For philosophers of private law, a central puzzle is to explain how people’s voluntary acts of promising and contracting can produce genuine obligations. One popular class of answers points to personal autonomy—or the capacity, real or hypothetical, to bind one’s will through free acts of self-legislation. For those who believe in personal autonomy and its value, there may seem to be relatively few puzzles about promise or contract. Indeed, promise and contract might seem to offer easy cases.
These initial impressions can, however, be misleading. Whether promise and contract can be grounded in concern for personal autonomy will ultimately depend on what personal autonomy is, why it is valuable, and how promise and contract work. While autonomy-based accounts of promise and contract have proven enormously popular in the legal literature, this popularity has not always been matched by sufficiently close attention to these foundational questions. One of the things I appreciate most about Dori Kimel’s work in Personal Autonomy and Change of Mind in Promise and Contract is that he offers an uncommonly rich description of personal autonomy and its value. Rather than exaggerating the ease with which personal autonomy can be used to explain various details of promise and contract, Kimel faces the difficulties head on.
To suggest some difficulties, let me start with three puzzles. Each will figure in my later descriptions of Kimel’s work.
- Both promise and contract are cases of strict liability. They give rise to obligations of performance in the first instance, regardless of fault and hence regardless of the quality of the breaching party’s will. If, however, personal autonomy is a capacity to bind one’s will, then shouldn’t contractual and promissory obligations bind nothing more than the will? Why, then, do both seem to guarantee outcomes like performance in the first instance, regardless of fault?
- Both promise and contract give rise not only to primary obligations (to perform) but also to secondary obligations (to repair). In neither promise nor contract, however, do parties have complete discretion to choose the reparative obligations that attend to breaches. These reparative obligations can also be quite onerous: often they require performance, or at least a substitute, regardless of fault. Hence, something more than free choice—at least as popularly construed—is needed to explain the full ways the will is bound by promises and contracts.
- Both promises and contracts give the promisee (or other contracting party) the authority to demand or waive compliance. This authority is relatively unbridled: it can be exercised with a broad range of attitudes, from generosity to spite. Hence, this authority can be used in ways that undermine the personal autonomy of the original promisor (or contracting party) without any deep autonomy gain to the person with the authority.
These puzzles share a common theme. Each reveals a way in which promissory and contractual obligations may be too onerous to reflect a simple concern for personal autonomy.
But why assume that the concern is simple? Kimel counteracts this assumption by offering a much richer description of personal autonomy than is common in the legal literature. He acknowledges—as surely he must—that personal autonomy involves a capacity to author one’s moral universe through acts of self-legislation. He also agrees that promise and contract can provide useful mechanisms for this self-achievement. Still, Kimel locates one of the central values of personal autonomy in its capacity to help people shape the deep personal relationships and foundational life projects that require some commitment but can help produce meaningful lives. In his words, some exercises of personal autonomy—like those that shape “long-term projects, careers, and relationships”—concern “the meaningful, the lasting, the profound—those choices that can truly be said to be the ones through which a person’s life acquires the particular character and meaning that it has.” (P. 97.)
Self-imposed commitments can thus contribute greatly to the value of personal autonomy. There is, however, a further question as to just how onerous these commitments should be to serve this purpose. Self-authorship of a meaningful life would appear to require both some capacity to commit and some permission to change one’s mind. Kimel explains that:
without straying into the realm of conceiving the self as perpetually fragmented, we can sometimes observe that certain choices that a person has made at some point in the past are now, in quite a profound sense, “no longer hers”; or, indeed, consider a person who remains unwaveringly true to past commitments which no longer meaningfully relate to her present vision of how she ought to live as anything but a model of personal autonomy in action.
It will thus help to distinguish two different types of changes of mind that might be prohibited. On the one hand, there are those changes that would, if prohibited by the right moral and legal rules, enhance people’s capacity to self-author coherent and meaningful lives. On the other, there are those changes that would, if prohibited by overly onerous demands, undermine that very same capacity. As is so often the case, the trick will be to get the delicate balance right. Otherwise, promise and contract may sometimes be onerous enough to threaten personal autonomy on its best construal.
Of course, this discussion raises a difficult question as to where precisely to draw the line between these two types of changes of mind. Kimel does not offer any general answer to this question, but he does not need to for current purposes. It is enough to observe that one cannot simply assume, without reflection, that the line is best rendered at the extreme pole that permits no changes of mind. Selves grow and evolve—not just in fragmented and adventitious ways but also in coherent and meaningful ones. These facts greatly complicate questions of how self-authorship should be understood to relate to promises and contracts.
So let us return to the three puzzles mentioned at the start of this essay with the aid of this more nuanced description of personal autonomy. Some of these puzzles should seem less mysterious but others more so. For example, because personal autonomy’s value lies in part in its capacity to help people shape meaningful personal relationships, it should be less mysterious why promises and contracts create special relationships that give promisees (or other contracting parties) the authority to demand or waive compliance. At the same time, however, it should be more puzzling why this authority is relatively unbridled. If no norms govern this authority, then its exercise need not be sensitive to fault; to the norms that sustain special personal relationships (and help give personal autonomy its value); or to changes of mind that might enhance personal autonomy if allowed. Unbridled authority can thus threaten personal autonomy.
Rather than shrink from such difficulties, Kimel highlights them in beautifully precise fashion. He then goes on to suggest ways in which promise and contract might be less onerous than they initially appear. His goal is to try to square promise and contract with a concern for personal autonomy, properly construed.
For example, with respect to the first puzzle (concerning strict liability), Kimel points out that one can promise to try to perform rather than to perform. Hence, whether fault is relevant to promissory breach is itself a matter of choice by the promising party. The same is true with respect to contract. Hence, the semblance of strict liability in promise and contract may be overwrought. Turning to the second puzzle (concerning the non-voluntary and seemingly onerous nature of reparative obligations in promise and contract), Kimel points out that the content of reparative obligations in morality and law is rarely under parties’ complete subjective control. Although the content of these obligations might appear overly onerous in promise and contract, at least in contract this content has a relatively straightforward connection to the will: upon breach, one is typically required either to perform or to place the victim in as good a position as if the chosen performance had occurred. Kimel argues—persuasively enough—that this is most likely true of promise as well. These facts thus soften the objection.
Turning to the third puzzle (concerning the relatively unbridled discretion that promises and contracts give to other parties to demand or waive compliance), Kimel observes that promises are often embedded in thick personal relationships that express people’s personal autonomy. (I will turn to contracts in a moment.) These relationships are, in turn, typically governed by their own internal norms, which help give them—and hence many exercises of personal autonomy—their special value. These norms can generate independent claims on promisees’ conduct, which limit the ways that promisees should exercise their otherwise-unbridled promissory authority to demand or waive compliance. Because these norms help explain personal autonomy’s value and why commitment is consistent with freedom, these limitations will often be sensitive to considerations of fault and changes of mind that are autonomy-enhancing. To illustrate with an everyday example, while loving relationships might typically require commitment, love can also require that one set one’s partner free if circumstances change enough that neither party is capable of continued fulfillment in the relationship. These requirements are separate from any that arise from promise, and they are not necessarily inconsistent with the requirements of love.
But what, then, of contract? One of Kimel’s most important observations is that contracts typically arise without the thick relational background that makes many promises less threatening to personal autonomy. As he puts the point:
parties to contract are invited to relate to each other predominantly as parties to contract; the relational background, in this instance, is at best a contingency: much of the very point of the institution is the way in which it avails itself to those who are not already interlocked in meaningful personal relationships.
(P. 113.) Now, this is probably a bit of an overstatement, given the relational aspects of commercial arrangements that people like Stewart Macaulay have famously highlighted. Still, there is no doubt that an important disanalogy exists. Indeed, one of the special freedoms of the marketplace, in which most contracts are embedded, is the freedom to choose without having to justify one’s choices to other persons. Although this freedom may be less expansive in the context of deep personal relationships—in part because this freedom would interfere with the distinctive value of deep personal relationships—commercial relationships seem to me to preserve much more of this peculiar market freedom. Hence, the commercial norms that Macaulay describes often involve requirements like good faith and fair dealing, but rarely the full commitments of friendship or marriage.
Still, a clear implication of the discussion thus far is that contract law may well pose a bigger threat to personal autonomy than promise. Just as he did with promise, Kimel offers several suggestions to resolve these tensions. For reasons I will explain, I do not believe these suggestions are quite as strong. This is not necessarily a criticism of Kimel, however, because I get the sense that he too has less conviction about contract. Still, it will be useful to consider his suggestions.
