Aug 9, 2023 Barbara Levenbook
Many readers are aware that arguments by Ronald Dworkin (in particular, his argument from theoretical disagreement) and by various persons claiming that social practices cannot be normative challenge the idea that law is founded on a social convention. More than forty years ago, Gerald Postema attempted to meet these objections with a Humean-Lewisian account of foundational legal convention. Marcin Matczak contends that another, virtually overlooked, and radically different account of conventions can surmount these objections. That account can be found in the works of Ruth Millikan. Millikan’s account, he argues, can ground a foundational-convention theory of law while avoiding the pitfalls of a Lewisian account of conventions.
Matczak’s first and most developed point is that, using Millikan, arguments from the contestability of conventions (i.e., from disagreement) do not undermine the claim that legal systems rest on a foundational convention for recognition of valid law. This conclusion follows from three surprising features of Millikan’s account of conventions: (a) neither universal nor general compliance is required for a type of convention suitable for law, (b) participants need not have mutual expectations, know others’ intentions and preferences, or be aware of the purpose of a convention, and (c) conventions do not set prescriptive rules governing future conduct. These three features fly in the face of a number of orthodoxies about conventions in general or legal conventions in particular. Nonetheless, I find them appealing.
To be clear, Millikan does hold that conventions require some (unspecified) amount of compliance. On Millikan’s view, conventions arise and are retained when certain behavioral patterns, reproduced by others, are effective in benefitting these persons or the group. Compliance is required in order to (a) form a pattern that can be followed and (b) be functional enough to generate “proliferation.” Proliferation occurs according to a kind of invisible hand mechanism (akin to biological selection) when the convention is useful, serving what Millikan calls its “proper function.” Proper function, it should be noted, need not have a moral dimension. Proper function has something to do, directly or indirectly, with “fitness” and putting “the participants in a better position vis-à-vis the world they are navigating.” (P. 167.)
Instead of prescriptive rules, conventions are lineages of copied behavior, where tokens of behavior take on the role of precedents (without the “intermediate step” of a postulated rule). Applying this conception of conventions to Hartian positivism, Matczak remarks that the so-called “rule of recognition” as a convention would then not be a prescriptive rule but rather “a series of acts of recognition [by officials of a valid rule of local law, e.g.] … copied one from another and forming a historical lineage.” (P. 155.) Strictly speaking, there is no foundational rule of recognition, save a descriptive one for the practice so far. There is rather a recognitional practice.
So from whence come disagreements? One of Matczak’s accounts of the source of disagreement is founded on his view of precedent-following, which in an “easy case” amounts to doing the same thing in “obviously similar” circumstances. There can be disagreement when the circumstances are not obviously similar about how similar they are and with respect to what “features” that similarity is to be judged.
To understand another source of disagreement, recall that a convention’s value in fulfilling a proper function need not be consciously apprehended by those who conform to it. However, the value might be; and there can be arguments for “defections” on the grounds of improving or retaining the conventions’ benefits (fulfilling the proper function). One result of applying this theory to the recognitional practice in law, Matczak suggests, is that that practice can be discursive. Another result, Matczak claims, is that the practice can and should include the “rules” or “canons” of interpretation that are disputed in a legal system.
Matczak further contends that Millikanian conventionalism can explain how conventions can be normative. For this, Matczak uses Millikan’s idea of proper function. The idea that the normativity of a convention for its participants stems from its effectiveness in achieving something of value or fulfilling a function is not new to Matczak, of course. But surprisingly, conventions are not instrumental in value on Millikan’s view; their value does not come from being a means to something good external to them. Their value is internal. Their proper function is constitutive of them, determining which behaviors in an ongoing practice are relevant or irrelevant.
The article is not perfect. Millikan’s account of the value of conventions is evolutionary at heart; ultimately, the value of conventions is survival value. Matczak does not make the link clear between recognitional legal conventions and survival value. His detailed discussion of the recognitional convention and his selection of its proper function and type of convention are difficult, if not impossible, to reconcile with common law legal systems in general (recognizing unlegislated common law doctrine) and the U.S. system, with its judicial review of legislation on constitutional grounds, in particular.
Nonetheless, Matczak’s article is both intriguing and important. Its importance does not lie solely in his demonstration of advantages of Millikan’s theory over the dominant Lewisian account in meeting challenges raised by Mark Greenberg, Leslie Green, Julie Dickson, Scott Shapiro and Joseph Raz. Matczak’s suggestion of a shift to Millikan’s account requires the rejection of well-established theories on which at least two legal philosophers base key elements of their accounts of law: David Lewis on convention (the Postscript H.L.A. Hart) and Michael Bratman’s planning theory (Shapiro).
In sum, Millikan’s account of conventions involves a rethinking that is worthwhile if the account has the advantages Matczak claims it has for a positivist theory of law. For this reason, this article is worthy of serious consideration.
Jul 27, 2023 Michael Green
Fernanda Pirie’s Beyond Pluralism: A Descriptive Approach to Non-State Law offers a nuanced and well-reasoned assessment of the movement — among those we can call legal pluralists — to expand the concept of law to include non-state forms of social ordering. Legal pluralists are a heterogenous group and it is dangerous to make any generalizations. But Pirie has certainly identified a theme among some legal pluralists. She has two main arguments, one critical and the other constructive.Her critical argument is that legal pluralists’ conceptual project is largely motivated by normative concerns — “to counter colonialism and its legacies, and to highlight ways in which states disregard the rights and interests of Indigenous people” — that are independent of the descriptive aims of legal theory, which is “simply to clarify what law is and does.” (P. 2.) Her constructive argument is to offer — as an alternative to the pluralists’ normative concept of law — her own descriptive concept, based on a sophisticated method of conceptual analysis. Like the pluralists’ concept, her concept encompasses non-state law, but in a more limited fashion.
Let me start by offering my own (admittedly lengthy) version of the critical argument, before adding her nuance. The law of the United States has done a bad job accommodating Native American forms of social ordering. But broadening the concept of law won’t change American law practices. All it will do is redescribe as law the forms of social ordering that American law practices ignore. Indeed, there is reason to believe that conceptual reform would frustrate the pluralists’ goals. To reform American law — or even to identify it as a set of standards to be ignored or resisted — one needs to focus on what is, in fact, American law. The pluralists’ broader concept of law interferes with that focus.
The heart of the error Pirie identifies is the assumption that a general concept of law (as used by philosophers or social scientists) is important to those engaged in law practices, in the sense that judges and other officials seek to enforce the standards that fall under the concept. If they did, then reform of the concept would alter their practices. But they don’t. Sure, officials generally enforce what is, in fact, law (according to a general concept of law). But they don’t enforce it because it’s law. To quote Raz:
Suppose we are discussing the putative law established by some government in exile over a country which it does not control, or where its control is minimal, and suppose that its judges discover that by the correct legal theory their system is not a legal system, for it lacks the necessary characteristics of control. This may make them decide to resign, or rebel, though I can see little reason why it should. The point is that their duty (under the system in whose courts they sit) is to judge in accordance with the rules of that system, and it matters not at all whether these rules are legal ones…
To be sure, there is also a system-specific concept of law that would be used by the judges Raz describes. They would, for example, draw a distinction between the rules of their system, which are law, and facts that are relevant in applying those rules. But they would not regulate their adjudication to conform to some general concept of law, a concept that is intended to identify the law of various communities.
