recently published by Hart Publishing, is the first volume entirely dedicated to this debate that still carries important implications in contemporary jurisprudence (in contemporary philosophy tout court, I would say), from matters that range from interpretation and objectivity to the very enterprise of theorising itself. The interview—impressively illuminating and fun to read, one should add—finishes the volume and is preceded by 19 chapters divided in four parts.
Part One is dedicated to “Legal Theory and its Critical Role”, the relationship between theory and practice. Part Two, “Interpretation and Critical Constraints”, focuses on the on the discussion of whether one can rely on an internal structure to determine which (and whether) interpretations of a given practice can be classified (if they can be classified like this at all) as right and wrong. Part Three, “Pragmatism and Interpretive Communities”, is dedicated to the very concepts of ‘interpretive communities’ and ‘community of principle’ and to the commitment of both Fish and Dworkin to philosophical pragmatism (perhaps in different versions of it), revealing a potential convergence of views between the authors. Finally, Part Four discusses some of the implications and main takeaways of the Fish–Dworkin exchange.
Dworkin and Fish had many differences in their views, in their theoretical positions, even in their style (though they did share the sharpness, the temperature that made for a certainly heated exchange, in which “you’re still wrong” and “please don’t talk about this anymore” are business as usual). Dworkin always stood in praise of theory, Fish argued that there can be no interaction between a practice and a theory thereof. Dworkin believed theories can constrain our actions, Fish firmly denied it. However, they did have a fair share of convergences as well, particularly in what could be seen as a common suspicion, even rejection, of grand metaphysical claims. They also believed that we can only understand (and criticise) our practices from within, not from a fixed, artificial point of view from outside or nowhere. Besides, as Bustamante and Martin say in their Introduction—and the collection of essays that follow shows that they are right—“both authors eschew the common moves found in natural law jurisprudence wherein theorists attempt either to locate authority in the divine or to derive the normative force of law from a basic set of transcendental values” (P. 1.) This, I believe, helps us to show why this debate still matters. It is not only because of Stanley Fish’s position as a literary critic that his debate with Dworkin transcends legal theory. It is because, forty years on, we still discuss and engage in different attempts to better understand our practices. When we come to see, and we do so with Dworkin and Fish, that we can only do it from within, we see that the whole enterprise is one of better understanding ourselves.
In his chapter, Larry Alexander says that we can take away “very little” from the Fish–Dworkin debate. His own essay is one of the reasons why I think one could disagree. I have nineteen other reasons, twenty if we include the volume’s introduction (as I believe we should, given its clarity and comprehensiveness). The different views in this volume, I believe, bring about a new chapter in an exchange that is still very much alive, and that we can take away very much from.
One can doubt whether there was much amiability—but as this brilliant and rather timely collection of essays show, while there were many disagreements indeed, there were also many similarities between those two nice Jewish boys from Providence, Rhode Island. Right or wrong, still engaging after all these years.
Jan 29, 2024 Nina Varsava
Scott Hershovitz’s Law is a Moral Practice is an important and compelling contribution to general jurisprudence. It is also a delight to read, written in Hershovitz’s characteristically breezy and playful style, with anecdotes and examples throughout that illuminate and animate his picture of law in memorable ways. Readers will likely appreciate Hershovitz’s light argumentative touch. He encourages us to try out seeing law his way rather than insisting that law must be seen this way or that it is the only reasonable or useful way to see law.
On the moral practice picture—which is what Hershovitz invites us to call the theory of law he sets out in Law is a Moral Practice—law and morality are not separate normative systems. The rights and duties debated in court are moral rights and duties. It is thus the province of courts to answer moral questions. (P. 183.) And legal reasoning is a special kind of moral reasoning.
If legal reasoning is a special kind of moral reasoning, what makes it special? The fact that it is sensitive to the actions of legal institutions and officials. It is the special responsibility of judges to assess how legal materials—including constitutions, statutes, and precedents—affect enforceable rights and duties, and to decide legal disputes accordingly.
This sensitivity to the actions of legal institutions and officials explains why legal rights and duties are not necessarily—indeed, often are not—just as they morally ought to be. Judges might have a moral obligation to enforce a given statute even if things would have been better, morally speaking, had the statute never been issued in the first place. As Hershovitz observes, this dissonance shouldn’t be too mysterious, as outside the legal context we are familiar with moral obligations that it would be morally better if we did not have—for example, obligations created by promises can be like this. Like promises, “legal practices—like legislation and adjudication—are the sorts of activities that might, in the right circumstances, rearrange people’s moral relationships” (P. 28). Sometimes for the worse. But sometimes for the better.