As an initial matter, Kimel points out that contract law is less onerous than it could be in common law jurisdictions because it focuses on bilateral exchanges as opposed to unilateral gifts. This limitation allows for more changes of mind and hence might be viewed as autonomy preserving—at least insofar as “[i]t is plausible to think that entirely unreciprocated undertakings are particularly likely to become the object of a change of mind, or that the capacity to act on a change of mind of this sort merits particularly robust protection.” (P. 114.) But is the first assumption really so plausible when so many people change their minds every day about the value of ordinary products they have purchased? And even if the first assumption were plausible, considerations like these should at most ground a legal rule of thumb—not a rule as general as the common law consideration requirement (even given its well-known exceptions). With respect to the second assumption, unilateral promises can also further deep commitments and foster special personal relationships that might be impossible if one were to require a quid pro quo. Hence, it is not all that clear that changes of mind that arise after unilateral promises typically merit special protection. Given what autonomy is, I worry, finally, about the view that one can autonomously guarantee outcomes (like performance or its fair market value), as opposed to autonomously binding the will. Whereas relational norms may help cure this problem in relation to promise, it is less clear that they do so when it comes to contract.
Another suggestion that Kimel makes is that expectation damages, which are the standard remedy for contractual breach, give contracting parties the option to pay damages in lieu of performance. This fact might be understood to be autonomy enhancing because it preserves a greater ability to change one’s mind. Expectation damages thus soften other parties’ unbridled authority to demand performance. When changes of mind occur in market contexts, these changes are, moreover, less likely to undermine the deep personal relationships and commitments that give life meaning. Still, if personal autonomy really requires broader permission to change one’s mind in commercial contexts, then why not limit damages to reliance damages? If—as we are presently assuming—these changes of mind really are autonomy enhancing, then reliance damages would at least ensure that the other party suffers no harm. Does the other party really have an autonomy interest in more?
In my view, problems like these will remain so long as contract is viewed too closely on the model of promise. Given his extraordinarily rich descriptions of the role that personal autonomy can play in shaping meaningful lives, Kimel rightly suggests that promising should be understood as an art if is to capture this value. He then says that contract should be understood on the same model, but I am less sure. As I explain in Contract as Empowerment, 83 U. Chi. L. Rev. 759 (2016), I think contract may be closer to a power—and, in particular, a power to use promises to influence others’ actions in circumstances that reasonably require the legal enforceability of a promise for the influence to work. Especially among relative strangers in the modern marketplace (and hence in the absence of thick personal relationships that can generate sufficient trust), legal enforceability is sometimes needed for promissory commitments to influence others’ actions. This fact explains why legal (and not just moral) authority to demand compliance might be needed. See id. This explanation only applies, however, to promises that seek to induce a return promise or performance from another party—and, hence, to promises that are supported by consideration and involve bilateral exchange. See id. (also explaining why some promissory estoppel claims, which have hidden consideration, are therefore rightly treated as warranting expectation damages, whereas others should be limited to reliance damages).
Importantly, to influence action in this context, contracting parties often need to give their counterparties an assurance of more than just reliance damages in the event of non-performance. See id. Parties must typically provide a legal assurance of either performance or its fair market value—regardless of any fault for non-performance. See id. An assurance of this kind is also sufficient to influence action in most commercial settings. These facts explain why contract law, viewed as a power, focuses on expectation damages and not more. See id. If contract is a power that is specially adapted to the modern marketplace, it should therefore tend toward the strict liability we see; it should involve reparative obligations that focus on expectation damages and are not completely subject to parties’ control; and it should give other contracting parties relatively unbridled authority to demand or waive compliance—subject only to the relational duties of good faith and fair dealing.
So construed, contract law gives people a power, and hence a freedom, that they would not otherwise have in the marketplace. To the extent that contract law is empowering in this sense, its rules are ones that each could freely agree to be bound by on the condition that all others similarly agree. Hence, many otherwise puzzling features of contract can be understood to promote personal autonomy. But unlike promises—which may well preserve this connection by facilitating special relationships “that have the propensity to shape a life, make it into the kind of life that it is” (P. 99)—contracts rarely involve anything so momentous. The value of contractual empowerment seems to me lie elsewhere: in its giving ordinary people, and sometimes certain associations (like churches or corporations), the ability to meet their many varied needs and interests through the modern marketplace. Contract is not more important than promise because of this fact. It is not exactly less. It is just different.
Herein lies the key to understanding how contract law might be genuinely squared with concern for personal autonomy. Kimel is nevertheless surely right about another point. He warns that “[i]t cannot be assumed too casually that by facilitating the capacity to make legally-binding agreements—by creating a law of contract—the state invariably enhances rather than endangers the personal autonomy of those who may deploy it.” (P. 115.) Whether the dimension of personal autonomy that contract law promotes is closer to what Kimel identifies in promise or what I see in contract, one must therefore continue to ask whether the right connection exists in practice. I worry about this in the information age because corporations increasingly attach mass boilerplate to consumer contracts and courts increasingly enforce many terms that are rarely read or understood by consumers. These terms are rarely subject to consumers’ meaningful influence or choice. In these circumstances, much of what passes as “contract enforcement” may therefore be too disempowering and too onerous to promote personal autonomy.
Robert Alexy is one of the foremost contemporary legal theorists of this generation. His work has been very influential, both in analytic legal philosophy (e.g., A Theory of Legal Argumentation (Oxford, 1989) and The Argument from Injustice: A Reply to Legal Positivism (Oxford, 2002)) and in constitutional theory (A Theory of Constitutional Rights (Oxford, 2002)). He is a German theorist; while most of his important works were written first in German, many (like those just listed) have been translated into English, and many shorter articles have appeared originally in English, including the subject of the current jot.
In analytical legal philosophy, Alexy is best known for his “anti-positivist” views—views critical of the legal positivist theories associated with H. L. A. Hart, Joseph Raz, and others. His theory is nicely summarized in the short article being reviewed. Alexy argues that law has a dual nature: (1) a “real” or “factual” dimension, and (2) an “ideal” side. The real or factual dimension is associated with “authoritative issuance and social efficacy”; the ideal dimension is connected with “the element of correctness of content.” (P. 441.) Alexy argues that it is part of the nature of law that it claims to be (morally) correct. And following the German legal theorist of an earlier generation, Gustav Radbruch (in the works he wrote just after World War II), Alexy argues that a rule that is sufficiently unjust loses its status as valid law (the “Radbruch formula”). For Alexy, the claim of correctness and its correlate, the Radbruch formula, display necessary connections between law and morality, thus showing that legal positivism (which claims a separation between moral content and legal validity) is mistaken.
In the article, Alexy admits that there is a tension between the claim to correctness and the role of law in guiding behavior, which he connects to a “principle of legal certainty.” (P. 443.) Much of the article involves an evaluation of the extent to which legal certainty is undermined by the Radbruch formula (making extremely unjust legal rules void) or by claims that judicial application of general norms inevitably involves significant discretion. Alexy concludes that ultimately the inroads on certainty and predictability from those sources are modest and tolerable.
A challenge to Alexy (which I have raised in the past), similar to an objection Joseph Raz raised to Ronald Dworkin’s theory, states, roughly, that the theorist might be conflating a theory of adjudication with a theory of law. In the background is a problem of jurisprudential (or, more generally, philosophical) methodology: at a certain level of abstraction, it is hard to decide between competing characterizations of what judges have done or should do. Alexy and Radbruch say that an otherwise valid enactment, if sufficiently unjust, loses its status as valid law. Legal positivists (like Raz) would say that significantly unjust laws would often warrant citizen disobedience, and may create moral obligations for judges and other officials to change those rules or mitigate their impact, but the laws remain valid legal rules until they are changed. Alexy and Radbruch can point to German courts treating unjust rules (from Nazi Germany and East Germany) as “not law” because unjust. But what are we to say of cases where courts, in many countries and at many times, have (legally) enforced extremely unjust rules? Should we say (along with Raz) that the courts’ mistake is a moral one—that the judges should have done what they could to change the law or mitigate its effects—or should we say (with Alexy and Radbruch) that the mistake was a legal or conceptual mistake—that the courts somehow missed that the rules were not in fact legal norms? At the least, there are reasonable arguments for both characterizations, and I worry that Alexy—and Radbruch before him—have not offered enough arguments for treating their views as being conceptual claims about the nature of law rather than being prescriptive claims for how judges should decide cases.
At the same time, one should not too quickly dismiss (or overlook) Alexy’s views. If Ronald Dworkin was the most famous critic of legal positivism in recent decades in the United States, his counterpart in Europe was, and is, Robert Alexy. It is hard to overstate the influence of Alexy’s “Correctness Thesis” among Continental theorists; and this article, Legal Certainty and Correctness, works as a very good short introduction to the Alexy’s nuanced critique of legal positivism.
Cite as: Brian Bix, Alexy’s Anti-Positivism
(May 11, 2016) (reviewing Robert Alexy, Legal Certainty and Correctness
, 20 Ratio Jur.