Legal pluralists are not the only ones to mistakenly think a general concept of law is relevant to law practices. The mistake pops up constantly in the philosophy of law. It stands behind Ronald Dworkin’s so-called semantic sting argument against H.L.A. Hart. (The quotation from Raz is taken from a discussion of Dworkin.) And positivists can make the mistake just as much as natural law theorists. Consider the criticism that legal positivism encouraged German jurists to enforce Nazi law. Let’s assume that the critics are right: German jurists reasoned (roughly) as follows: “The Führer’s will is law [according to positivism], therefore we ought to enforce it.” The critics argue that the solution is a different concept of law. But that simply repeats the German jurists’ error of treating a general concept of law as relevant to law practices. The truth is the German jurists’ legal inference is invalid even under a positivist theory of law. “X is law [according to a general concept of law], therefore we ought to enforce it” was not a correct inference under German law practices at the time. (Indeed, it is not a correct inference according to the law practices of any legal system that has ever existed.) It was not German law practices to enforce law (under a general concept of law) but to enforce the Führer’s will.
There is one area (near and dear to my heart) where a general concept of law is somewhat relevant to law practices, namely choice of law — that is, choosing standards for cases that implicate foreign jurisdictions. Indeed, the term “choice of law” suggests that a general concept of law is essential to the enterprise. In many ways the term is misleading — it is often more accurate to say that a standard borrowed from a jurisdiction’s law is applied, and the choice-of-law inquiry is far more complicated than simply identifying and applying standards that fall under a general concept of law. But these (and other) qualifications aside, choice of law is indeed one area where a general concept of law is employed in law practices.
Nevertheless, this limited relevance of a general concept of law is a contingent fact about those practices. Jurisdictions could have choice-of-law (or, more accurately, choice-of-standard) rules that don’t use the concept at all. It is a state’s law practices, not a concept of law, that leads the state’s courts to choose state law over non-state forms of social ordering. Just as the problem in Nazi Germany was German law practices, not the positivists’ concept of law, so the problem that motivates the pluralists’ conceptual project is the law practices of current states, not a state-centric concept of law.
To repeat, choice of law aside, legal officials do not employ a general concept of law in their law practices. So who does use such concepts? Private citizens, sometimes. But, unsurprisingly, they are most relevant for those whose job it is to study the law of various communities — such as law professors, historians, sociologists, and anthropologists.
Now for Pirie’s nuance. She recognizes that there is a place for what the philosopher Sally Haslanger calls “ameliorative” conceptual projects, which aim to “enhance our conceptual resources to serve…critically examined purposes.” Concepts serve our needs, and an ameliorative approach offers a new stipulation of a concept’s content so it will better align with what our needs should be. (P. 8.) Assume states’ choice-of-law rules have been reformed to select non-state forms of social ordering just as often as they select state law. If so, the general concept of law used in choice of law might evolve to incorporate the non-state standards. That’s a charitable reading of the legal pluralists’ conceptual project: the concept of law they offer is one that would better serve these new law practices. But it is also possible that a general concept of law would be abandoned as irrelevant to conflicts cases. What were once called choice-of-law rules would now be called choice-of-standard rules. In any event, such an ameliorative project remains different from determining how general concepts of law are currently used.
One might think that once our minds are set on identifying the content of our current general concepts of law, the primacy of state law will once again rise to the fore. But now for the constructive part of Pirie’s argument. Defaulting to state law would uncover what Haslanger calls our manifest concepts — the concepts we think we are currently applying, relying on abstract intuitions. If we ask people what law is, they’ll start talking about state law. But such intuitions are unreliable. To determine our operative concepts of law, we need to use what Haslanger calls a “descriptive” approach.
Haslanger relies upon theories of semantic externalism that were originally used for natural kind terms — to explain how “water” can mean H2O, even though our manifest concept might be something like potable, colorless, odorless liquid. She extends this semantic externalism to social kind terms like race. Those who dismiss social constructionist accounts of race as changing rather than capturing the concept of race, she argues, are relying upon the manifest concept of race.
Pirie uses the same method concerning law. Although capturing the social kind that is law will not involve the same methods as identifying natural kinds, it still proceeds through empirical engagement — through the application of the concept to concrete cases. Pirie is an anthropologist, and it is truly refreshing to see actual examples of non-state social ordering. Engaging with these examples, she argues that what helps identify an item’s status as law is not its function: to resolve disputes and maintain social order. Law should instead be identified by its form. She calls this form legalism — the use of general and impersonal rules that are divorced from the concrete social relations within which the disputes arise. She points to sophisticated methods of dispute resolution in a Tibetan village that are not legalistic and other Tibetan tribesmen with highly legalistic standards that were oddly divorced from the practicalities of mediating conflict. And she argues that the motivations to adopt legalism can be independent of the goal of guiding behavior and resolving disagreements. In the Tibetan tribesmen’s case, the law arguably served as a symbol of tribal integrity.
Whether Pirie’s conceptual project has succeeded, according to the descriptive method she employs, is tied to whether her concept is supported, in a holistic manner, by concrete anthropological judgments. Although her focus on form over function seems to me to capture something important, I’m no anthropologist and so can make no credible assessment of whether she has captured the social scientific kind that is law. But if she has, her approach opens up fascinating questions concerning state legal orders, including which of their norms are law (in this social scientific sense) and what role states’ attachment to legality plays.
My positive response to her article is from a philosophical perspective. I think her critical argument against legal pluralists’ normative conceptual project is on the money. Same for her sophisticated approach to conceptual analysis. I also think greater exposure to a detailed social scientific concept of law is healthy for legal philosophers, for it can motivate them to clarify the relationship between the social scientific concept and the concept of law they investigate — the one that generates theories of law like positivism, Dworkinian interpretivism, the moral impact theory, and Kelsenian non-reductivism.
Thanks to Brian Bix, Fernanda Pirie, and Andrew Halpin for helpful comments.
Jun 9, 2023 Thomas Bustamante
At the outset of The Proof, in a passage that grasps the spirit of the book, Frederick Schauer writes:
It would be nice if there were world peace and nonfat bacon, but wishing won’t make it so. … Leaving to others questions about how we or the government ought to act, this book is an attempt to provide some insight into how we do – and, yes, should – confront the factual questions and controversies that are all around us. (P. 4.)
Schauer’s intriguing book analyzes a vast range of subjects related to the practice of giving and evaluating evidence, covering topics such as probability analysis, burdens of proof, statistics, testimony, lie detection, expert evidence, and scientific evidence in criminal law. But only two of the topics covered in the book will occupy my attention now: his hybrid theory of evidence, and his concern about motivated reasoning.
Let us begin with the general account of evidence provided in chapters one and two. A central concern of the book is the need to distinguish between “empirical reality” and “what some or many people prefer or wish that empirical reality to be.” (P. 1.) Evidence matters only for those who want to make sense of this distinction, and who worry about getting the truth of some matter. Evidence is what provides “a justification, or warrant, as philosophers are prone to put it, for believing that something is true – or false.” (Pp. 4-5.) It is, therefore, the “prerequisite for judgments of truth (and falsity)” about anything. (P. 5.)
But how should we go about to discover the truth of some disputable fact? Schauer’s general answer is based on a Bayesian account of probability and inductive reasoning. “The very idea of evidence,” he argues, “is about inductive reasoning and thus about probability.” (P. 13.) Contrary to the hope of finding a direct and infallible way of grasping the factual reality, Schauer argues that “evidence comes in degrees.” He mentions a well-known adage from Dr. Theodore Woodward, a famous researcher in medical studies from the 1940’s: “When you hear hoofbeats, think horses, not zebras.” The point of the adage, Schauer argues, “is that horses are far more common than zebras, at least if we are not in a zoo or on the African savanna”. (P. 15.)