Hershovitz’s picture of law is an attractive one. As he says, “so much about law snaps into focus if we see it as a moral practice” (P. 18). For one, the picture would explain why legal reasoning often looks like moral reasoning, even when the applicable law is settled (Pp. 10–12). This is a point that Ronald Dworkin also made forcefully, and Hershovitz’s view resembles Dworkin’s in many respects as well as other non-positivist accounts of law that embrace the “one-system view,” which takes law to be part of morality (including, notably, Mark Greenberg’s Moral Impact Theory).
While I have many favorable impressions, the book did leave me with some questions and reservations. Hershovitz acknowledges that the word “law” carries a variety of meanings, and he wants to make space for these various uses—law can mean different things in different contexts and depending on our interests and purposes, and there’s no problem with that. “[T]here are many ways we might draw the boundaries of [the category law],” he writes, “depending on what we want to emphasize” (P. 27). But what he thinks we should emphasize, at least when we’re doing jurisprudence, is the authoritative nature of law, and the way in which legal norms are those that we have real reason to follow and that courts are responsible for enforcing (Pp. 82–86). Why emphasize this sense of law? Because “[i]t matters which of your rights you can enforce in court . . . and which you can’t. The other distinctions have their uses, but they are lawyers’ distinctions, far removed from the concerns of most laypeople, at least most of the time” (P. 40). And Hershovitz does not want to identify with any of the traditional camps of jurisprudence (positivism, natural law, etc.) because he does not find that kind of classification felicitous for his purposes. (P. 72.) But I think it’s clear that, for Hershovitz, law in the most important sense has real authority over us; norms that are legal are genuinely binding. After all, Hershovitz wants us to see “legal rights and responsibilities” as “moral rights and responsibilities,” and “moral assessment as internal to legal judgment”—that is a central aim of the book. (P. 173.) When “lawyers in court contest the rights and obligations that litigants have,” he says, they do not do so “according to a self-contained normative system, separate from morality”: “the rights claimed in courts are claimed as genuine—they are meant to move the court to action.” (Pp. 10, 192.)
The idea that legal norms are authoritative—truly binding—on judges and on the rest of us is important for Hershovitz because it is related to the value of seeing law his way. “Does it matter whether we see law as a moral practice?” he asks at one point. Unsurprisingly, he thinks it does. The main reason he gives is that viewing law this way “helps us appreciate the character of legal conflicts” as “moral conflicts—conflicts about who owes what to whom” (P. 175). That is a significant and appealing upshot. The moral practice picture provides a key to approaching legal questions. It also helps explain how judges might have a duty to apply legal materials like past judicial decisions even when those materials are morally problematic, as they often are, and why we might have a duty to follow legal norms even when they are morally defective. Further, Hershovitz emphasizes that lawyers are making moral arguments, ultimately. (P. 15.) To the extent that lawyers recognize this reality, they might approach their role differently, in some sense more seriously, and that would be a good thing. (P. 167.)
Although Hershovitz often makes clear and bold statements about the relationship between law and morality, sometimes I felt that it was hard to pin down exactly his view of that relationship. For example, he points out that “[a] person can have a right that she ought not to have, or lack a right that she ought to have,” and I am with him there. But he then concludes that there is thus “no guarantee that enforcing a person’s rights will be a way of doing justice” (P. 68). This conclusion seems in tension with his theory and makes me wonder if I have misunderstood it.
I take Hershovitz’s view to entail that enforcing a person’s legal rights will necessarily be a way of doing justice (as long as the enforcer gets the legal rights correct) because those are the rights the person really has (and whether or not she ought to have them is beside the point); she does have them and they are real, moral (also legal) rights. And so enforcing them is a way of doing justice—in fact, it is the way that courts do, and ought to do, justice—even if it would be better if things were arranged differently such that she did not have those rights.
Hershovitz does qualify, in an endnote, that “[g]iving people what they are owed is a kind of justice, but it does not exhaust the field” (P. 209 n.5). Okay, but so much of what Hershovitz says suggests that on his view legal rights are a kind of right that we are entitled to have courts enforce—not just legally entitled, but morally entitled—and courts do justice to the extent that they enforce those rights. And they do justice of, as Hershovitz would say, “the ordinary moral sort”: whether one has a right to have the right she claims enforced in court “is a moral question”—“it is a question about who owes what to whom” (Pp. 10, 156). In other words, does the court owe it to the claimant to enforce her demands against her opponent? That question is a complex moral one, which requires the court to determine whether, in its official role and capacity as a court, it is obligated to grant the claimant’s request that her opponent give her what she demands. When courts enforce legal rights and duties, then, they are delivering just the kind of justice that they ought to be delivering. And people are getting what they are owed.