441 (2015), available at Universidade Nova de Lisboa), https://juris.jotwell.com/alexys-anti-positivism/
Of the many reviews and critical notices that greeted the publication of Natural Law and Natural Rights [NLNR] in 1980, one of the most inﬂuential, and thus far unchallenged, was that by the distinguished American theologian Ernest Fortin, entitled The New Rights Theory and the Natural Law. In it, Fortin set out many of the principal criticisms that readers oppose to NLNR’s doctrines to this day: the book’s appearance of distance from traditional Aristotelian-Thomist concerns and modes of explanation; its focus on natural right in place of natural law (and the differences between the two concepts); the absence of the virtues from the book’s moral philosophy; its apparent surrender to liberal individualism.
In the years since 1980, John Finnis has ampliﬁed — sometimes considerably — upon these matters, including in the 2011 ‘Postscript’ to the second edition of NLNR, but until now had not directly replied to Fortin’s review. This long essay incorporates that reply. Whilst that Postscript served as an opportunity to comment upon and clarify the intention of many of the book’s passages, the present essay is closer in character to the ‘Postscript’ written by Hart for the second edition of The Concept of Law, focusing on the position of one critic in particular.
To some extent the lines of argument/clariﬁcation will be familiar to careful readers of Finnis’s work beyond NLNR, particularly those dealing with action-theory and his book Aquinas (Oxford University Press 1998). But here they are further supplemented, and in a way that brings to the forefront new issues: such as “the intellectual autonomy and integrity of work within an intellectual tradition that overlaps with a ‘faith tradition,’” (P. 199).
Of the responses to Fortin’s speciﬁc claims, I will brieﬂy pick out only one: the place of virtue within the argument of NLNR. Finnis replies that although NLNR deliberately avoids talk of virtue(s), nevertheless “virtue dominates the book” (P. 207, emphasis in orig.) in the shape of: (a) practical reasonableness, Finnis’s term for Aquinas’s prudentia, or more precisely bonum rationis; and (b) justice, the quality of character in virtue of which one is [steadily] practically willing to care for the common good of the community. (P. 208; NLNR, P. 165.) But “[q]uite generally, the problems of individual and communal moral life are not solved by talk about virtues,” and “NLNR’s undertaking to its readers, in short, is to provide something more helpful as a guide to conscientious decision-making in individual and social life than a mere naming of relevant virtues and counselling a life of virtue … advice easy enough to give but not much help to anyone. …” (P. 209-10). Yet, surely an aspect of the decision of Aristotle and (at huge length) Aquinas to set forth their accounts of Ethics in terms of virtues is the thought that principles of the kind that in Finnis’s view take priority (and are ‘helpful’) are not always available to resolve ambiguities or conﬂicts in one’s reasons for acting: for example, whether in a particular case it is right to exercise mercy. In such cases, the instruction to locate the mean of virtue between extremes of vice is not empty: it is an acknowledgement that we possess no luminous guide untainted by error or vice, but have to light our way by navigating between courses of action that we can identify as vicious or erroneous. Despite its practical orientation, NLNR does not offer the citizen any advice about the demands of mercy, charity, fortitude, beneﬁcence, etc.
One interesting facet of the essay is in Finnis’s explaining his assumptions and expectations of readers of NLNR, and the choices this caused him to make in arranging the book’s arguments and crafting its rhetoric. For example, he evidently felt some disappointment over the inattentiveness “to the book’s rhetorical and structural precautions for disarming or circumventing the hostility with which many modern readers approach anything associated by them with the past, especially the past of Christianity and of all that antedates the secular ‘liberalisms’ and conventional radicalisms of 1980 and today.” (P. 201.) But some at least of the book’s rhetorical strategies have proved to be over-subtle, and have converted friends into critics. On the subject of the book’s abstention from talk of virtue, Finnis states that the explanation is implicit in the following passage:
How does one tell that a decision is practically reasonable? This question is the subject-matter of the present chapter. The classical exponents of ethics (and of theories of natural law) were well aware of this problem of criteria and standards of judgment. They emphasize that an adequate response to that problem can be made only by one who has experience (both of human wants and passions and of the conditions of human life) and intelligence and a desire for reasonableness stronger than the desires that might overwhelm it.’ (P. 209; NLNR, P. 101.)
This sets a high standard of awareness for the book’s primary audience: “law students, undergraduate and graduate, [and] lecturers and other teachers many of whom have little acquaintance with, and no predisposition to favor, the philosophical and theological tradition in which the term ‘natural law’ ﬁnds its origins and its home.” (P. 201.)
It is not every author who has the good fortune to be able to specify, after the fact, the way in which his book is supposed to be read. But in reality, the good fortune in this instance is that of the reader, past or future, who may otherwise have missed out upon some of the subtleties the book has to offer. For as long as NLNR continues to be read (and misread), this essay will offer a valuable and authoritative commentary.
Scott Allen Anderson, Conceptualizing Rape as Coerced Sex
, Univ. of British Colombia (2015), available at SSRN
Scott Anderson’s article Conceptualizing Rape as Coerced Sex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.” So understood, rape is the criminal act of “either creating or taking advantage of pre-existing differentials in the ability and willingness to use force or violence,” toward the end of obtaining sexual gratification from the victim. The power differentials that render the pressure “coercive” are quintessentially created through direct force, violence, or threats of violence, but might also include taking physical advantage of another who is mentally or physically incapacitated because of intoxicants or cognitive or mental impairment. Most important, though, the power differentials at the core of the “coerciveness” that renders sex rape might be facilitated not by direct threats, but by drawing upon “the link between the threatener and others of a similar kind who have used similar powers in the past.” When sex is “coerced” in any of these ways, such that the victim is not able to “usefully or reasonably ignore, deflect, evade, or work-around the enforcement of the threat,” then the sex that results should be understood as rape.
Note that on Anderson’s account the victim’s consent or non-consent is not part of the definition of the crime (although it may enter as a defense). Rather, the definition focuses squarely on the assailant’s acts and mental states, rather than those of the victim: did the assailant create or take advantage of pre-existing differentials in the ability and willingness to use force or violence” to obtain sex. Nor does it require direct force: rather, the “differentials” in power that facilitate the rape may pre-exist the act itself, and may be as much a function of the similarity between the agent and others similarly situated, as anything the agent himself does in the particular encounter. This coercion-based account, Scott argues, would avoid both the under-inclusiveness of definitions of rape that center on force, and the possible over-inclusiveness of definitions of rape that center on consent. More significantly, it would better capture both what is distinctively harmful about rape, why rape is overwhelmingly (but not universally and certainly not by definition) a crime committed by men upon women, and why rape is a constitutive aspect of gender subordination to women’s detriment.
I believe this piece is an original and powerful contribution to the extensive rape literature, and a much needed intervention that might change the direction of a very longstanding and very stalemated debate. Let me briefly suggest why. The “rape debate” as it has existed for three decades now can be divided into three camps. On one side are, traditionalists, who define rape as (some variant of) “nonconsensual, forced sex” – thus requiring both non-consent and force (and sometimes adding on a requirement of “utmost resistance” for good measure), and on the other are reformers, all of whom view the traditional definition as at best redundant (because it requires both force and nonconsent) and at worst, dangerously under-inclusive. More specifically, the traditional definition – that requires both force and nonconsent – excludes rapes that are forced but arguably “consensual” where the consent is dubious (such as “date rape,” “marital rape” or “rape with prostitutes,” each of which, at various times in the near past, have been viewed as either literally or virtually consensual), and also excludes nonconsensual sex where there is no visible force (such as rapes where no force is required or used for the threat of violence to be viable). The dangerous under-inclusiveness of the traditional definition has prompted two camps of reformers: those who want to drop the force requirement altogether leaving rape defined as nonconsensual sex, and those who want to drop the consent requirement and define rape as forced sex.
But – both positions are problematic. There are several problems with the first (and dominant) reform position – that we should simply define rape as nonconsensual sex. Anderson focuses only on one: a lot of sex might be nonconsensual that really no one would want to make criminal. Sex obtained by fraud, for example, (obtaining sex by lying about one’s intentions or background) might be both immoral and nonconsensual in some important sense, but probably shouldn’t be a crime. Likewise, Anderson argues, some sex overrides a woman’s lack of consent in circumstances that clearly involve boorish and immoral behavior but not behavior that should be made criminal – such as where a partner in a long standing relationship eventually relents to her husband’s romantic overtures, but does so only “to get a good night’s sleep” – she doesn’t want the sex and at no time explicitly consents to it. So, a definition of rape as nonconsensual sex is simply too broad. The problem with the second definition – define rape as forced sex – is that such a definition limits the crime to sex obtained by either the use of force or the threatened use of force – thus leaving legal many marital, date, or acquaintance rapes where the threat of force is implicit rather than explicit – OR it defines “force” so broadly as to encompass virtually all sex – all sex, or at least all penetrative sex, requires some use of force. But more generally both “consent-based” definitions and “force-based” definitions run the risk of either trivializing the crime of rape by defining it in such a way as to encompass what are seemingly innocuous or at best immoral sexual transactions, or defining the crime so narrowly as to not pick up what seem to be seriously criminal and dangerous acts that do profound harm to victims. So the debate is badly stalemated at an unfortunate stopping point: we have a host of unpalatable legal-definitional choices.