Schauer avoids spending much time on discussing the formal details of Bayes’s theorem, but he emphasizes its point that evidentiary reasoning is incremental: “Nonformally, Bayes’ theorem is about the way in which additional evidence incrementally (or serially) contributes to some conclusion.” (P. 24.) We begin with an estimate or some ordinary assumption about the likelihood of some conclusion, which on Bayesian terminology is called prior probability or, for short, the prior. (P. 24.) As people find or are given further evidence, “they consider each new piece of evidence and readjust the probability of their earlier conclusion upward or downward to produce the posterior probability.” (P. 25.) All evidence, “or at least almost all evidence” has, thus, a double aspect: “It is typically based on other evidence, and it is also evidence of something else.” (P. 24.)
One of the central ideas of this model, as Schauer emphasizes, is that that “beliefs come in degrees” (P. 28), and consequently we should think of evidence as being capable of being “stronger than” (or “weaker than”) other evidence with which it may happen to compete. At this point, Schauer’s Bayesian model faces an objection. “On a pure Bayesian approach, what we do when it is time to reach a conclusion is to see where we are at that stage in the process of Bayesian updating. Each incremental item of evidence adjusts the probabilities, and at the moment of decision…we make a decision based on the probabilities at that point.” (P. 31.) But one can argue that this approach is too narrow, as the supporters of the “inference to the best explanation” model suggest. According to this approach, developed by Gilbert Harman and further enhanced by Peter Lipton, “the evidence for (or against) some conclusion is not evaluated incrementally. Instead, all of the evidence is evaluated holistically, with the aim of seeing which explanation best explains what we have to that point obtained.” (P. 31.)
Schauer replies, however, that there is no inconsistency between the incremental approach defended by Bayes and the holistic approach defended by Harman and Lipton, and attempts to develop a hybrid model of evidence assessment that incorporates insights from both accounts. It conceives our reasoning process as comprising two stages: an incremental step, in which we assess the facts in order to gather evidence for or against a certain conclusion; and an inferential step, in which we synthesize the conclusions in the previous step to integrate our findings with the bulk of the evidence and our experience as a whole. (Pp. 32-33.)
Schauer’s solution enables us to see that there is something to learn from both approaches. While the first approach (incrementalism) does the work of collecting and gathering the inferences, the second approach (holism) does the work of processing them and making sense of the knowledge we accumulated, explaining the inferential relations between the evidence we collected and the body of experience we possess. It is only at this second stage that our assessment of evidence is complete, since it is only at this phase that we can make sense of how our perception and our inquiries fit in the body of knowledge we accumulated and in the whole body of experiences we have.
We can move now to the second issue that I want to discuss in Schauer’s book. The most persistent concern in Schauer’s book is the problem of constraining our own perception and preventing our cognitive mistakes. Schauer is worried about the destructive potential of what he described, following an influential literature on psychology and human behavior, as the problem of motivated reasoning. This problem emerges because “although most of the factual world successfully resists adapting to our preferences, often, and perhaps surprisingly, our perception of that factual world does conform to our preference” (P. 227), leading us to perceive only the reality that we would like to be.
The stronger the preferences of the observer and the greater the consequences of the assessment, the more serious this problem turns out to be. Motivated reasoning occurs not only when we are discussing moral judgments and controversial issues about thick ethical concepts. It appears also in every kind of disagreement about evidence and factual assessments, including our disagreement about “hard, plain facts” like the fact that Elvis is dead, or the fact that the Earth is round and revolves around the sun, or the fact that Biden won the American election of 2020, or the fact that vaccines are effective against COVID-19. (Pp. 226-28.) The basic idea of motivated reasoning, as Schauer explains, “is that the receipt and evaluation of evidence…is heavily influenced by normative preferences about what it would be good for the evidence to show.” (P. 228.)
Why do people look at reality, including when there is a vast amount of evidence for a simple fact, and see only what they want to see? Schauer has a specific chapter about this question, where he discusses at length the possibility of mistaken identification in the case of eyewitness or first-person participants in certain events. (Pp. 129-44.)
He gives reasons for skepticism about the distinction, which is widely accepted among lawyers in the civil law tradition, between “direct” and “indirect” (or “circumstantial”) evidence for a certain fact. In response to this claim for a special status for direct evidence, Schauer aptly demonstrates that “the law wisely knows no such category” like circumstantial evidence: “That a defendant with motive to kill a victim was in the vicinity at the time and place of the murder may be stronger evidence than an eyewitness identification by a witness with poor eyesight from a great distance on a foggy night, and stronger than a partial fingerprint taken by an inexperienced police investigator.” (P. 245.) He takes, however, a step further than this conclusion, revealing a deeper problem in the ordinary preference of lawyers and some legal scholars for “direct” evidence: the very attempt to distinguish between direct and indirect evidence is based on an unjustified preference for immediate sensorial perception over articulated inferences and an uncritical belief that a “first-person experience” provides a more reliable or better evidence for a certain fact. (P. 136.)
Outside legal discourse, for instance, it is “a tedious consistency” to find statements that claim some sort of special epistemic authority for the observers who bear some personal feature or special relationship to a set of facts. As Schauer reports in his readings of long series of letters to the editors of newspapers with wide circulation, ‘a remarkably high percentage of them begin in the same way, with an “As a…”: “‘As a retired firefighter,…”’ ‘As a college student,…’ As a recent immigrant,…’ ‘As a descendant of grandparents who died in the 1918 influenza epidemic,…’ And so on and on and on. (P. 136.)
The point about the “as a” condition, in these sentences, is to raise a claim that one’s assessment is “more reliable” or “better evidence” because of the letter writer’s “first-person experience.” (P. 136.) Nonetheless, this claim to some “special testimonial, and thus evidential, weight to participants solely because they were participants” is often undermined. “It is not clear that simply being a participant is necessarily a source of greater knowledge or greater insight. For one thing, being there can be distorting as well as enlightening.” (P. 137.) In Trump’s second impeachment trial, for instance, the allegation of some members of the US Congress who “saw little need for witness or other evidence,” because “they were there” and would be better off by delivering judgments based on their “own experience,” for instance, was described by Schauer as a particularly apt example. (P. 130.)
Schauer’s overall argument about evidence is based, in fact, on the opposite view. For his hybrid model of evidence assessment to work, one must be able to rely on a background system of assumptions, commitments, previous knowledge, data, and interpretations which allows us to trust in certain generalizations about how events can be causally related and how our experience can be ordinarily interpreted.
Our reliance on previous experience depends, therefore, on these generalizations, which play the role of grounding inferences in inductive reasoning, according to the same pattern of “ordinary” or “common inferences” like the inference that a noise from the hoofbeats near a farm comes from the neighbor’s horses, rather than from a large number of zebras escaping from a zoo that is dozens of miles away. Generalizations produce a ground for inferences from ordinary assumptions that constitute an “essential feature of our reasoning process.” They provide a focus for our evidence assessments, and establish the ways in which an alleged piece of evidence becomes relevant in any given case. (P. 30.)
Nonetheless, Schauer believes that our generalizations should not be based only on our own perception. While reliance on rules, past experiences, scientific discoveries, common sense assumptions, regularities, previous evidence and perhaps other materials that constitute our body of knowledge and experience is crucial, Schauer shows us in the last chapter of the book that there is some value in distrusting something that our “natural” or “initial” impulse would be to treat as infallible: our own perception.