Hershovitz discusses the white supremacist march in Charlottesville as an example, explaining how the city, in an effort to prevent violence, ordered that the march relocate away from the originally planned site. The organizers challenged the order in court, on free speech grounds. The court sided with the organizers, determining that they had the free speech right they claimed and had a right to its judicial enforcement. “[R]ight or not,” says Hershovitz, “the court was answering the moral question put to it, rather than trying to decide whether, all things considered, reinstating the permit [which allowed the white supremacists to gather in their desired location] promoted justice” (P. 69). But Hershovitz’s account of law seems to me to point to a different conclusion, which is that the court’s responsibility was to decide whether ordering the city to reinstate the permit would, all things—and notably, legal history and practices, and the court’s role as a particular type of governmental official—considered, promote justice.
If the court was correct and justice did require it to order that the permit be reinstated, that might well be an unfortunate fact, grounded in unfortunate past legal decisions. But on Hershovitz’s view (or my understanding of it at least), the court made a determination of what rights the marchers had a moral right for the court to recognize, all things considered, where an important subset of those things consisted of legal materials that the court did not have the authority to disregard or change. This means that doing justice might look different than it would look in ideal circumstances, where legal history and materials would have different content than they in fact have, but it does not mean that courts aren’t addressing all-things-considered moral questions. The legal rights we have are those rights that we are morally entitled to have courts enforce. That’s Hershovitz’s view. And if it’s right, then the role of courts is to decide whether, all things considered, the claimants are morally entitled to the judicial enforcement of the rights they claim.
While I’m quite sympathetic to Hershovitz’s general picture of law, then, at times it seemed that he held back or qualified his claims where it might be most fascinating and challenging to press them further. In any event, thinking about law alongside Hershovitz is a pleasure, and I did read Law is a Moral Practice in one sitting, in compliance with the Rules of the Book, although sadly not while eating popcorn. (P. 74.) The book will undoubtedly spark various interesting developments, extensions, and challenges, and will have a lasting, positive impact on general jurisprudence.
Dec 19, 2023 Sean Coyle
This lively and concise article surveys aspects of the philosophy of corrective (classically, commutative) justice in the domain of the Law of Torts, specifically the law of negligence. It begins by outlining the central problem: that the lawyer’s concepts of equality, principle and right do not seem relatable to the moral concepts most readily attributive to citizens, those of virtue, value and good. In a beautiful analytical movement, the author demonstrates that such divisions are merely apparent, not real. In doing so, the article connects this theme to that of moral luck: the idea that we may not, in fact, be in control of the consequences of our action such, that it is, at least, problematic to ascribe legal responsibility to our negligent actions.
The idea is not new: it reaches back certainly to Aristotle’s treatment of virtue in the Nicomachean Ethics, where he observes that virtue is insufficient for happiness, for a person needs a degree of good fortune to ensure that their efforts are rewarded, and a cursed though virtuous person cannot be described as happy. This relates to the multiple possibilities within which each person moves, sometimes fortunately, sometimes not. The law of negligence represents an intervention into these situations, based not on the form of the will of the acting person, but on external freedom (borrowing terms from Kant). A few sentences are worth quoting in detail:
For corrective justice theorists, Kant’s idea of external freedom provides the normative foundation for the losses and gains that are the outcome of human interaction, and normatively grounds the restoration of these losses and gains. Because your movements and actions have undermined my choices, because in the exercise of your external freedom you have undermined mine, it is justifiable for the judge to restore this inequality and exercise coercion via the law. In other words, the illegitimate use of your force on me justifies law’s force on you. (P. 107.)
The law of negligence thus obliterates the problem of moral luck by suppressing it: it considers external freedom to be the only relevant issue facing the law, to the exclusion of the question of will. The law is essentially retrospective as it looks backward to what has already happened.
Yet the moral psychology of the citizen is to look forward, to consider what it would be like for their life to go well, and for the lives of others also to go well. (This claim is founded upon extensive research and learning, which unfortunately the present article does not expound.) The relevant ground of thinking is that one seeks to avoid doing injustice (harm?) to oneself and to others in the first place. Theorists of corrective justice present two arguments against the compatibility of negligence law with the position just stated: (1) questions about “what I should do” are incompatible with the basic logic of tort law, which is concerned not with willing in a vacuum but where one person’s willed actions come into contact/conflict with those of others; (2) law and justice are a matter of rights and duties, not prudential practical reasoning.