Against that backdrop of a stalemated debate in which both sides hold seemingly untenable positions, Anderson’s intervention is very welcome. Anderson seems right to insist that coercion is the missing element in our understanding of rape: it is coercion, he argues, not either force or non-consent per se, that renders the sex that is obtained through various credible threats, so harmful. It is also coercion, as Anderson understands it, which ties the act of rape to the broader subordination of women – it is, on his account, the shared societal understanding of the background differentials of power between men and women that facilitates coercive sex. Thus, non-consensuality is not enough to make sex so seriously harmful as to be criminalized – but also, non-consensuality is not, at root, the point. We do indeed suffer harms to which we do not consent on a frequent basis (Anderson suggests, as an example, the harm suffered by the promisee when a promisor breaks a promise) some of which is innocuous. And, force is not the gravamen of the crime either: We can be seriously harmed by rapes which are not facilitated by either violence or the threat of it. The wrongness of rape and the harms of rape do seemingly stem, at least in substantial part, from the fact that the sex is coerced from the victim through a use or manipulation of power differentials between men and women that convey a credible threat whether or not such a threat is uttered, and thus facilitates the rape even in the absence of force. I think the piece succeeds in its general aim: Anderson promises to show, and does show, how such an understanding better accounts for the particular harms of rape, the ways in which rape occasions harms more profound than what might be occasioned by nonconsensual sex that is not coercive, and how it can occur even in the absence of direct force.
The coercion account directly resolves – because it directly addresses – a number of problems in the various reform positions on rape. Most important, it illuminates the role of power in rape, in a way that consent-based definitions, as well as the reform movement that embraces them, do not, and which force-based definitions – which do explicitly address rape an abuse of power – tend to confuse. Consent-based reforms identify the harm of rape as stemming from infringements on victims’ autonomy, by virtue of the baseline fact that their consent has been overborne. This both runs the risk of over-criminalizing sexual acts where consent is overborne for reasons having nothing or little to do with unequal power – such as deceit (as Rubenfeld complains) or fraud – and missing near entirely the nature of the harms rape occasions in both its direct and indirect victims: the ways in which it stems from and underscores the power differentials that make rape an overwhelmingly gendered crime and thereby reinforces as it relies on men’s physical power over women, and the potential for coercive behavior that differential entails. Force-based reforms, on the other hand, tend to not have a sufficiently nuanced account of the nature of power or force – the force required to coerce sex might originate in a socially shared understanding of the power imbalance generally between men and women. As a result, the force required in the rape itself by virtue of the definition of rape might be so great as to exclude a good bit of coerced sex which ought to be criminalized, at least to some degree: coerced sex that occurs because of a credible threat, given background conditions, but where no force is required or present. The coercion account of rape, unlike either the consent or force account, therefore points directly to the relation between the crime of rape and the subordination of women, both in the way rape is defined, and in the way it is explained and understood. For that reason alone, it is in my view a conceptual breakthrough.
There are of course problems. Some are obvious: for one, it is hard to see how the account of the “background differentials” could be codified into a rape definition. But there is also, I think, a problem with Anderson’s discussion of the inadequacies of consent-based reform movements that may not be so obvious but which might be of greater importance. In discussing the possible over-inclusion problem with consent definitions, Anderson distinguishes three cases. In the first a woman and her long-term partner awaken in the morning, the man makes sexual overtures, the woman tells him she’s not in the mood, the man persists, and she eventually relents – by which Anderson means that she “stops pushing him away and telling him ‘no’”– leaving her “somewhat peeved.” And, Anderson states, she “never explicitly gives consent to sex.” In the second, a woman tells her occasional lover to come over but that she is not interested in having sex, he comes over, they begin to kiss, after foreplay she tells him to leave, because it is “past her bedtime,” he doesn’t, she “simply gives in and allows him to have sex with her, without giving express consent, figuring that it’s the only way she’ll get to sleep.” In the third, a college student in a dorm kisses and fondles a woman who has come to his dorm room, she rebuffs him saying “No I gotta go, let me go,” he ignores her, gets up and locks the door, “picks her up, puts her on the bed….and has sex with her, despite her repeatedly saying ‘no, no’.”
Anderson argues that in all three cases the woman has not consented, but only in the third has there been a rape. He then analyses the differences between them in terms of coercion: coercion is present in the third case, but not in the first two. Thus, the result reached under an understanding of rape as coercion, best fits our intuitive understanding that the behavior in the third case is far worse than in the first two, and so much worse as to be criminal, while the first two should not. Therefore, the consent standard, which renders all three cases rapes, is a worse fit with our intuitions than a coercion standard, which would clearly classify the third case as a rape but not the first two, even though all three involve nonconsensual behavior.
I agree with Anderson that the first two cases should not be classified as rapes, and that the third should. I disagree, though, that the first two cases involve sex that is “nonconsensual.” It seems to me that in both of these cases the woman has consented, although the consent has not been express. The woman has in both cases voluntarily acquiesced, or submitted, and it seems to me that that act of acquiescence – because she wants a “good night’s sleep,” because its not worth the hassle, for whatever reason – is indeed consent. For Anderson’s purposes, I’m not sure this difference between us matters: I agree with him that there are other scenarios of truly nonconsensual sex that don’t involve coercion and that ought not to be criminalized for that reason. Some of the sex-by-deceit cases that also concern Rubenfeld, I think, fit into this category. So I agree with Anderson’s general point that coercion, rather than consent, is a better fit with our general intuitions about what sorts of sexual conduct ought be made the subject of criminal prosecution.
I do think it matters, though, for other purposes, whether we categorize the sex in the first two scenarios above as consensual or not. Many of us – particularly sexual liberals and libertarians – have a very general tendency to think that only nonconsensual sex can possibly be immoral, and that immoral sex, if it is truly immoral, simply must be nonconsensual. But this just isn’t true – there may be reasons to be critical of sexual behavior that is both consensual and legal, but nevertheless harmful and immoral. Some consensual sex in other words should be subject to moral and even political criticism. Women acquiesce in sex such as what is described in Anderson’s hypotheticals above very frequently. Sometimes, women do so for precisely the reason Anderson suggests – to get a good night’s sleep. Sometimes they do so for a host of other reasons: to avoid a boyfriend’s bad mood, to placate a husband who may otherwise refuse to be cooperative with other household responsibilities, because of peer pressure, because of a sense of religious obligation. Whatever the reason, she is consenting to and then engaging in unpleasurable and unwanted sex.
The cumulative effect of consenting to unpleasurable and unwanted sex might in turn be harmful – they all manifest an imbalance in the relative importance a woman ascribes to her own hedonistic pleasures and desires compared to that of her partner. Doing so repeatedly – engaging in unwanted, consensual sex – might harm a woman’s sense of physical self-possession, limit her autonomy, undermine her own moral integrity, and lead to self denigration, as she places her own sexual pleasure and desire, or lack of desire, second to that of the felt imperatives of her partner’s desires. That imbalance in self regard on the one hand and regard for the importance of the sexual drive of her partner on the other, might itself be one of the background conditions that facilitates broader patterns of gender based subordination, both in the sexual sphere but also elsewhere. It might be part of why so many view rape as not a significant crime. And, it might also be a part of why women tend to be bad economic negotiators, have problems raising their hands in law school classrooms, minimize their physical presence through shrinking postures, engage in excessive private altruism in their private lives – and so on. If it is, then we should attend to the harms we may be doing ourselves when we near-habitually consent to sex we don’t want – as the two women in Anderson’s hypothetical above are doing. Sometimes that consensual unwanted sex might be innocuous – we may consent to unwanted sex out of genuine and reciprocated love, for example. But often it may not be. Consensual unwanted sex can undermine our sense of self, and thus our ability to negotiate a liberal world. When we repeatedly engage in sex we don’t want, we risk having an undermined sense of self become our pervasive self definition. We shouldn’t so undermine ourselves – and we should tell our daughters (and sons) likewise.