Given the prominence of motivated reasoning, the mechanisms of which are the subject of detailed analysis in the final chapter of the book, Schauer is inviting us to distrust ourselves, to look for an external ground in our evidence assessments, one that reaches out for empirical evidence and verifiable inferences, instead of feelings, senses, perception, and intuition. Perhaps this warning against the failures of human perception, especially in the case of first-person reasoning about particular facts, is the greatest lesson we can take from the book. We need rules of evidence, just like we need science, legal process, and a vast range of procedures through which we test our own convictions in light of public assessment of others who have the power and the responsibility of judging them, in order to be able to trust ourselves.
The elucidation of this value (of distrusting ourselves) is a great achievement. The awareness of the possibility of motivated reasoning, including in the case of our own reasoning, and of the limits of human rationality, is a prerequisite for any kind of reasoning about a factual inquiry, whether this inquiry is performed in legal settings or in political ones; in fact, it is a prerequisite for rationality whether we are talking about sports, science, journalism, weather prediction, philosophy, history, or, like Schauer puts in the title of his fascinating book, “everything else.”
May 10, 2023 Andrew Halpin
In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.
The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.
The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25).
Barzun’s analysis is, however, more subtle in two respects. First, he reveals that the philosophical approach adopted by each of the two Harts attempts not to resolve but to overcome the dilemma. Herbert’s ordinary language philosophy “dissolves” the Essential Dilemma by a careful explication of linguistic usage (Pp. 22-23). Henry’s pragmatism, on the other hand, embraces both horns of the dilemma by insisting that (objective) theoretical reasoning is “driven by [subjective] practical concerns”, which require an individual “decision about what to believe or what to do” (P. 23). So, it appears, “the dilemma just reflects a linguistic confusion, so neither horn need be (or ought to be) chosen.” Alternatively, “the dilemma is inescapable and yet irresolvable, so that, in some sense, both must be chosen.” (Pp. 23-24.)
Yet, secondly, he points out that neither attempt to dispose of the dilemma is credible, and this leads to its simply resurfacing as a conflict between “a theoretical problem about what to believe there is in the world or…a practical problem about what to do”. (P. 25.) Irrespective of how the dilemma is portrayed, the diagnosis that the dilemma has not gone away is convincing, as is Barzun’s insistence on the conflicting approaches adopted towards it by the two Harts. This brings us to another major theme developed in the article, the impact of a prevailing intellectual culture.
Barzun suggests that Herbert’s emphasis on an internal legal point of view became dominant and affected the reception of Henry’s understanding of law (Pp. 16-17), so as to lose sight of Henry’s ambition to provide “an ‘Olympian’ – one might even say a philosophical – perspective on law” (P. 18); and his insistence on treating law as a prudential science. (Pp. 26, 31.) This provokes Barzun to turn the tables and imagine how Herbert’s approach might have been received if it had been subjected to a prevailing view based on Henry’s priorities. (Pp. 20, 26.)
Having adopted Henry’s insistence on examining law’s capacity to provide practical guidance, the result of Barzun’s thought experiment is to conclude that Herbert’s work is shown to be “a work of profound ambivalence as to the power of law to compel obedience.” (P. 26.) In particular, Herbert is incapable of producing a sound account of legal obligation in normative terms. (Pp. 27-28.) And this is reinforced by Herbert’s own private doubts expressed in his notebooks. (P. 28.) However, Henry, judged by his own lights, fares little better, failing in his efforts “to accommodate both scientific and moral knowledge.” (P. 28.) Nevertheless, in Barzun’s judgement, Henry comes off the better for openly dealing with the problem, even to the point of making it integral to his pragmatist philosophy. (Pp. 28-29.)
At this point in the article, Barzun turns to Schlegel, and, in a nice vindication of his dominant intellectual culture thesis, Barzun illustrates how Schlegel’s viewpoint could be made compatible with Henry’s, despite the former’s recorded distaste for it. (Pp. 31-34, 41-42.) Barzun’s loose description for the culture he would prefer to dominate is humanist-pragmatist. (P. 42.) It is explained more through applications to the Essential Dilemma, enhanced by resources drawn from Schlegel. This expands the scope of the article to cover the nature of disciplines, and particularly the discipline of law (Pp. 29-33, 39); a reflection on what a good legal education might look like (Pp. 32-36); asides on the limitations of CLS scholarship (Pp. 35-36, 38-39); and a confrontation of the role of historians in legal history (Pp. 36-38). This opens up a broader profile of the academic as producing perspectives that are “partial and potentially distorted” while prone to mundane objectives in making a living (P. 38); yet capable of enjoying a kind of integrity within the “craft” of a discipline (P. 39), subject to admitting that academic pursuits “are all simultaneously decisions about what to do and what to believe.” (P. 40.)
From the pragmatist perspective he espouses, Barzun considers “the Essential Dilemma is just part of the human condition” but, as such, an opportunity for “productive and creative thought.” (P. 35.) However, confronting it in this way, according to Schlegel, can be disturbing for those who do, due to the dissonance between “deep moral convictions” and “equally deep doubts as to how they could ever rationally justify those convictions.” (Pp. 35-36.) Furthermore, any creative critique, given the implicit limitations on knowledge, is at best tentative: “the ground from which one launches the attack is always vulnerable to crumbling underneath.” (P. 38.)
So where is the fun in that? Clearly from the response of John Henry Schlegel at the same event, it lies in having the freedom to think in ways that might otherwise be prohibited by authorities with an interest in keeping established ways of thought unchallenged. Still, that might raise a secondary dilemma for those who have thus overcome the Great Dilemma. How can we be sure that our practice of this freedom of thought is creative and fruitful for others, rather than an exercise in mere self-indulgence? After benefitting from Barzun’s extensive discussion of the first dilemma in this article, it would be unfair to expect anything more on the second – but to regard that as a subject for further work might not be considered incompatible with the approach taken in the present article.
Cite as: Andrew Halpin,
Hart Surgery, JOTWELL
(May 10, 2023) (reviewing Charles L. Barzun,
The Tale of Two Harts; A Schlegelian Dialectic, 69
Buff. L. Rev. 9 (2021)),
https://juris.jotwell.com/hart-surgery/.
Apr 5, 2023 Emad Atiq
In criminal cases, the prosecution bears the burden of proving the defendant’s guilt “beyond a reasonable doubt” (“BRD”). But it is not entirely clear what this standard requires. Courts routinely strike down attempts by prosecutors and judges to define (say, in terms of degrees of confidence or the probability of guilt) what counts as reasonable doubt. Moreover, pure statistical evidence is often deemed insufficient for proof beyond a reasonable doubt, even when such evidence suggests an extremely high probability that the defendant is guilty. The BRD standard’s resistance to definition or quantification invites explanation.
Sarah Moss offers an intriguing account: proof beyond a reasonable doubt requires knowledge, and knowledge is similarly resistant to definition and comes apart from probable truth. Moss’s analysis touches on several aspects of legal proof in both criminal and civil trials, but I’ll focus my comments on two suggestions that struck me as especially promising.
Drawing on observations by David Lewis, Moss argues that whether an agent knows P depends on whether the agent is able to rule out a set of “relevant” possibilities inconsistent with the truth of P. The “relevance” of a possibility is determined by, among other things, its salience in a given context. Hence, if belief beyond a reasonable doubt in the defendant’s guilt requires knowledge of the defendant’s guilt, the factfinder must rule out all and only those possibilities of innocence that are contextually relevant/salient. But this suggests that attempts to define “unreasonable doubt” by appealing to irrelevant possibilities (e.g., conspiracy theories involving the government) are counterproductive precisely because (a) such attempts make salient scenarios that the jury wouldn’t otherwise consider in the absence of the instruction, and (b) by making such scenarios salient, the instruction threatens to artificially raise the standard for knowing the defendant is guilty. As Moss puts it:
The problem is that the more we say in an effort to spell out the difference between reasonable and unreasonable doubts, the more we call attention to the possibilities that jurors shouldn’t be considering. As Lewis might have put it, the more we risk “destroying” the knowledge that would have sustained a conviction. (P. 7.)