First, the internal logic thesis. The author states that “[l]ike the values of love or friendship, the values of tort law have an internal logic, but this internal logic is expansive and includes underlying moral and ethical values as learned and grasped in experience…” (P. 108.) Similarly, friendship and love have an internal logic (so admirably described by John Finnis) but are not limited to this logic, for it is also informed by basic scientific facts about time and materials, etc. Even the forward-thinking aspect of practical reason (the question “what should I do?”) inhabits a realm of rules, rights and obligations, and is not rigidly separate from such concepts. Likewise, judges may legitimately give consideration to insights arising from the citizen’s perspective, that of how to live well and how others may live well. The author then states that “The facts and circumstances of the case provide a concrete particularity to the value of physical integrity. The aim of the judges’ reasoning is to determine the specific content of the plaintiff’s values, but she also has a forward-looking perspective…” (P. 109.) I, for one, am unsure whether such an aim can be attributed to judges’ reasoning, and it is not to my mind adequately supported by the subsequent extract from Donoghue v. Stevenson. But even if this is correct, the author’s main point is plausible, that judges are in the business of considering reasoning from the citizen’s perspective: something intrinsically connected to the question of reasonableness.
Now the separation thesis. The argument here is somewhat intricate but it reduces at least in part to one familiar to readers of Finnis, that the catalogue of wrongs to be found in Aquinas is implicitly a litany of rights and (per Wesley Hohfeld’s analysis) corresponding duties. Thus, “[A]ttributions of responsibility aim not only to correct the wrong, but to engage the citizen to recognize potential wrongful conduct and avoid it. Blameworthy judgements in ethics and liability judgements in law are not only a reaction to and protest against the injurer’s actions or the plaintiff’s actions, but a warning for future agents and citizens on how to engage with activities which inevitably, and due to the kind of creatures we are, involve values.” (P. 112.)
In the following main section, the article applies these insights to the domain of negligence law: “I argue that the law of negligence presents citizens with proleptic thoughts on values qua descriptions and re-descriptions to be engaged with, i.e., unique ways of realizing the values of security and physical integrity in the particular circumstances of specific actions.” (P. 112.) Thus, in Donoghue, we have manufacturers’ processes and practices revised in the light of the physical integrity of consumers. Yet a different question might be: how can (or should) a society go about proleptically setting out licit and illicit actions except through the concepts of right and duty? For if each person can be said to possess liberties, not only against the state but also, crucially, against their neighbours, this must be achieved on the basis of reasonably precise boundary lines, and not mere act-descriptions. For the latter, however precisely they are intended, cannot supply the requisite certainty that one’s neighbour may not object to one’s activities (without establishing a right that they should cease) and involve them in expensive and stressful litigation.
In a long penultimate section, these questions are brought back to the idea of moral luck. Negligence law does not consist solely in a rights-based system of juristic thought: we are asked to imagine two drivers, both of whom have a lapse in attention, but only one of whom resultantly collides with and harms a pedestrian. The author points out that if negligence law mirrored the rights-focused structures of contract law, the claimant (if unharmed) would be able to sue the driver for nominal damages. But this is not the case. Rather, the structure of negligence law is proleptic, engaged with questions of how a reasonable person would form their character. While the author successfully makes clear this second aspect of law (and a quotation from the Nicomachean Ethics makes clear that the view was also Aristotle’s), more could be said about how this development of thought successfully solves the problem of moral luck. It may well be that the author intends just such an extension of thought in a later essay.
Finally, the essay briefly considers the question of civil maturity. The following two sentences are illuminating: “I accept [Bernard] Williams’s point that we need a psychologically realistic account of ethical and legal responsibility. I have shown that the conception of deliberation needs to be psychologically realistic.” (P. 118.) This is perhaps the most important question facing the author’s analysis. For the overwhelming majority of citizens carry on the task of practical reasoning (deliberating about action) in ways, more or less prudential in the narrow, Hobbesian sense, almost entirely independent of legal concepts, forms and distinctions, and in ways that are by no means as sophisticated in relation to ethics that the model presupposes. This does not of course mean that most people are starkly irrational, but it does mean that some account of ordinary reasoners, whom Aristotle all but dismisses as “the masses” who “desire pleasure”, is required and a sense of how the gap is to be spanned between the ordinary person and the student of ethics. Perhaps the author is correct, that (as Aristotle also says) the answer lies with the educative function of the law.
Cite as: Sean Coyle,
Negligence and Civil Maturity, JOTWELL
(December 19, 2023) (reviewing Veronica Rodriguez-Blanco,
Revising the Puzzle of Negligence: Transforming the Citizen Towards Civil Maturity, 68
Am. J. Jur. 105 (2023)),
https://juris.jotwell.com/negligence-and-civil-maturity/.