Over-defining non-consent – concluding wrongly that there’s no consent where we have in fact consented, particularly in sexual contexts, but where we don’t want or desire that to which we’ve consented – I believe, has a host of bad consequences, only one of which is that it results in the over-criminalization of the act to which consent has in fact been given. It also tends to underscore – and perpetuate – our fetishistic overvaluation of consent as a marker of value. Anderson wants to argue that we sometimes withhold consent from sexual transactions even where there is no coercion – and that consequently non-consent should not be the mark of sexual harm, and therefore should not be essence of the crime of rape. That might be right, and I tend to think it is. But we also sometimes consent to sexual transactions we don’t want, in circumstances that might or might not be coercive. We should be aware of that class of behavior, so that we might subject it to moral and political scrutiny – whether or not the behavior in question is something which the law ought to regulate. The viability and opportunity for that critical lens is what Anderson’s tendency to collapse nonconsent with unwantedness – shared by and I think a result of larger societal forces – sacrifices.
Let me emphasize though that this undue collapse of nonconsent with unwantedness – if it is one – is incidental rather than central to Anderson’s project here. He wants to define rape in such a way that it does not pick up sexual transactions which on his description are nonconsensual but also noncoercive, and which on my description are consensual but unwanted. We both agree that these sexual transactions might be immoral but that they should not be criminal. I might think they are more harmful than Anderson believes them to be, but I agree with him that they should not be criminal. I don’t think that these examples usefully distinguish non-consent from coercion as the marker of rape – because I believe they are in fact consensual, and would not and should not be the subject of a rape prosecution for that reason. But I agree with Anderson that there are likely instances of nonconsensual sex that are also noncoercive and that should therefore not be criminalized – even if the particular examples he provides fail.
Anderson’s larger point, though, in this piece – that we should understand the gravamen of the crime of rape as well as the harm of rape to lie in its coerciveness, rather than its nonconsensuality – seems entirely right, and convincingly argued. I hope that it is widely read and debated. It could conceivably break the rape debate stalemate, and in a highly productive direction.
Frederick Schauer, The Force of Law
(Cambridge: Harvard University Press
Some of the most difficult problems in legal and political philosophy concern the state’s use of coercive enforcement mechanisms. The problem of justifying state authority, for example, is an important moral problem precisely because the state characteristically employs enforcement mechanisms that coercively restrict the freedom of law subjects – coercion being presumptively problematic. Without such mechanisms, authority does no more than “tell people what to do” – a practice that seems presumptuous and rude but not one that would give rise to any serious moral problem that warrants a great deal of philosophical attention.
In The Force of Law, Frederick Schauer discusses a variety of problems that arise in legal theory because of the law’s characteristic use of coercive enforcement mechanisms. The book’s treatment of the role of coercion in law spans the entire spectrum of these philosophical problems, encompassing issues that are conceptual, normative, and empirically descriptive in character. It is an unrelentingly fascinating discussion that demonstrates Schauer’s impressive mastery of a literature on coercion that crosses many discipline lines. The book succeeds in bringing the problems associated with coercion back to the forefront of debates about the nature of law; it is, for this and many other reasons, a must-read.
One of these problems is conceptual — the issue being whether it is a conceptually necessary feature of law that it employs coercive enforcement mechanisms. As Schauer observes, the authorization of coercive enforcement mechanisms is both central and ubiquitous to law, as we have experienced it in the world of our empirical experience: “The law tells us what to do, and it tells us that if we do not obey, then bad things will happen to us” (P. 5).
It is certainly true that not every law can be characterized as being intended to coerce certain behaviors. Schauer points out that many laws regulate behavior through means that are not accurately characterized as coercive. As he puts it, “[t]he law does not appear to care whether I make a will or not, and it certainly does not coerce me into making or not making one.” (P. 2) Rules that are constitutive of law and certain practices such as those giving rise to the law of contracts are not properly characterized as “coercive,” on this argument. There is, as Schauer observes, “distortion inherent in attempting to shoehorn all of law into the ideas of force or compulsion.” (P. 2) Law may sometimes utilize the favored mechanism of the gunman (i.e. coercion), but law is not just a gunman writ large.
Here it is worth keeping in mind what I take to be Schauer’s larger concern in writing the book and most valuable contribution of the book to the literature. Schauer has been convinced (incorrectly, I will suggest) by arguments for the view that coercion is not a conceptually necessary feature of law, and his point is to reach beyond narrow disputes about coercion in conceptual jurisprudence to the wider jurisprudential community. His concern is to make readers aware of the point—and this is surely correct—that even if the link between coercion and law is not conceptually necessary, the phenomenon of coercion deserves greater attention among philosophers and legal theorists is on other areas, such as sociology and psychology.
Having said this, however, I think it important not to surrender too quickly to Hart’s view that coercion is not conceptually related to law. Notice that there are other ways than the view Schauer criticizes above to hold the position that coercion is a conceptually necessary feature of law. Although theorists like Jeremy Bentham and John Austin might have embraced this stronger view that every possible legal norm is coercive in character, H.L.A. Hart saw that there was a weaker—and far more plausible—view of the conceptual relationship between law and coercion. As Hart observes in Essays in Jurisprudence and Philosophy (P. 78):
It is surely not arguable (without some desperate extension of the word ‘sanction’ or artificial narrowing of the word ‘law’) that every law in a municipal legal system must have a sanction, yet it is at least plausible to argue that a legal system must, to be a legal system, provide sanctions for certain of its rules. So too, a rule of law may be said to exist though enforced or obeyed in only a minority of cases, but this could not be said of a legal system as a whole.
According to this weaker claim, then, it is a conceptually necessary feature of legal systems that (1) coercive enforcement mechanisms (2) are authorized (3) for violations (4) of some mandatory legal norms that (5) regulate the acts of citizens. [For a defense of this weaker claim, see Kenneth Himma, “The Authorization of Coercive Enforcement Mechanisms as a Conceptually Necessary Feature of Law,” forthcoming in Jurisprudence; available at SSRN.
Schauer considers this more plausible possibility but rejects it on the strength of the well-known “society-of-angels” argument. The idea is that a society of angels would need a system of social norms to solve certain disputes and coordination problems but would not need coercive enforcement mechanisms to enforce these norms. This system is, on this line of reasoning, a system of law.
It is not clear, however, why anyone should think that a system of norms governing a society of angels should be thought of as being a system of law. As Joseph Raz observes, it is our legal practices that construct the content of our legal concepts. But our legal practices are essentially organized around an attempt to keep the peace when potentially dangerous conflicts arise between self-interested beings for scarce goods needed to satisfy desires or needs. That is why coercion is omnipresent in the real world of legal systems: self-interested individuals who are otherwise likely to resort to violent self-help to settle conflicts are most effectively deterred from violence by the threat of violence. It is difficult to see what there is in our legal practice that would support the idea that there could be law in circumstances very different from ours among beings with very different psychological characteristics than ours, as there would be in a society of angels.
But, as Schauer ultimately realizes, the conceptual dispute is not necessarily the most important dispute. Even if coercion is not an essential property of law, it is still a feature of many legal systems that warrant philosophical attention. Conceptual disputes are largely terminological in character; the claim that law as such is not coercive does not entail that the law’s use of coercion does not merit serious philosophical evaluation. As Schauer rightly insists, “it may still often be more valuable to focus on the typical rather than the necessary features or properties of some category or social phenomenon.” (P. 4)
Of course, Schauer does not limit himself to either conceptual or empirical issues; Schauer wants to highlight the whole range of issues that arise in connection with law and coercion. The book has many contributions to make, in terms of both its breadth and depth; however, it should always be kept in mind that one of his chief points is to expand and recast the conversation away from the narrow conceptual one.
Schauer’s The Force of Law is, by far, the most important recent comprehensive discussion on the role of coercion in law. It is consistently insightful and enlightening. But Schauer’s earlier work on the topic, which gestures in the other direction, is every bit as thoughtful and important; it should not be ignored or forgotten.
This article exemplifies — in a very clear and accessible way — a new position that appears to be emerging among philosophers of law in the anti-positivist tradition. Previously one would have described positivists and anti-positivists as providing different answers to the following question: What grounds the existence and content of legal norms? For positivists, the answer was social facts. For anti-positivists, the answer was a combination of social and evaluative (particularly moral) facts. No one doubted that there are distinctively legal norms (legal rights, obligations, privileges, powers) that together constitute the law of a community — and that these norms are different from the norms of morality and prudence.
Notice that even though anti-positivists considered the existence and content of legal norms to depend on the confluence of social and moral facts, they generally treated legal norms as distinct from moral norms. Consider Ronald Dworkin’s anti-positivist theory of law, as presented in Law’s Empire. Under this theory, the law of a jurisdiction is the set of norms that would be accepted after a process in which “the interpreter settles on some general justification for the main elements of [legal] practice” and then reforms it by “adjust[ing] his sense of what the practice ‘really’ requires so as better to serve the justification” (P. 66). In particular, the interpreter attempts to come up with a justifying connection between past political decisions and present coercion (P. 98).