Notably, the history of the BRD standard seems to support Moss’s explanation of its indefinability.
Are the relevant possibilities in a criminal trial—those that have a kind of “natural” salience for the factfinder—an arbitrary set? Not at all. Moss suggests that salience and relevance are partly determined by the stakes in a given context—that is, the practical consequences of believing a falsehood or failing to believe the truth. In fact, this feature of knowledge—its sensitivity to the stakes—plays a central role in Moss’s account of the law’s treatment of statistical evidence.
Moss begins by pointing out that the law doesn’t always deem pure statistical evidence insufficient for establishing guilt or liability (a fact sometimes obscured by the literature on statistical evidence). A paradigmatic example of insufficiency involves 25 attendees of a sports event who are charged with gatecrashing based on the evidence of only one ticket being sold. For any given individual, the odds that she gatecrashed are very high (0.96) but convicting her solely on that basis seems inappropriate despite the high odds, given the salient possibility that she is the one innocent person who bought a ticket. Moss contrasts the scenario with cases where corporate defendants are held civilly liable for causing harm to plaintiffs who purchase defective goods based solely on market share evidence (evidence that the defendant serves 90% of the demand for the goods).
Moss suggests that this difference is explained by the fact that the stakes determine whether statistical evidence secures knowledge, and the stakes differ in the two scenarios. In the gatecrashers case, the possibility that any given defendant may have bought a ticket looms large, and so knowing that the defendant is guilty requires ruling out the possibility that she bought a ticket (which one cannot do based on statistical evidence alone). The possibility is salient precisely because the case highlights the fact that convicting all 25 individuals is guaranteed to result in a wrongful conviction and because convicting innocent persons is a very bad outcome. By contrast, the possibility that the corporate defendant might not have sold the precise good that caused the plaintiff’s injury does not loom as large, since imposing civil liability on innocent corporations does not seem as morally bad. Moreover, the structure of the market share cases does not guarantee an instance of wrongful liability.
There is much more to Moss’s fascinating discussion than I’ve captured in the above summary, and I encourage others to read Knowledge and Legal Proof in its entirety. But I’ll make three observations based on the points I’ve highlighted.
First, a central challenge for the view that legal proof requires knowledge (one that Moss considers) is the implication that, since knowledge is factive (one cannot know P if P is false), innocent defendants who are convicted of a crime could not possibly have been proven guilty beyond a reasonable doubt. That is, a jury cannot know—and, if Moss is right, believe beyond a reasonable doubt—that a defendant is guilty who happens to be innocent, no matter the strength of the evidence against him. This is so even if the jury might be justified in believing that the defendant is guilty. Moss largely concedes the implication and argues that it is not so theoretically costly, though I suspect intuitions will vary.
Second, some of Moss’s insights about the way that practical stakes influence a standard of proof seem separable from the question of whether legal proof requires knowledge. Suppose BRD invites the factfinder to have not knowledge, per se, but rather a level of confidence in the defendant’s guilt that is morally sufficient given the practical stakes (e.g., convicting the defendant of a specified crime, issuing a sentence of life without parole, and so on). Then, what BRD requires of the factfinder ends up being highly sensitive to context. And this context sensitivity makes offering a general, context-invariant definition of the standard difficult as well as misleading. Moreover, a view along these lines appears to have the same upshot for the gatecrashers case as Moss’s account. The moral stakes—in particular, the risk of a wrongful conviction—rule out convicting the 25 defendants based on pure statistical evidence. Likewise, the view may permit the imposition of liability on corporate defendants based on pure market share data (because the moral stakes aren’t as high). I wonder whether there are reasons for preferring an account of legal proof in terms of knowledge over one that relies on something like “morally sufficient confidence” (the latter avoids the dicey implication I mentioned above).
Third, Moss’s arguments draw attention to features of our ordinary epistemic practices that lawmakers ought to consider but generally don’t. There is a growing body of literature pointing out that a failure to account for the stakes-sensitivity of the standards that govern belief-formation results in biased criminal procedures. If what counts as belief beyond a reasonable doubt depends partly on the practical stakes, then there are arguments to be made in favor of (for instance): (a) reconsidering the practice of shielding jurors from information about the consequences of conviction; (b) greater flexibility in the forms of evidence we consider relevant to prosecuting different kinds of crime; and (c) granting criminal defendants the constitutional right to argue that the jury should reconsider at sentencing any “residual” doubts it may have had during the conviction phase, since doubt that’s unreasonable in the context of a conviction may be quite reasonable in the context of sentencing (a right that the Supreme Court has consistently failed to recognize).
Mar 1, 2023 Sean Coyle
Eleanor Curran’s excellent book, Rethinking Rights, surveys the philosophy of legal rights, its history and current importance. The book’s purpose is “to examine the history of rights theory and the effects of that history and how it has been written, on how philosophers think about rights today….” (P. xiii.) Thus the book concerns, not a theory of rights, but a theory of rights theory. The book examines a number of modern theories of rights, in particular the analysis of rights due to WN Hohfeld. This analysis is employed as a means of investigating historical conceptions of rights, especially that of Hobbes; the author claims that the analysis at best only partially captures Hobbes’s sense of “‘right”. Whilst a proof of this would be an interesting philosophical result, the author does not explore until much later modern theories (of Nigel Simmonds and, perhaps, HLA Hart) which limit the Hohfeldian analysis to certain types of private law rights: Hohfeld’s analysis was never intended to capture all types of right, especially not those manifestations of rights-analysis that are premodern or early modern. Similarly, the author examines the two dominant theories of rights at the present day, the will theory and the interest theory, claiming that neither properly encompasses all kind of right. Though interest theorists and (to an extent) will theorists would resist such a claim, it could be argued that both theories represent particular regimentations of ordinary discourse about rights; rather than such theories failing to capture certain types of rights discourse (as the author suggests), there is an alternative explanation: that rights discourse itself is incoherent. Some discussion of such a possibility would have been welcome.
The main lines of argument in the first section of the book owe a debt to Brian Tierney, which is acknowledged in the Preface. And indeed the book’s second sentence repeats a history of rights propagated by Tierney, namely that the period from the late-medieval to early modernity is characterized by a shift from so-called “objective” right to the now more familiar “subjective” right. (Pp. xi, 4.) Much has been written which casts doubt upon this alleged shift, a version of subjective right appearing, for example, in Aquinas’s Summa Theologiae (II-II.57.1c) in the thirteenth century. (I do not personally subscribe to belief in the early modern origins of subjective rights; everything Grotius says of substance about rights is anticipated by Aquinas (Id. at IIII.57.1 ad 1)). The author understands the early modern writers, Hume in particular, to have “devastated” the philosophical justification of earlier doctrines of natural rights, a judgment not shared by a sizeable number of modern philosophers who expose the misunderstandings in Hume’s own premises (see Finnis, Natural Law & Natural Rights at 33-42). But a greater concern is the author’s tendency to regard Ockham, Aquinas, Grotius and Locke as belonging to a single and undifferentiated tradition, and thus for example to treat Locke as offering a “classical” theory of rights. (P. 6.) Such a classical theory is based on natural law, “which exists outside those it commands, and sets out what is morally right (and wrong)….” (P. 9.) This does not correspond to the natural law accounts of the major theorists, including Grotius and Locke, for whom natural law is not “outside” the person but is a “participation of natural law in the rational creature” (Aquinas, Summa Theologica at I-II.93.2c), and is not primarily concerned with right and wrong but with the good and the bad (Id. at III.94.2c).