Nov 16, 2023 Brian Bix
Andrew Halpin,
The Systematization of Legal Norms: A Response to Navarro and Rodríguez,
in Jurisprudence in the Mirror: The Civil Law World Meets the Common Law World (Luka Burazin, Giorgio Pino & Kenneth Einar Himma, eds., forthcoming), available at
SSRN (Feb. 15, 2022).
A forthcoming collection, Jurisprudence in the Mirror, displays similarities and differences in both practice and theory across the divide between civil law legal systems (e.g., those of Continental Europe and Central and South America) and common law legal systems (like those of U.S. and the UK). In the book, each chapter offers civil law scholars discussing a single topic of legal theory or legal practice (e.g., legal validity, sources of law, and legal interpretation, and legal reasoning) followed by a commentary on the chapter by common law scholars. In The Systematization of Legal Norms: A Response to Navarro and Rodríguez, which will appear in Jurisprudence in the Mirror, Andrew Halpin represents the common law world, and is commenting on civil law scholars, Pablo Navarro and Jorge Rodríguez, who had as their topic, deontic logic.
By way of background, deontic logic, the logic of norms (including legal norms), is an oft-discussed topic in civil law countries, but one that has been given relatively little attention in common law countries. There are well-known complications to the project of deontic logic: e.g., norms themselves (e.g., “do not park here”) do not seem to be the sort of things that can be true or false, in which case, how is a logic of norms possible? One standard response–a response adopted by Navarro and Rodriguez (P. 7)–is to move from norms to norm propositions (e.g., “the law states: ‘do not park here’”), where such propositions do seem subject to characterization as true or false. Halpin’s argument in this piece, however, is not focused on the abstract level of whether or how logic is possible about normative matters, but rather on a more concrete level, regarding Navarro and Rodriguez’s effort to show that deontic logic is useful in understanding and developing the law (in either civil law or common law legal systems).
Halpin’s critique focuses on “the apparent space between the law as found in authoritative norms and the judgment that needs to be made to dispose of a particular case” (P. 1). Theorists of common law reasoning often raise this problem when discussing the operation of precedent, but it is also an important aspect of statutory interpretation. The authoritative text that count (at any given time) as “law” is a smaller set of resources than what courts refer to in resolving disputes; additionally, in resolving disputes, the courts sometimes alter the legal rules. This leads to a well-known problem: if courts are not bound by (limited to) existing authoritative sources, but have the power both to go beyond and also to modify the rules (adding exceptions, etc.), then in what sense are the authoritative sources even authoritative (“binding”)?
Navarro and Rodriguez respond to the problem with a picture of norms that are part of a system, and the applicable norms regulate the defeasibility of existing legal rules: when a court should (and when it should not) modify a rule, perhaps by adding an exception, to resolve the dispute before it. As Halpin summarizes the project, Navarro and Rodriguez’s “enterprise [is] to produce a logical systematization of legal norms.” (P. 7.) More specifically, Navarro and Rodriguze provide an analysis involving “the recognition of a general norm and the recognition of another norm providing an exception, in order to derive the specific norm providing an obligation or permission in a particular case, as a process of deduction.” (P. 5.)
Using examples from standard types of common law decisions (including well-known cases, like Riggs v. Palmer and Donoghue v. Stevenson), Halpin illustrates how the courts in practice do not so much deduce answers from the legal materials as work with the legal materials to develop the law, combining norms, taking into account their relative weight, often with particular attention to the application to the facts before the court, rather than any sort of more straightforward deduction or simple calculation of exceptions.
Halpin is, in the end, suspicious of the value of deontic logic to lawyers and judges – in either civil law or common law systems. “Refining a logic of norm-propositions in order to attain consistency and completeness for a particular system of norms is, on this view, a misguided project … [I]f the system were already perfect we wouldn’t need the logic; if the system were imperfect, the logic wouldn’t help us.” (P. 11.)
Cite as: Brian Bix,
A Challenge to Deontic Logic, JOTWELL
(November 16, 2023) (reviewing Andrew Halpin,
The Systematization of Legal Norms: A Response to Navarro and Rodríguez,
in Jurisprudence in the Mirror: The Civil Law World Meets the Common Law World (Luka Burazin, Giorgio Pino & Kenneth Einar Himma, eds., forthcoming), available at SSRN (Feb. 15, 2022)),
https://juris.jotwell.com/a-challenge-to-deontic-logic/.
Oct 19, 2023 Paulo Barrozo
Samuel Moyn,
Reconstructing Critical Legal Studies, Yale L. Sch., Pub. L. Rsch. Paper (Aug. 4, 2023), available at
SSRN.
