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.
In “hard” appellate cases, legal disputants sometimes offer moral considerations. Legal experts seem to back up claims about what the law is on a particular point with moral argumentation (whether or not explicitly posited legal material, such as a statute or a written constitutional provision, mentions moral considerations, one might add). One antipositivist argument credits the disputants with choosing epistemic arguments that reflect metaphysical truths, and concludes that the law depends at least in part on moral facts.
A familiar legal positivist response is that appearances are deceiving. The disputants are supporting a claim about what the law should be by moral argumentation, because the law at this point is indeterminate. Yet that’s not what many disputants would say, as their use the language of discovery suggests. To borrow an idea from Leiter, the positivist either concludes that the disputants are disingenuous (perhaps because the conventions of legal argumentation require them to appear to argue only about antecedent law) or that legal practitioners, legal scholars, and legal officials misunderstand what they are doing when they rely on moral argumentation. But how can so many experts be so mistaken? That’s what Plunkett and Sundell explain, and they do so plausibly, without denigrating the knowledge, honesty, or intelligence of the expert practitioners.
The authors do not challenge the appropriateness of moral language in a legal dispute. They challenge the assumption that the moral language is used to make a claim about a moral fact, and the assumption that the dispute is about what the law (antecedently) is. Both assumptions are incorrect, say Plunkett and Sundell; and thus, one cannot conclude that moral facts establish the law from the mere fact that moral language is used in legal disputes in hard cases.
Instead, moral language is used to make a proposal about what a moral term should mean in the context, where its meaning in this context and for these (legal) purposes is underdetermined. That is, a moral word or phrase is used metalinguistically. The proposal is communicated, not by the literal content of the language used, but by the pragmatic content. (For more on what the authors call “metalinguistic negotiations,” see the December 10, 2014 Jot by Connie Rosati.) The authors offer no examples of legal cases fitting this description, though they give examples of legal issues turning on determining what a (nonmoral) term means. Perhaps “fundamental fairness” (involved in Gideon v. Wainwright) would do.
Why do the disputants think otherwise? First, disputants in a metalinguistic negotiation generally do not recognize when they are communicating pragmatically, since they don’t usually have intuitions subtle enough to distinguish between literal and pragmatic ways of communicating. When the legal question seems to hinge on the way an expression (“use as a weapon,” “fundamental fairness”) is applied to the facts of a case, the disputants will think they are arguing over some first-level matter—e.g., whether the defendant’s action with the weapon was a use, whether fundamental fairness is violated by the absence of counsel for a defendant in a criminal action.
Disputants are instead arguing in the second case about whether the absence of counsel should be held to violate fundamental fairness (and so, due process, and so, the U.S. Constitution). Ordinarily, the reasons pertinent to that dispute are pertinent to the issue of what the expression “fundamental fairness” should mean in this context. This is the second reason. At this point, the difference between the projects becomes uninteresting to the participants. They are correctly aware that they are arguing about a constitutional right to counsel, but the difference between applying a determinate “fundamental fairness” and precisifying an indeterminate “fundamental fairness” doesn’t matter to them.
If a legal question turns on the application of some expression and that expression is indeterminate at a point, the legal positivist can claim the law is indeterminate. So the disputants’ debate isn’t, then, about what the law antecedently is, but what the law should be (on that point).
This account nicely explains why sometimes when the disputants are using moral language in a hard case, they erroneously think they are arguing about moral facts and what the law is. Unfortunately, the authors fail to address all the kinds of cases the antipositivist offers. The account nicely fits cases that the disputants agree turn on the application of a term (from statute, constitutional provision or something canonical in the common law) that is a moral term or whose application ordinarily requires moral reasoning (“unreasonable risk of harm”). But what shall the positivist say when this isn’t true and there is moral argumentation in a judge’s opinion—e.g., in Riggs v. Palmer? When only one of the disputants turns to moral language, the dispute doesn’t seem to be about determining an indeterminate moral expression. Perhaps the authors would call this, as they did in their article mentioned above, a “bedrock legal dispute,” and contend that the metalinguistic dispute is over the phrase “the law.” I’m not persuaded by that move, since there aren’t always explicit claims about “the law” in these conflicting judicial opinions.
To be fair, Plunkett and Sundell disavow the claim that all disputes in hard cases involve metalinguistic negotiations. Nonetheless, one can take from the authors’ general approach the idea of negotiation pragmatically expressed and say that in hard cases in which only some disputants use moral language there are (frequently?) negotiations pragmatically expressed about the identity, extent, and importance of concepts to fit settled law, where the answer has been hitherto indeterminate. This claim could be generalized to other hard cases not invoking moral language. The merits of an expanded approach are well worth investigating by those working on the nature of law and legal disagreement.
Cite as: Barbara Levenbook, Moral Argument in Legal Disputes: Why So Many Are Mistaken
(July 21, 2015) (reviewing David Plunkett and Tim Sundell, Antipositivist Arguments from Legal Thought and Talk: the Metalinguistic Response
, in Pragmatism, Law, and Language
, 56 (edited by Graham Hubbs and Douglas Lind, 2014)), https://juris.jotwell.com/moral-argument-in-legal-disputes-why-so-many-are-mistaken/
“Money is the mother’s milk of politics,” said California pol Jesse Unruh, way back in the 1960s. Benjamin Franklin, in the 1790s, could not have said it more memorably; but wouldn’t it shock us if it had been Franklin, and not Unruh (or Karl Marx) who first said it? The certainty of death and taxes is a hard lesson, but it doesn’t prepare us for the bitter thought that politics is helpless before the power of money.