Grotius is presented as a secular natural law theorist, in common with other commentators, though with more caution than most. (Pp. 13-14.) This is on the strength of his famous etiamsi daremus passage, translated here as that “if God did not exist, natural law would still be true.” (P. 14.) This is not in fact what Grotius says. He says that “even if we assume (what cannot be assumed without the uttermost wickedness) that God does not exist or that human affairs are of no concern to Him, what we have been saying [viz about natural rights] would retain somewhat the same status [locum aliquem]…” (“somewhat” not “completely”). The author alleges that Grotius is the first writer to base natural law on philosophical rather than theological premises. A brief glance at Aquinas’s treatment of natural law in the Summa Theologiae and elsewhere suffices to falsify this idea. Grotius is in any event not the secular figure of common mythology: a myth perhaps perpetuated by the fact that his constant and painstaking references to Biblical and sacred texts have been stripped out of most modern editions of his work.
The main purpose of the book is to differentiate individual rights from generic group rights or those based on function. The book traces the history of subjective/individual rights through the early modern period to the present, charting Hume’s and Bentham’s criticisms of natural rights and underlying doctrines, as well as Finnis’s debunking of those criticisms. The author asks: will this make any difference to the history of natural rights theory? And answers, rather curiously, no, on the ground that natural law theories are unlikely to be accepted by mainstream audiences in the conditions of modern western societies. (P. 35.) The avowed intention to offer a history of a history of natural rights theories cannot wholly absolve the author from an account of the truth of such arguments: the fact that philosophical tribalism means that most philosophers believe X is much less important than whether X is true, after all.
The core of the book is an argument against the use of Locke’s natural rights theory as the paradigm for a modern individual rights theory (one the author sees as entrenched in modern minds) (P. 39) in favour of Hobbes’s theory (43ff). The author provides some interesting discussion of Hobbes on natural right, though she argues that the foundation of such rights, for Hobbes, is liberty (P. 53); actually the ultimate foundation of rights in Hobbes could be found in fear, or at least the circumstances which bring about fear in the quasihypothetical natural condition. There follows a lively discussion of the extent to which Hobbes’s views on rights marry up with modern notions of rights, which proceeds (P. 65 n.1) to a discussion of how philosophy underwent a “jurisprudential turn” with regard to rights, centring particularly on the work of Hohfeld, which is detailed (P. 67 n.1) and criticised as not a universal analysis of rights. (P. 79 n.1.) There are in total three chapters on Hohfeld, which provide some interesting analysis of both its historical and present-day importance. Any discussion of Hohfeld that offers some new perspectives on his work is both unusual and welcome, especially if it challenges current orthodoxy. Among the limitations the author finds in Hohfeld’s analysis are two that, oddly, modern theorists would take to be strengths: its separation of right from liberty, and its excision of any notion of value from the concept of right. (Pp. 99, 115-16; 125-28.)
The book’s second part turns away from historical concerns and offers an assessment of the jurisprudence of rights. It concludes with a pair of chapters on the philosophy of rights. The first (chapter 7) offers a good summary of the major positions within rights theory (will and interest theories etc) and is thus far useful though unremarkable; but it is distinguished by an interesting thesis of the grounds of human rights which function akin to Finnis’s basic goods: agency/autonomy, fundamental interests/dignity, basic needs, a good life. (Pp. 130-34.) Here the author arguably blurs the line drawn earlier between “individual” rights and group rights, for the grounding of human rights (at this point under discussion) does nothing to pick out individuals and are referable to general characteristics: perhaps the author could elucidate the distinction in future work. The final chapter argues for a fourfold distinction among rights: (i) rights of assertion (roughly corresponding to Hohfeld’s claim-right); (ii) rights of aspiration (roughly Hohfeldian liberty but on a grander scale, to include e.g. the right to freedom of expression or the pursuit of happiness); (iii) rights of self-preservation and wellbeing (those required to uphold the possibility of a minimally decent life); and (iv) rights of legal or social organisation (rights unlike (i)-(iii)) that are not bestowed purely in virtue of the humanity of their holders but on the basis of social group membership). (Pp. 144-47.) There is scope in future work for the author to flesh out these ideas, and it is to be hoped that she will do so. For the moment, the book concludes by completing the discussion with which the book started: with the analysis of the concept of individual right.
There is much in this book to contest, but it is never less than vividly thought-provoking, and its discussion is always stimulating. Its relative brevity should encourage readers to engage with its clearly-forged and economically expressed doctrines, and anyone wishing to gain familiarity with the territory of modern rights theories and their history can be well advised to read it.
Jan 25, 2023 Edward Rubin
David M. Driesen,
Does the Separation of Powers Justify the Major Questions Doctrine? (2022), available at
SSRN.
The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder.
His article begins by locating the major questions doctrine in the landscape of statutory interpretation. The doctrine is often viewed as an exception to Chevron deference. Chevron holds that the courts, when reviewing an agency’s implementation of a statute with ambiguous language, should not interpret the statute de novo, but rather defer to reasonable agency interpretations. There is at least some justification for denying such deference when a major question of public policy is at stake. As Professor Driesen points out, however, current use of the major questions doctrine involves statutes that unambiguously place an issue within the agency’s jurisdiction. Rather than a return to de novo interpretation, what the Court does in West Virginia is to ignore the plain meaning of the statute, along the lines advanced in Church of the Holy Trinity v. United States. That 1892 decision rejected the literal language of the statute on the basis of its title, its coordinate provisions, its structure, its legislative history and general policy considerations that seem out of date today (“this is a religious people”) but were not a bad way, at the time, to discern legislative purpose. The current Court bases its rejection of plain meaning, however, on its own dislike of regulation and the increased power of administrative agencies.
Congress enacts various statutes that rename federal buildings, establish historic sites or adjust the tariff on an exotic product, but its significant impact, and the focus of its legislative efforts, is, in fact, on major questions – in recent years, health care, protection from pandemics, the stability of the financial system, and climate change. These questions are also the focus of Congress’ ongoing interaction with the administrative agencies that implement the legislation, consisting of oversight hearings, annual appropriations, and continuous staff level contacts. Moreover, major questions involve matters that are necessarily complex; they require administrative expertise and members of Congress know this when the draft the statute. They are also matters that change and evolve over time as a result of changing circumstances. Professor Driesen points out that these are precisely the matters where the Supreme Court should hesitate to interject its own interpretation of the statute into the complex, evolving relationship between our two policy-based branches. Intervention of this sort does not enforce the separation of powers. Rather, it effaces the separation that should be maintained between these policy making bodies and the federal judiciary. That is particularly true when the Court is not interpreting the language of the relevant statute, but rather imposing its own idiosyncratic views.