The CLS Movement thematized domination, contradiction, instability, interpretation, distribution, personal empowerment, interpersonal connections, and the claims of reason. Attitudinally, it had a 70s contrarian and (American) left temperament. Like all movements, networking rather than consistency was its core. Aware of the centrality of legal discourse and actors to social arrangements and outcomes, the movement sought transformative impacts beyond the privileged walls of law schools. CLS lasted as much as any movement can expect to, and it had important (especially pedagogical and curricular) successes.
That was the movement. What about CLS Theory? In Reconstructing Critical Legal Studies, Samuel Moyn offers a fast-paced and yet penetrating inventory of theoretical problems and approaches in order to recommend the “social theory of law” variant of CLS theory.
Of course, a number of writings on CLS focus on the movement while others, like Moyn’s, focus on the theory. For those who study the movement, Princeton University’s Critical Legal Studies Records: 1977-1995 is a new resource, as well as some of the material generated in the 2020 conference that launched that special collection.
To fully credit Moyn’s theoretical intervention, consider two ideal-typical ways of relating to past theories. One is to center attention on collectives such as schools or movements as denser nodules in networks of theorists (see Randall Collins’ The Sociology of Philosophies for a comprehensive analysis of this kind of networking phenomenon). Examples of such schools and movements are many: ancient, medieval or modern natural law; glossators; sources or methods positivism; the historical school; idealism; jurisprudence of concepts; school of exegesis; jurisprudence of interests; sociological jurisprudence; realism(s); rationalism(s); CLS; CRT; feminism; TWAIL; LPE, and so on. Another way of relating to past theories is by identifying and isolating works that help move knowledge further regardless of where they are placed in terms of schools or movements. Moyn’s essay splits the difference between these ideal types: it focuses on works but approaches them as a project of school reconstruction. The effort seems clear: transition CLS from movement to school of thought.
I suspect that the way anyone relates to past theory is less a matter of choice in a vacuum and more akin to the experience of surrendering—sometimes later than sooner—to one’s intellectual dispositions and loyalties. A case in point, I read Moyn’s previous work as historical, with theoretical insights. With this essay, I think he surrenders to theory, with historical insights.
Moyn’s essay is proselytist. With characteristic insight and erudition, he proposes that (all) scholars interested in the “radical” understanding of law elect a version of CLS theory as their framework.
Moyn looked at three early CLS theory variants—Morton Horwitz’s, Duncan Kennedy’s, and Roberto Unger’s—in light of two problematics: the level of determinacy of law by environmental social forces acting upon it and the level of determinacy of interpretation of formal sources of law.
Moyn’s argument is not only that Unger’s social theory of law is superior in addressing those problematics, but also that something like the path Unger charted between causal and interpretative necessity and contingency is unavoidable if jurisprudence is to succeed while being “radical,” explaining that “a radical theory would emphasize that legal orders and rules matter because they institute, legitimate, and reproduce domination and oppression.” (P. 2.)
Indeed, if law is to be able to do all those bad things, it has to be sufficiently functionally and interpretatively determinate. But sufficient determination need not, as a matter of fact about law, be complete determinacy, thus leaving room for resistance and freedom. The takeaway is that “it is simply not necessary to choose between a vision of law emphasizing prevalent determination and determinacy, on the one hand, and one making room for residual flexibility and plurality, on the other.” (P. 2.) Thus, oppression cum residual freedom.
The essay then surveys LPE, Feminism, CRT, and Marxism from the viewpoint of the explanatory burdens legal theory carries and measured against Unger’s social theory of law. They all come short, although in varying manners and degrees. And to the extent that they do not, it is because they already operate within a version of Unger’s midpath.
There is much more in Moyn’s essay as, for example, the important job he envisions for a theory of ideology. And there are points that I think Moyn doesn’t get right or quite right. For example, I think that he overestimates any gain the adjective “radical” offers beyond progress in knowledge about “why the world is the way it is.” (P. 25.) For knowledge, nothing hinges on whether Unger’s greatest book, Law in Modern Society, is labeled radical.
But to my mind the most important contribution of Moyn’s essay is the rejection of the intellectual minimalism of legal academia. “There is no avoiding theory forever,” he writes, adding (in reference to LPE but generalizable) the critique of “autumnal quietism after the ‘summer of theory,’ an aversion to abstract and systematic intellectualism […].” (P. 25.)
There are always ambitious theoretical works coming out legal academia. What I think Moyn correctly challenges is the view that jurists and their students can get away with not studying them, seeking cover under a chronic conflation of clarity with simplicity. Perhaps the continuous mixing of CLS movement (that in time expired) and theory (that stands or falls on movement-independent merit) helps explain why the cover is working for so long in the American academic context?