It might appear as if legal norms are moral norms for Dworkin. The process of interpretation simply determines how social facts about legal practices trigger moral norms, the way the social fact that I say I’ll take you to the zoo triggers the moral obligation to keep one’s promises. But such a reading would be a mistake. In interpretation, the identification of legal norms is constrained by the particular community’s legal practices that are being justified. Justification must fit those practices, and this requirement of fit means that legal norms can deviate in a fundamental way from moral norms. There is no comparable constraint when social facts trigger moral norms. The social fact that I say I’ll take you to the zoo does not constrain the moral obligation to keep one’s promises — it simply makes that moral obligation more concrete and particular.
Thus, for most of Dworkin’s career, he saw legal norms as distinctively legal. But toward the end of his life, he adopted a different position. Now the way that social facts combine with moral facts to generate legal norms is comparable to the way my saying I’ll take you to the zoo combines with the moral obligation to keep one’s promises to generate my promissory obligation to take you to the zoo. Legal obligations are moral obligations made more concrete and particular by legal practices. Recently, Mark Greenberg has offered a similar account of legal norms, as the moral impact of social facts about legal institutions (when generated in legally proper ways).
Hershovitz argues, I think rightly, that the Dworkin/Greenberg position is better developed as an eliminativist one, in which there are no distinctively legal norms. As he acknowledges, this eliminativism has a good deal in common with positivism, for what is distinctively legal (that is social facts about legal practices) can be wholly without moral merit (P. 1194). But eliminativism isn’t positivism, for positivists largely remain committed to the existence of distinctively legal rights, obligations, privileges, and powers (P. 1195). For the eliminativist, the only way to think about what rights, obligations, privileges, and powers are generated by legal practices is morally.
There is a curious similarity between Hershovitz’s eliminativism and American legal realism, particularly as expressed in the writings of Felix Cohen and Walter Wheeler Cook. The realists were not just worried about the consequences of legal indeterminacy. They were skeptics about the existence of legal norms in general. Legal norms are unnecessary for adjudication — all a judge needs to do, and should do, is think morally about the social facts that are generated by legal practices.
I admire Hershovitz’s willingness to draw Greenberg’s and the later Dworkin’s reasoning to its eliminativist conclusion. But I think that the fact that this conclusion is eliminativism only highlights why philosophers of law should be skeptical of the Greenberg-Dworkin position in the first place. Eliminativism is not just a problem for anti-positivists, however. Positivists also seem incapable of arriving at a convincing account of distinctively legal norms. Generally, they understand legal norms as only quasi-normative (for example, as moral obligations from the point of view of legal officials, who may be utterly misguided) (P. 1169). This can be considered a form of eliminativism itself, whether or not positivists would accept such a characterization.
But at times positivists argue that legal norms have a genuine (non-moral) normativity. For example, under Scott Shapiro’s theory of law, a law is a certain type of plan (P. 170-173). Having adopted a plan, the norms of instrumental rationality (or prudence) recommend that one not reconsider it absent compelling reasons. Thus, for Shapiro legal norms are genuinely (albeit weakly) normative — they really give us (or at least officials) reasons for action, namely, reasons not to reconsider plans. They are not simply normative from a point of view. But doesn’t this too suggest eliminativism? For Shapiro, legal norms are reducible to a combination of social facts (about the creation of the requisite plans) and the norms of instrumental rationality. If so, why speak about legal norms at all? Why not simply speak of the norms of instrumental rationality that are triggered by social facts about legal practices?
The problem, as I see it, is that philosophy of law (whether positivist or anti-positivist) is at war with itself. On the one hand, philosophers of law want to preserve the existence of a distinctive realm of legal norms that constitute the law of a community. On the other hand, they are unwilling to understand legal norms as irreducibly legal. Frankly, I cannot see how these two positions can be reconciled. Hershovitz bites the bullet and gives up the distinctive realm of legal norms. For my part, I would give up reduction and adopt the Kelsenian position that legal norms are irreducibly legal.
Freedom of speech can be regarded as the product of the modernization process that occurred in Europe during the seventeenth and eighteenth centuries. As people moved out of the narrow confines of their rural villages, and the population of the towns expanded beyond the narrow limits of craft guilds and commercial families, a public culture developed within and among the rapidly expanding urban centers of the Early Modern era. In these settings, the gradual relaxation of the legal sanctions against various types of speech was accompanied by a parallel attenuation of the social sanctions that constrained such speech. The shaming and shunning that could occur in a village or small town ceased to function in the burgeoning urban context. People expressing dissident views could find like-minded individuals with whom to socialize and achieve a degree of anonymity in the more mobile and pluralistic world of broad boulevards, large financial or industrial organizations and bureaucratized public institutions.
As Ronald Krotoszynski points out in a recent article that I like lots, the advent of modern communication technology places both sources of our hard-won freedom of expression at risk. It reintroduces shaming and shunning penalties by enabling those who are offended by a particular statement to generate condemnations that will be permanently attached to an individual’s Net presence and thus publicized throughout society. In addition, the government’s access to big data enables it to impose indirect threats to free speech in the form of wide ranging, coordinated surveillance of the individual’s activities. Even if the legal system continues to prohibit direct criminalization of speech, the possibility of prosecution for other crimes, or the government’s unauthorized but untraceable disclosure of sensitive information, may well produce a chilling effect that rivals the force of criminal penalties.
Professor Krotoszynski explores the possibility of legal responses to this potential loss of freedom by contrasting European and American law on the subject. Although the idea that Europe provides more extensive protection for personal privacy than the U.S. has become something of a comparative law bromide, he demonstrates that it possesses an essential validity. His summary of European Union doctrine provides an excellent introduction for the general reader. In contrast to American law, the European Convention on Human Rights not only includes an explicit right to free speech (Article 10), but also an explicit protection of personal privacy (Article 8). In addition, the European Court of Human Rights that interprets this Convention follows general Continental practice in holding that the violation of a right is not sufficient, by itself, to justify judicial relief. Rather, once the violation has been found, the extent of the burden it imposes must be balanced against the pragmatic justifications for the state policy that has trenched upon the right in question. Thus, the European Court must balance two conflicting rights of equal legal dignity, and must carry out that calculation at an explicitly identified stage of the judicial decision making process.
This would appear to form a dramatic contrast with American law. The U.S Constitution definitively establishes freedom of speech and does not state any countervailing right (the Supreme Court’s right of privacy being an interpretation, and applying primarily to family choice). Once a court has found a violation of that right, the law or policy that violates that right is supposed to be invalidated, with no further consideration of the government’s justification. But Professor Krotoszynski argues that, in actuality, the contrast is not quite so stark. The European Court finds, in a variety of circumstances, that the Article 10 right of free speech must prevail, particularly when the person attempting to assert privacy rights is a public figure. Conversely, American courts, with or without positive law to invoke, have favored privacy interests over speech in cases where the intrusion on the individual was deemed excessive, such as targeted picketing of a person’s home, using the Freedom of Information Act to obtain personal data, recording a person’s cell phone conversations, or publishing information obtained through civil discovery.
Given this partial convergence of European and American law, Professor Krotoszynski suggests, the United States is in a position to learn from current European efforts to balance free speech and personal privacy law. The reason why this balance must be struck is that, in our modern world, privacy itself is as much a component of free speech as a constraint upon it. “In an age of metadata, privacy constitutes a kind of precondition to speech, just as assembly constitutes a necessary antecedent to petitioning” (p. 1335). The analogy to petitioning, which happens to be the subject of a book by Professor Krotoszynski, is telling. An assembly is a place where people gather to formulate a petition. Similarly, an individual must gather his or her own thoughts before speaking, and certainly before speaking effectively, about an issue. Modern urban life, free from the constants imposed by the intrusive eyes and debilitating gossip of one’s fellow villagers or townspeople, provides a clear space for such preparatory thought.
But the Internet’s ability to intrude into a person’s life, to disseminate visual images of people’s careless actions and to pillory their passing comments, invades and colonizes that formerly clear space. It dissolves the anonymity that the modern city conferred on its residents, and restores, through fictive screen names, the anonymity by which disparaging remarks could be introduced into the stream of village gossip. Government’s collection of big data poses an equivalent threat, not so much from what appears in public as from what is known in the hidden recesses of administrative agencies. In both cases, the effect is to invade that same abode of thought that serves as a prerequisite for speech. Modernity’s gift to freedom has not only been to place constraints on public power, but also to dispel the suffocating force of conventional opinion. It provides people with an alembic where they can formulate their thoughts and plan their actions free of either government surveillance or social disapproval—in other words, it provide them with privacy. Professor Krotoszynski alerts us to the essential role that privacy plays in freedom of expression—not as a countervailing force but as an essential component. At the same time, he traces the way that those two principles can come into conflict in many real situations, how European courts have struggled to resolve those conflicts, and how our own courts and legislators might learn from that experience, and we move, or are dragged, forward into the information age.