Another overly familiar and thus readily forgotten insight of the Legal Process School is that judicial invalidation of a statute enacted by elected representatives is counter-majoritarian. This principle has aroused some skepticism when invoked to deny relief in human rights cases, but it should be understood as resting upon Carolene Products Footnote Four. That is, the Court can validly intervene, and is not being counter-majoritarian, when the political process itself is not majoritarian, either because all coalitions exclude a disparaged minority or because of defects in electoral procedures. In recent years, however, these are precisely the areas where the Court has refused to intervene, denying protection to criminal defendants, eviscerating the Voting Rights Act, and declaring partisan gerrymandering non-justiciable. As Professor Driesen argues, the Court’s most aggressive interventions have been taken against decisions that can be described as hyper-majoritarian. We can question whether technical or minor legislation (in the 117th Congress, for example, the Planning for Animal Wellness Act or the Artificial Intelligence Training for the Acquisition Workforce Act) ever attracts enough attention from anyone but special interest groups. Such statutes can only be characterized as majoritarian on an institutional basis; they were enacted by a representative legislature. But climate change, like health care costs, pandemic disease and financial stability, are the basic content of political debate in our nation. If any issues determine people’s votes, it is these. The specific issue at stake in West Virginia is an oncoming environmental catastrophe that may require abandonment of our coastal cities or the construction of trillion dollar sea walls, devastate American agriculture, kill millions of people in escalating heat waves or apocalyptic storms and endanger the stability of our political system in the process. Professor Driesen’s article properly admonishes the Court for constructing a clear statement rule, unsupported by any real constitutional concern, that takes decisions about this subject away from the people’s representatives and places it in the hands of a few judges with an instinctive but unjustified hostility to the governmental mechanism that gives us our best chance to avert the disaster.
Dec 14, 2022 Felipe Jiménez
Courtney M. Cox,
The Uncertain Judge, 90
U. Chi. L. Rev. __ (forthcoming 2023), available at
SSRN.
The received wisdom about adjudication is that all a conscientious judge needs to decide a dispute is a sound grasp of the facts of the case, sufficient knowledge of the applicable legal materials, and a theory of adjudication to go with them. In The Uncertain Judge, Courtney Cox argues that this received wisdom is incomplete. At least in some instances, she claims, (i) judges might be uncertain about whether their preferred theory of adjudication is correct, and (ii) different theories of adjudication would lead to inconsistent outcomes. In such a situation, judges face a problem of normative uncertainty.
This problem, as Professor Cox argues, is a “meta-problem.” As long as we believe judges can be coherently criticized in certain ways, the problem is real, whatever theory of adjudication or jurisprudential view we think is correct. The problem, as she writes, “floats on top” of first-order jurisprudential debates. (P. 3.) And, as she argues, in the circumstances of normative uncertainty, the judge cannot simply stick to their guns and insist on their preferred theory, precisely because they are aware of the possibility that it might be the wrong theory.
The upshot of the problem is that, sometimes, it might be irrational for the judge to follow their preferred theory. A conscientious yet uncertain judge should, in other words, take into account the likelihood of different theories being right and the cost of error—under each such theory—in the specific case. Given these considerations, for instance, a conscientious yet uncertain textualist might be rationally required to decide like a purposivist.
The implication of Cox’s argument is that the evaluation of judicial decisions occupies at least two distinct levels: the jurisprudential and the rational. (P. 7.) Thus, we can either criticize a judge for not doing what, as a matter of law, they should have done, or we can criticize them for not doing what, as rational beings acting in conditions of uncertainty, they should have done. These two oughts—the legal and the rational—can come apart, as she illustrates with her analysis of Google v. Oracle.
The problem, as Cox argues, is somewhat similar to the parallel problem of uncertainty in the moral domain. She notes, however, that there is an important difference that makes the legal case much more complex: judges do not make single, one-off particular decisions. They have to decide by taking into account previous decisions and the impact of their decision on future cases. (P. 11.)
A key notion in Cox’s argument is the idea of a judge’s “jurisprudence.” A judge’s jurisprudence is their overall theory of adjudication: it will include, as Cox writes:
Theories and beliefs about constitutional interpretation and construction; the appropriate method of statutory construction; the importance and application of stare decisis; the scope of and limits on judicial discretion; the relevance of political, moral, or prudential considerations; methods for resolving legal uncertainty generated by conflicts of law, indeterminacy, or changed circumstances; appropriate aims in judging, and, as relevant, the nature of law itself. (P. 15.)
It turns out that no matter how complete and articulated a jurisprudence might be (and, as Cox notes, in many cases it’s plausible to imagine that most judges have only an incomplete, perhaps inchoate jurisprudence), the problem of normative uncertainty is theoretically inescapable. In other words, it might be empirically more or less rare, but its existence is always theoretically possible.
Professor Cox’s paper introduces a new and important problem into legal philosophy. The article also makes a sophisticated and compelling case that the problem exists and is important, deliberately avoiding offering a fully worked-out solution. I think this is the right strategy, given the complexity of the problem. Still, Professor Cox suggests one model for what a solution might look like: an approach that attempts to maximize the expected correctness of judicial outcomes, built on the basis of an analogy with expected utility theory. As Cox notes, however, such a model faces an important problem given the difficulty of inter-theoretic comparison.
There are, also, multiple future avenues for theoretical development that Professor Cox opens up. The first group of potential further questions includes further debate about whether the problem of legal normative uncertainty in fact exists; its relationship to moral uncertainty; its connections to questions about judicial duty; and whether the problem does, in fact, exist under any jurisprudential view, or whether some views might just transform the issue into a problem of first-order moral uncertainty. The second avenue for further inquiry is, as she already suggests, the development of mechanisms for coping with normative uncertainty in legal decision-making.
There is a third potential development too, into research and reflection on the cultural and sociological conditions that foster normative uncertainty, as an empirical matter, in particular legal systems. In this aspect, it seems to me that, if Professor Cox is right about the theoretical possibility of normative uncertainty, some peculiarities of the American legal system—with its focus on individual judges and styles of judging, the role of political and ideological considerations in judicial appointment, and the lack of a bureaucratized and centralized judicial training and selection regime—make it particularly apt for a high degree of normative uncertainty. This, incidentally, suggests another potential avenue for further research: perhaps the (partial) solutions to normative uncertainty are not just individual decision protocols, as Professor Cox’s example suggests, but also institutional mechanisms and cultural practices that reduce the significance of judges’ personal idiosyncrasies—and therefore that reduce uncertainty by restricting the choice set of jurisprudences.
In sum, we seem to have a potential problem. At the least, Professor Cox has given us reason to wonder whether the problem is indeed there and how to cope with it. And she has done so through a thoughtful and carefully constructed argument.
Nov 16, 2022 Larissa Katz
Aziz Huq,
Property Against Legality: Takings after Cedar Point, 109
Virginia L. Rev. __ (forthcoming 2023), available at
SSRN.
There is a nearly universal assumption in contemporary property theory that clearly defining property rights in terms of exclusion enhances rule of law virtues of clarity, stability and predictability. And there is a corresponding assumption that a rival account, according to which property is a malleable bundle of rights, undermines those same values. Judicial discretion is the main target of this prevailing view: a bundle of rights approach invites courts to configure the content of the “bundle” of rights in socially optimal ways. While there is much to be said for engineering property rights to advance social goals, this can be said against it: it leaves participants in the legal order—litigants, potential trespassers or buyers, even judges—in the dark about what the relevant rights and duties are.
In Property Against Legality, Aziz Huq provides doctrinal and theoretical grounds to doubt this dominant assumption: a stronger right to exclude, he argues, may erode legality. (P. 42.) His point of departure is a recent US Supreme Court case, Cedar Point Nursery v. Hassid. Cedar Point concerned the constitutionality of a California “take access” regulation allowing union organizers to approach agricultural workers on company property three times a day. (P. 16.) The Court concluded that “take access” legislation was an appropriation of the right to exclude third parties—a taking per se. Much of Huq’s article provides a close analysis of Cedar Point itself, which he characterizes as a sharp break from settled takings law. (Id.) He argues that the decision puts property and legality in conflict for two related reasons: (1) it undermines the methodological foundations of takings doctrine by deviating from “ordinary meaning,” (P. 20) “original understandings,” (Pp. 22-23) and “applicable precedent;” (P. 26) and (2) it will lead to more arbitrary power in future, by expanding judicial discretion and enhancing arbitrary private power to decide matters affecting the core interests of other people.