I end with this thought. The closer to the ground jurists fly, the more law appears as a messy, contingent, and unstable product of interest-guided legislation and class-conditioned adjudication. Jurists flying in mid-altitude, tend to see law as an amorphous blob that is unyielding to systematic theorization, thus only susceptible to localized speculation. Those are remediable altitude problems. For the higher jurists fly, the more law is revealed as a highly complex and formalized phenomenon fully comprehensible only through grand, systematizing theorization. Moyn’s essay is a fine reminder of this truth.
Cite as: Paulo Barrozo,
What Critical Theory?, JOTWELL
(October 19, 2023) (reviewing Samuel Moyn,
Reconstructing Critical Legal Studies, Yale L. Sch., Pub. L. Rsch. Paper (Aug. 4, 2023), available at SSRN),
https://juris.jotwell.com/what-critical-theory/.
Sep 21, 2023 Maris Köpcke
Some recent debates in general jurisprudence concern so-called moral impact theories of law, chiefly in the version proposed by Mark Greenberg. Greenberg’s theory has both staunch supporters and fierce critics. There are also a good number of scholars who look on these debates with perplexity and some dismay. Greenberg provocatively portrays law as the moral impact of institutional action. He presents his moral impact formula as the “legally correct” way to figure out the law’s content on the part of practitioners. His proposal has attracted some fine scholarship denouncing ambiguities within the account, and inconsistencies between the account and legal practice.
Watson’s piece takes these concerns a valuable step further. He argues that Greenberg’s theory distorts not only what practitioners count as law, but also how they reason to that effect. This is the kind of contribution from which one can learn, positively, about legal reasoning and practice, rather than just, negatively, where someone else goes wrong.
There are four aspects I wish to highlight about Watson’s contribution. Its first valuable aspect is that Watson spells out what he counts as a standard of success of the accounts under discussion. An account of what determines legal content, he says, “should be largely consistent with practitioners’ attitudes and behavior” (P. 71). It is useful that he spells this out because Greenberg himself is less than fully clear about whether his theory aims at consistency with legal practice. But whether the theory does, or should, is decisive to the kinds of considerations and arguments that can count against it. Watson would have done well to problematize and defend, rather than merely “assume” (P. 71), this standard of success, though it is helpful that he brings it in and appeals to it consistently.
The second valuable aspect is the first major critique that Watson addresses at Greenberg. In Watson’s words: “First, the theory is radically out of step with how lawyers and judges actually reason and argue about legal content: we do not observe practitioners reasoning or arguing about a moral impact in most cases” (Pp. 60-61).
Someone had to say it. Earlier criticisms of Greenberg’s theory had focused on problems in the account’s catch. They had focused on which legal duties, rights, powers, etc. Greenberg’s account misses, or on which duties, rights, powers, etc. the account counts as legal but legal practice doesn’t. They had focused, in short, on what Greenberg and legal practice count as legal content, but not on the way they go about discerning that content. As Watson puts it, “[i]f the [moral impact] theory is right, then practitioners are not merely mistaken about the legality of a few immoral norms, they are mistaken in how they practice law” (P. 73, emphasis original). Watson’s criticism is not simply negative. It is not simply a claim about what practitioners do not do (ie appeal to moral impact). Watson has some intriguing things to say about how practitioners do go about discerning the law. But the reader has to wait until the final part of the article; I refer to this below.
The third valuable aspect of Watson’s contribution is its second major critique of Greenberg: “Second, the theory cannot explain why practitioners agree on legal content as often as they do. If the theory were correct, much of what practitioners now agree upon would be open to reasonable dispute…” (P. 61).
Greenberg need not, indeed does not, deny that practitioners are in widespread agreement about legal propositions and some of their sources. But, on the moral impact theory, as Watson says, much of what they agree on is “open to reasonable dispute”. That is because, on Greenberg’s account, the law is the moral impact of institutional action. Moral impact assessment is an open-ended moral judgement. To be sure, such moral judgement might itself recommend – Greenberg sometimes notes – that certain decisions not be morally second-guessed. Moral impact assessment might itself tell against reopening what was settled and agreed upon, given (say) the moral need for certainty or fair warning. But even where that is so, moral judgement remains in the driver’s seat. Moral judgement – on Greenberg’s theory — is ultimately decisive, and can therefore, legally speaking, be brought back in at any time. As Watson points out, “[p]arties to a legal dispute have every incentive to disagree over legal content” (P. 75). It should therefore surprise Greenberg that they don’t so do more often. For, instead,
In practice, we observe pervasive agreement over most legal content. Consider how the vast majority of legal disputes are resolved: most never make it to court; of those that do, most settle; of those that proceed past discovery, many end in judgment as a matter of law; and of the few that are appealed, most are affirmed by unanimous panels. Think also of all the issues that parties to litigation rarely dispute (e.g., parties often take personal jurisdiction and venue for granted). Some issues are virtually never disputed (e.g., that a judge was properly appointed). Such pervasive agreement calls out for an explanation. (P. 74.)