Students of American democracy have divided on the point. Martin Gilens and Benjamin I. Page assign the principal theories of American politics to four schools: Majoritarian Electoral Democracy, Economic-elite Domination, Majoritarian Pluralism, and Biased Pluralism. Majoritarian Electoral Democracy holds that policy outcomes are determined largely by the views of average citizens. Economic-elite Domination holds that policy outcomes are largely determined by the views of the wealthiest citizens. The two other types of theory focus not on individual voters, but on interest groups. Majoritarian pluralism is the view that policy outcomes are mainly responsive to pressures from mass-based interest groups. Biased pluralism maintains that pressure from business-orientated interest groups is what mainly determines state policy.
Each of these types makes a prediction, and thus is empirically testable, so Gilens and Page posed the natural question: how do they compare as predictive theories of policy outcomes? This is a question that is much easier to formulate than it is to answer. No attempt had ever been made to answer it within a unified statistical framework. So, Gilens and Page and their assistants assembled “a unique data set that includes measures of the key variables for 1,779 policy issues” (P. 564), and performed a series of multivariate analyses. “Who governs? Who really rules?”—the authors report finding that
economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass- based interest groups have little or no independent influence. The results provide substantial support for theories of Economic-Elite Domination and for theories of Biased Pluralism, but not for theories of Majoritarian Electoral Democracy or Majoritarian Pluralism. (P. 564.)
The authors are careful to point out that elite opinion and mass opinion often coincide, and that it could look as if the average citizen is getting her way anyway. But their analysis, they say, shows that to think so would be to mistake “democracy by coincidence” (P. 573) for the real deal. In fact, “the issues about which economic elites and ordinary citizens disagree reflect important matters, including many aspects of trade restrictions, tax policy, corporate regulation, abortion, and school prayer, so that the resulting political losses by ordinary citizens are not trivial.” (P. 573.) We might comfort ourselves by the thought that, as to abortion and school prayer, it might be better if the elites made the call. But that is small comfort if Gilens and Page have indeed discovered that
reality is best captured by mixed theories in which both individual economic elites and organized interest groups (including corporations, largely owned and controlled by wealthy elites) play a substantial part in affecting public policy, but the general public has little or no independent influence. (P. 572.)
Their findings are even more troubling insofar as they merely depict the “first face” of politics, that is, outcomes of overt policy contests. They can only hint at the configuration of the “second face” of political power, i.e., governmental agenda setting; and the “third face,” the shaping of public opinion and preference (P. 576.)
So what? Gilens and Page admit that “Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if still contested) franchise.” (P. 577.) These political and civil liberties are formally equal, at least in large part. But Gilens and Page confirm that what philosopher John Rawls called the “fair value of the political liberties”—a roughly equal chance had by rich and poor alike to affect political outcomes—is demonstrably absent in the United States. As Anatole France wrote, both the rich and the poor are equally forbidden (or permitted, as the case may be) to sleep under bridges. But justice requires more than this. As to the specifically political liberties, merely formal equality is not enough—or so Rawls believed.
Insisting on the fair value of political liberty has consequences. The type of regime Rawls called “welfare state capitalism” guarantees formally equal political liberty but is insouciant about its fair value, and for this reason alone (though there are others) he concluded that a regime of this type cannot realize justice. Some political philosophers have recently contested Rawls’s assumption that the wealthy invariably tend to dominate politics. It cannot, they say, be assumed as a matter of common sense, or as a settled finding of social science, that the wealthy—severally or in combination—have this advantage. That they do is unlikely, given collective action problems; and whether they do or do not is anyway a complicated empirical question, which means that Rawls was wrong to condemn welfare-state capitalism as inherently unjust. If there is a problem, they argue, it is not one that the legislative branch of a welfare-state capitalist regime cannot sort out. Such a regime might, for example, enact laws to insulate politics from money, if the worry about money in politics (beyond quid-pro-quo bribery) is not merely valetudinarian. Valetudinarian or not, the US Supreme Court insists that ensuring the fair value of political liberty is not even a permissible Congressional goal, much less a “constitutional essential.”
Gilens and Page’s paper has been described as “the Piketty of politics”—referring to Thomas Piketty’s Capital in the Twenty-First Century. This is apt, in that it focusses the discussion of inequality on its specifically political effects. Whether Gilens and Page, or the Piketty boom, will have a specifically political effect in the United States is a separate question. But the influence that Gilens and Page can be expected to have is inversely related to the correctness of their findings; and Rawls himself, I am sorry to note, has yet to be cited in any opinion of the Court, dissent, or concurrence. As Rawls wrote:
Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained . . . for when parties and elections are financed . . . by private contributions, the political forum is so constrained by the wishes of the dominant interests that the basic measures needed to establish just constitutional rule are seldom properly presented. (A Theory of Justice 198-99)
“Are seldom”—after the line of cases from Buckley v Valeo to McCutcheon—has turned into “shall never.”
Cite as: W.A. Edmundson, Roll Over, De Tocqueville
(June 19, 2015) (reviewing Martin Gilens and Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens
, 12 Perspectives on Politics
564 (2014)), https://juris.jotwell.com/roll-over-de-tocqueville/