Jeremy Waldron, Immigration: A Lockean Approach
, NYU School of Law, Public Law Research Paper No. 15-37
(2015), available at SSRN
Approximately eleven million people currently reside in the United States as undocumented aliens. Most of these are so-called “economic” immigrants, who do not qualify for political asylum. Due to armed conflicts in the Middle East, approximately 350,000 migrants illegally entered countries of the European Union in the first eight months of the current year. Many of these will qualify for political asylum, but many will not; for from a legal perspective they, like the vast majority of US “illegals,” have immigrated primarily for economic reasons. Not to pillage and plunder, but to seek a better life by taking up opportunities for work in these wealthier and more stable countries. In other words, they come and keep coming mainly in order to bargain freely with legal residents who will pay for their labor.
The nations of Earth claim the right to exclude non-citizens from their territories, and many actively do so. Except in extraordinary circumstances, would-be immigrants have no recognized human right to be admitted or to remain. Illegal immigration, then, can present a complex set of policy questions whose answers involve balancing a range of reasons, both for and against policies such as amnesty, adjustment of legal status, management of quotas, enhanced border enforcement, construction of physical barriers, and deportation. The reasons going into the mix include public attitudes, human hardship, monetary costs of many kinds, impacts on wages, crime rates, demand for public services, and intangibles such as community homogeneity and “quality of life.” Jeremy Waldron rightly rejects the view that the question is essentially one of policy or the application of a settled ethics of national sovereignty. Waldron has rarely shied from the role of public intellectual, and here he seems poised to embrace it with uncommon vigor.
“If there were no state or system of positive law, would individuals organized less formally into communities have the right to drive away strangers who approached their vicinity?” (p. 3)—so Waldron puts a question that ought to be central to any discussion of the justice of excluding migrants from territories. We tend naturally to accept territorial sovereignty of governments just as we naturally tend to accept the justice of individual private ownership of real property. Our acceptance is qualified, of course, but the usual presumption is that states have a right of some kind to exclude aliens at their borders, just as we have a right of some kind selectively to exclude strangers from our front porches. The sovereign right arises by aggregation of individual rights.
When the presumed right to own private property is challenged, educated English-speakers tend to turn to John Locke. Locke’s account of original acquisition, with its image of mixing labor and its proviso of leaving enough and as good for others, seems a plausible ground to stand on. So also, we may think, it supplies enough and as good a ground for the presumption that states have a right to exclude aliens, subject only to limited humanitarian exceptions. States are simply the assignees of natural individual rights.
Waldron carefully but remorselessly demolishes this comforting strategy. Assuming, for discussion’s sake, that Locke’s account of private property is valid, it cannot soundly be extended to the case of state’s claimed sovereign right over a territory. Lockean rights to real property are not “clubbable” (p. 12). Waldron has written extensively on Locke, including a book on Locke’s theory of property, and so he writes with a well-earned authority on the subject. “The Lockean approach is not the only way of justifying state powers,” he admits, but rightly adds that “[i]f the Lockean approach does not vindicate the right to prohibit immigration, then the options for its justification are drastically reduced” (p. 6). Relatively few anglophone readers can comfortably turn to Hegel as a philosophical back-up; and Waldron takes up and disposes of a number of related apologies for territorial sovereignty.
Not only is the paper forcefully argued, it shows how deeply Waldron cares about what is happening to people. This accounts for the impatience evident in his swipes at former British Prime Minister John Major’s smarmy invocation of “long shadows on cricket grounds,” (p. 20) and at the now-fashionable notion that democracies can legitimately exclude migrants to preserve a homogeneous national culture. In language that will redden some ears, Waldron declares that “Modern political philosophy has really never been shabbier than in its invocation of ‘cultural rights’” (p. 19). The concept of a state-defined culture—(don’t they see?)— is just as antithetical to liberal democracy as a state religion.
Waldron goes even farther, arguing that justice limits not only what states may do, but what citizens may permissibly ask that they do.
we are inclined to think that—whatever states have a right to do—citizens have a right (a free speech right) to advocate whatever policies they like and also a right (a democratic right) to exercise their vote however they please. But in some areas where the legitimacy of state action is restricted, it is actually not inappropriate to infer restrictions on citizen advocacy. (p. 2, fn 2)
His suggestive case for the proposition that international human rights law imposes a content-based limit on what speech states are free to tolerate is bound to be controversial. But he is right to deplore the demagogic pandering to anti-immigrant sentiment, by which many politicians try to show that they are not “out of touch.” Waldron reminds us that there are some popular sentiments that it is not a good thing to be in touch with.
Once upon a time there were banks that served the poor. Government structured banks for that purpose—government gave banks cheap money and protection against failure partly in exchange for their providing a place to deposit money, earn interest and get credit, along with economic stability, for everyone. Financial innovation, increased competition and deregulation changed all that: the period of dramatic transformation left the poor and working class without services, as banks came under competitive pressure.
Once upon a time, post offices provided banking functions, giving the ordinary customer a brick-and-mortar office to park their cash. Then competition from higher-interest rate banks changed all that; with shrinking demand, postal banking was dismantled in 1967.
Mehrsa Baradaran’s terrific book, How the Other Half Banks, argues that we could and should ask banks to serve the poor and working class once again. In particular, post office banks (with storefronts and websites both) could provide those missing banking services: a place to park cash, earn interest and take out small amount loans.
Baradaran has become the academic face for postal banking: in the wake of her article in the Harvard Law Review Forum on postal banking, she has consulted for the U.S. Postal Service Inspector General, has appeared together with Paul Krugman, and has published in the New York Times, The Atlantic, Bloomberg, NPR, Slate, and other major media outlets. Senator Elizabeth Warren has relied on Baradaran’s historical expertise in sketching out the case for postal banking as a real policy option.
The book expands on the Harvard Law Review Forum essay significantly, but for a cross-over audience, academic and trade, leaning heavily on the trade (necessarily with less nuance and fewer footnotes). The book makes two central arguments. First, despite banking’s origins as a public institution, banking no longer offers adequate services to the poor and working class in the wake of deregulation, because banks have come under competitive pressure to chase profits. Second, a public option for banking could restore these services to those who are now unbanked; in particular, postal banking is one potential public option whose time might have come again. Baradaran contributes a great deal by linking these two arguments together, to remind us of banking’s public beginnings, and to show us how postal banking cures what ails us.
In the first part of the book, Baradaran narrates the story of how banks first adopted, and then abandoned, the mission to serve all sectors of the public. History shows that government structured banks as it did on the assumption that banks would serve not just the moneyed classes, but people from humbler circumstances as well. At the broadest level, banks were originally envisioned as public institutions through which the government wielded its hand on economic policy to shepherd the national economy towards productivity. At the narrower level, banks were expected to serve all members of the public regardless of economic circumstance. For those reasons, banks were given access to cheap credit, discount windows, federal backing via FDIC insurance, and, more recently, government bailout in time of great crisis. Far from being ordinary market players, banks were stewards of public economic health, and government was entangled in every part of their operation.
Bank deregulation changed all that, together with the accompanying shift in thinking and policy, and the radical restructuring of the market. Now banks have become free to act more as private corporations with fewer restrictions, in order that banks can pursue profitability. At the same time, banks are still vested with responsibility for (and the ability to affect) the country’s economic health. Smartly, Baradaran acknowledges that banks needed to restructure, given the shift in the economy, but she quarrels with the specifics of deregulation (and tends to oversimplify a bit along the way). Still, her aim is not to criticize deregulation per se: her main focus is to demonstrate the dramatic departure from public institution to pseudo-private actor, and that she does well.
Against the historical backdrop, she sketches the problem of the unbanked—the failure of banks to serve the poor and working class. Baradaran first focuses her lens on the alternative services to which the unbanked have now turned: payday lending, title and installment loans, check cashing, and other such services. She rehearses at length the research on the existence and effect of such services on the poor and working class: bankruptcy, sky-high debt and an economic downward spiral.
One of Baradaran’s central contributions is to redescribe the problem of the unbanked in terms other than market failure. Given the level of government entanglement with banks, we can’t think about banks as following ordinary market rules (think about the Fed setting rates, for example). Accordingly, says Baradaran, the problem of payday lending and other fringe services is not a problem of ordinary market failure involving mundane asymmetries of information, but rather a structural policy problem. In particular, in the wake of innovation and deregulation, institutions that had once served the poor and working class abandoned their public mission to now chase profits, by necessity.