This second critique is closely connected to the first one. It is perhaps more closely connected than Watson appreciates. The nature of the ultimate considerations to which practitioners appeal, in working out what the law is on some matter, is not a moral impact assessment but a baseline consensus. Of course, an incomplete and variable consensus. But a consensus nonetheless. A consensus about what? Not, primarily, about which duties, rights, powers, etc. make up the content of the law, but about the way to establish these. It is a consensus about fundamental methods of legal reasoning.
The fourth valuable aspect I wish to draw attention to feeds into the previous three. It emerges as Watson, in the final part of his article, sets out to “refin[e]” what both he and Greenberg call the “standard picture” (Pp. 76ff). Greenberg has coined the term “standard picture” to refer to what he takes to be an assumption or understanding underlying much philosophical and doctrinal thought about law. On the standard picture, as Greenberg portrays it, legislation – and law-making in general – is an instance of communication and shapes the law precisely in accord with its communicative content. Watson’s aim is to refine the standard picture by way of defending it – as his title suggests.
What is insightful about Watson’s refinement of the standard picture, in my view, goes to suggest that the standard picture must in fact be abandoned. Watson has some very reasonable remarks to make, for example, about how different legal sources or decisions “interact” with one another (Pp. 81-82). Legal rules on defences or inchoate liability, for example, qualify what would otherwise be the legal meaning of offence-creating provisions individually considered. It is the bread and butter of legal reasoning that different sources (legislative, judicial, constitutional…) must be read together to establish what the law is on some matter. Both Watson and Greenberg (and others) rightly favor talk of a text’s “contribution” to legal content. But Greenberg perhaps sees more clearly than Watson that such systemic dimension of legal reasoning tells against the plausibility of explaining law on the model of ordinary communication – which is an individual, not a multi-person, affair.
Watson’s elegant discussion of substantive canons of interpretation (Pp. 83ff), pace Watson, points in a similar direction. What are sometimes known as substantive canons of interpretation, such as the rule of lenity or the absurdity doctrine, are themselves legal provisions, deriving ultimately from some law-making conduct – what Watson calls “legal texts”. Watson is right that a statute’s legal meaning may be changed through the enactment of a further decision to that effect (he discusses Dale Smith’s example of the Human Rights Act 1998 altering the legal meaning of prior legislation). He is right that the question of how later decisions bear on an earlier decision’s legal meaning is a matter of law. But just that diachronic dimension of legal meaning sits uneasily with the logic of ordinary communication, whose meaning or content is fixed at the time of speaking in light of language conventions in force then.
Nor can the logic of ordinary communication, in and of itself, tell “the directive that the text communicates” from the rest of its communicative content (P. 85). Watson distinguishes between the directive in a legal text and everything else the text communicates in order to forestall the objection that the standard picture overgenerates law. For not everything in, say, the text of a statute or a judicial opinion goes to shape the law’s content. That is right – but Watson neglects to say that the way one gets from the marks on the paper (or the sounds in the room) to a directive or legal rule is a matter of law. Stare decisis is a legal doctrine; so are basic methods of statutory or contractual construction.
I think Watson debars himself from fully seizing the constructive potential of his critique by excluding from his discussion the question of “what makes something a legal text” to begin with (P. 67). He also calls this question “the question of legal validity” (P. 67). Watson is overly charitable in justifying Greenberg’s silence on that question. As the core of Watson’s critique insinuates, law regulates how certain facts make law, and in so doing it regulates which facts do – indeed which acts do. The latter question cannot be detached from the former. Standards of legal reasoning are a matter of law, which self-regulates in a manner that escapes the logic of ordinary communication. It is proper to deny that law is the moral impact of institutional action. But one must not for that reason embrace the other horn of a dilemma which is likewise of Greenberg’s making.
Cite as: Maris Köpcke,
On Moral Impact and Legal Practice, JOTWELL
(September 21, 2023) (reviewing Bill Watson,
In Defense of the Standard Picture: What the Standard Picture Explains That the Moral Impact Theory Cannot, 28
Legal Theory 59 (2022)),
https://juris.jotwell.com/on-moral-impact-and-legal-practice/.