These institutions had little choice, she says. Owing to deregulation, credit unions, savings and loans, and other specialized and small community banks lost their once-protective geographic monopolies and now came under significant competitive pressure to improve profitability. Because community banks found it more costly to provide products and services for the poor and working class (e.g., small-amount loans, interest-based checking), banks abandoned those higher-cost services for lower-income patrons in favor of more profitable products and services.
Baradaran’s exploration of this argument is thorough: she investigates failed government efforts to require, subsidize or otherwise entice banks to provide services for the unbanked. For example, she reviews at length the Community Reinvestment Act, a regulatory requirement/subsidy scheme that failed because it required too much of banks and failed to sufficiently subsidize the full cost of providing services for the other half.
In the last part of the book, Baradaran explores potential remedies for the problem of the unbanked, as part of a call to shift economic policy to provide for them. She investigates among other options the revival of community banks, micro-credit, pre-paid cards, and Walmart banking, noting their strengths and weaknesses. One could write a paper on each of these options, and I can’t fault her completely for not spending more time on these potential remedies, though I’d have liked to see a more extended discussion, particularly of Walmart banking.
In the most refreshing and innovative contribution in the book, and perhaps the reason that I most adore it, Baradaran outlines at length the most ingenious “public option” solution: postal banking. The idea is not hers originally, but she seizes and expands on the idea brilliantly and at great length. In particular, she advances the case for postal banking by reviewing the country’s earlier experience with postal banks, and by linking that experience to the modern problem of missing services for the poor and working class.
As this chapter opens, Benjamin Franklin’s postal system comes into view and we learn about the bureaucratic and logistic wonder that is the U.S. post office. Like banking, the reach and scope of the postal system is essential to a growing economy; like banking, the system builds connections of trust between government and citizen.
Baradaran narrates the long history of the country’s first postal banks, and the debate over their existence. Baradaran shows how postal banks provided for the needs of the working poor, and how in fact postal banks were adopted for that very reason. In a real moment of déjà vu, Baradaran recounts the financial crisis—the Panic of 1907—that paved the way for the country’s full embrace of postal banking, as a way of providing for those toward the bottom of the economic ladder.
Baradaran then persuasively argues that postal banking might now be revived to provide both deposit and credit products and services for poor and working class customers. Although postal banks historically provided mostly the opportunity for savings, and less for extension of credit, the book suggests that small-amount loans could be offered via postal banks. For those who deal in cash, a brick-and-mortar postal bank could provide a way to convert cash to digital dollars; for those who prefer Internet banking, the postal bank could provide that too.
Baradaran smartly acknowledges that like Walmart banking, postal banking would face significant political opposition (though she notes that, compared to Walmart, postal banking would have the advantage of generating more trust as a public entity, without Walmart’s profit-focused reputation of underpricing and then raising prices). Baradaran recounts not just the success of postal banks in the U.S. (which closed when community banks paying higher interest rates came onto the scene), but also their relative and variable success in other countries like Japan, Germany, the UK, France, and Brazil. One can appreciate why the policy world has come to Baradaran for her expertise, and this book will constitute a central contribution to the debate.
My one major quibble with this book is that it does not acknowledge the racial dimension of the problems of the unbanked. Though Baradaran discusses the history of the Freedman’s Bank and talks about racial discrimination in banking, she does not acknowledge that payday lending and check cashing establishments are four times more likely to locate in minority neighborhoods, even controlling for income, and that a disproportionate share of borrowers are people of color. The structural problem of the unbanked involves the country’s racial history more than she acknowledges.
Even so, I will recommend this book to all who are interested in structural racism. Without explicitly recognizing it, Baradaran demonstrates how the the post-deregulation restructuring of banking has disproportionately impacted communities of color, and how postal banking and other public options might bring them back into the fold once more. Baradaran’s revival of postal banking, and her description of the disappearance of services in the wake of deregulation, is fresh and engaging, and I highly recommend both the law review forum essay and book for all who are interested in the structure of inequality.
Law is filled with legal fictions, roughly defined as statements known to be false but treated as true by legal actors to achieve a purpose. No one is deceived by legal fictions, and the consequences of the fiction are generally recognized. The early common law was filled with fictions, often utilized to satisfy pleading or jurisdictional requirements. Well-known examples are fictional statements about lease and ejectment necessary for the action of ejectment, and statements about goods lost and found necessary for trover. Perhaps the most infamous example is Mostyn v. Fabrigas (1773), when Lord Mansfield concluded that Minorca was in London for the purposes of obtaining jurisdiction in the case. By the nineteenth century, after Bentham’s caustic attacks on legal fictions, their prevalence in law had come to be an embarrassment. An American jurist critically remarked in 1841, “All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehoods and lies.” In Ancient Law (1861), Sir Henry Maine acknowledged fictions serve the useful purpose of facilitating change in the law, but he considered them a discredit to modern legal systems. Yet, a century and a half later, fictions still continue to exist in law.
Maksymilian Del Mar and William Twining have produced a superb collection of 19 essays on legal fictions. The book begins with a splash, publishing a first-time English translation of Hans Kelsen’s 1919 response to Vaihinger’s influential book on fictions. In consistently high quality essays, subsequent chapters take up a broad range of issues. About half of the chapters involve theoretical explorations that focus on what fictions are, how they should be defined, what purposes or functions they serve, why they exist, what their implications are for law and language, how influential theorists have considered them (particularly Fuller, Bentham, and Vaihinger), and various other issues. Another set of chapters are oriented toward specific contexts of legal fictions, including the early common law, ejectment actions, Roman law, exclusionary rules, copyright law, tort law, Rabbinic law, securities law, and criminal law.
A collection this varied could easily have lacked coherence. This risk was heightened because contributors were free to define legal fictions in any way they desired. While nearly all jurists would agree that the above mentioned examples are legal fictions, other identifications are debatable. Kelsen identified the “legal subject” or “legal person” as a fiction because it has no real object but involves the personification of a complex of norms; but since there is no falsehood, it might be considered a legal construction rather than a fiction. The classical assertion that common law judges do not make law but merely declare it was tagged a fiction, though it is perhaps more aptly described as an idealization or myth. The treatment of corporations as legal persons is mentioned as a fiction by several contributors, though one might question whether this is a knowing falsehood rather than a legally designated status. Certain legal presumptions were discussed as fictions or as based on fictions, while other contributors sharply distinguished presumptions from fictions. One contributor identified the “reasonable person” test in negligence as a fiction, and another contributor labeled the assumption within contract law of the equality of the contracting parties a fiction. As the notion of legal fiction expands, they appear everywhere in law, and the label begins to lose its analytical purchase.
Despite these potential problems, the collection holds together very well and the overall result is a rich and sophisticated exploration of the topic. The contributors shared a substantial overlap in their basic understanding, so differences in what they construed as legal fictions were useful and thought-provoking. Del Mar’s introductory essay helps hold the collection together by elaborating examples of legal fictions, the types of jobs they do, the different definitions utilized, and various ways fictions are evaluated by contributors.
A few points of general agreement can be found across the essays (albeit not explicit in all). One common sentiment is that, though legal fictions might have a negative connotation as a form of deception, they have important functional benefits, particularly in facilitating legal change and in producing just or equitable outcomes. Another notion apparent in a number of the essays is that law is an artificial system distinct from the social world, possessing its own conceptual apparatuses and technical language, dictates of formality, rationality, and coherence, and modes of operation—and legal fictions arise at various points of contact to manage potential disjunctions between the legal system and society. Viewed in these terms, legal fictions are not truly falsehoods because they are not genuinely proffered by legal actors as assertions of fact (even when they take that form), and within law they are true in so far as they have legal consequences.
What also comes through the essays is the implicit sense that legal fictions are likely to remain a part of law. Valid laws sometimes become obsolete, social values change, and general rules are over-and under-inclusive (applying to situations they should not, and failing to apply to situations they should). The demands of legal formality if always strictly adhered to under these circumstances would prove socially dysfunctional. To effectuate legal change or to achieve justice in a case, a judge can openly declare the existing legal rule will be set aside for compelling reasons—and judges sometimes do that. But this goes against the rule of law ideology, and is particularly problematic in connection with statutes. Thus, judges resort to legal fictions. A strong case can be made that to work properly a system of formal legality needs legal fictions, even if they are not officially embraced.
While the central focus in the collection is on fictions in law, fictions also play a prominent role in legal theory. Hans Kelsen’s Grundnorm is a fiction. Hercules is Ronald Dworkin’s fictional super judge. (P. 37.) Though none of the contributors mentioned it, Joseph Raz’s assertion that law claims moral authority is based on a fictional personification of law (whether Raz recognizes this is a fiction is an open question). As is the case with law generally, fictions are used in legal theory to provide or impose coherence, uniformity, or systematicity that is otherwise lacking.
There is much to be learned from thinking about legal fictions, and this collection goes a long way toward plumbing these insights.