While Cedar Point is widely seen as a victory for proponents of a strong right to exclude, Huq argues that the victory is pyrrhic. On Huq’s account, Cedar Point strengthens the right to exclude at the expense of the rule of law. How do exclusion and legality come apart? The answer Huq gives has more to do with the nature of legality than the nature of exclusion. On Huq’s account, the Cedar Point decision leads property and legality to diverge in a complex way, with rules directed at officials, including judges, becoming more uncertain and rules directed at some citizens (owners) becoming less so. Legality may be unevenly distributed across the constitutional order, with heightened legality in one set of institutions and diminished legality in others. Rules that constrain official action may suffer from a lack of clarity, predictability and stability as a result of a decision like Cedar Point even as rules that guide the conduct of individual citizens become clearer and more predictable. The lesson Huq wants us to draw from Cedar Point is that more protection for the right to exclude can lead to more arbitrary power, even if less of it is in the hands of the legislature and the executive. The net result, he argues, is a constitutional order with strong private property rights that weaken, rather than bolster, rule of law virtues. (Pp. 38-39.)
One of the most vibrant contributions of the article is its emphasis on a quiet form of privatization: the retreat of the state from the public sphere, leaving decisions concerning the fundamental interests of some (farm workers), including their rights of association, to other private actors (farm owners) to decide. Cases like Cedar Point effectively drives the state out of its proper regulatory sphere by forcing it to pay owners for regulation that limits the right to exclude (without any corresponding obligation to pay nonowners for the failure to regulate, protecting owners by limiting nonowners’ freedoms of association and speech). As Huq put it:
By elevating property rights above other entitlements of constitutional magnitude, and by allowing the state to intrude on property only to protect property (not other human goods), Cedar Point ushers into being a constitutional dispensation in which the state is materially deterred from protecting personal interests other than property. (P. 42.)
Cedar Point restrains state power by protecting property rights against state incursions, Huq concedes, but it does so at the expense of other entitlements that protect individuals against arbitrary private power: the Cedar Point farm workers’ associational and dignity rights will be impaired. (P. 42.) Even if Cedar Point increases private property owners’ protection from arbitrary state power, it did so by incurring a net larger increase in vulnerability of individuals at the hands of private power. (P. 43.) And Cedar Point increases arbitrariness even if the analysis is restricted to state action: because private property protections enhance owners’ power to call on state resources to enforce their right to exclude, stronger property protections enhance the unequal allocation of state violence. (Id.)
Teeming with insights and provocative, Huq’s account of property and legality has left me with three related questions: (1) Can property rights ever serve as a constraint on the arbitrary exercise of public power—even if they might not in a post-Cedar Points world? (2) Can the apparent divergence Huq observes in legality (less clarity and predictability in property’s secondary rules for officials and more rule of law virtues in its “primary rules” for citizens) be explained in terms of greater complexity in exclusion? (3) Is judicial discretion to determine the line between appropriation and regulation as problematic as Huq makes it out to be? I will elaborate on each of these questions in what follows.
(1) Is Property Even Potentially a Constraint on Arbitrary Public Power? While Huq’s article takes aim at the claim that a robust right to exclude always bolsters legality by limiting arbitrary power, he does not appear to question that it can do so. But the idea that private property rights could serve to align public power with the rule of law –rather than simply to limit the scope for public decision-making—strikes me as itself deeply mistaken. Private property rights decentralize power by putting private actors in charge of setting agendas for things. That can be seen as shrinking the sphere for public decision-making. But the diffusion of power does not in itself assure the quality of the power left to the state, and, specifically, its alignment with the rule of law. Private property rights are neither necessary nor sufficient to guarantee that the state uses whatever power is left to it for proper (that is, non-arbitrary) purposes. In a world without private property rights, the state would have vastly more power but might still be subject to constraints on the use of public power for improper purposes (such as non-public ones.) And a world with private property rights, the state might uphold a strong right to exclude and yet still, in the sphere of jurisdiction left to it, exercise its power arbitrarily, in the manner of a capricious tyrant. Public power is not aligned with the rule of law from the outside, by making (legal or illegal) state action more expensive, but from the inside, by a constitutional order setting out the state’s mandate and by jurisdictional limits that require the use of public power just for the purposes for which it is conferred.
(2) Does a greater complexity in property’s primary exclusion rules account for the apparent divergence between primary and second-order legality that Huq identifies, post-Cedar Point? “Exclusion” in US property law is on some accounts itself bifurcated, operating in the context of government-individual relations as a right to compensation vis-à-vis the state and as an exclusive right of control and use vis-à-vis private actors in the context of private relations. Legality may not diverge in respect of primary and secondary rules but in respect of kinds of exclusion—weakening legality for both primary and secondary rules in respect of “exclusion” in the context of government-individual relations even as legality remains strong for exclusion in the context of private relations. This would explain away a puzzle I had reading Huq’s article: it seemed likely that any uncertainty judges face in drawing the line between an appropriation and regulation post-Cedar Point would have a corresponding effect on the clarity and predictability of any individual owner’s claim for compensation for an “appropriation” of the right to exclude. There may not be a divergence, then, between primary and secondary legality in respect to property rights vis-à-vis the state: both become less clear and predictable. By the same token, it seems like Cedar Point does not engender any new uncertainty either in primary rules or in secondary rules relating to the rights of owners vis-à-vis third parties. Owners will have to abide by state law, including any take access legislation, whether or not they have a right to compensation. Judges post-Cedar Point will have no more (or less) discretion in determining whether a third party has authorization to enter the owner’s land than they had before and will face no more uncertainty in respect of how to decide a trespass action or how to apply state regulation in a particular case.
Primary and secondary legality may have suffered post-Cedar Point in respect of “exclusion” rules vis-à-vis the state while remaining robust in respect of exclusion rules vis-à-vis private actors. That would mean that primary and secondary legality are aligned, and there is only a divergence in legality for both primary and secondary rules across the different kinds of “exclusion.” Miinding the divergence in exclusion across different legal contexts might make sense of the divergence in legality that Huq identifies.
(3) Is judicial discretion to classify a limit on exclusion as appropriation vs regulation the problem? One reason that Huq gives for the rupture between property and legality post-Cedar Point is the increased judicial discretion it ushers in. Cedar Point replaces a settled distinction between appropriation and regulation with a novel definition of appropriation that is indeterminate and functionally indistinguishable from regulation. (P. 9.) In Huq’s view, the pre-Cedar Point takings doctrine that distinguished between appropriation and regulation was easy to apply and generated predictable outcomes. Post- Cedar Point, while it seems like owners can expect to win more cases as regulation is classified as appropriation, it is unclear when or why judges will classify a regulation as an appropriation. That leaves the decision up to judicial discretion—erasing any rule of law gain from a more robust right to exclude.
I wondered whether judicial discretion in drawing the line between appropriation and regulation is the right target for Huq. Montesquieu thought that if a public decision is not mechanistic, it is arbitrary. That, however, is not a plausible view of legality nor the one I take Huq to hold: The rule of law does not require the elimination of discretion. The application of abstract principles to particular cases,may not be fully predictable without becoming arbitrary. Clarity, stability and predictability are virtues for the law to approximate. It is unnecessary unpredictability in public office that is a vice. Huq acknowledges the difficulty in rooting out the diminished legality of decision rules directed at judge precisely because the judicial role involves contestable judgments about the proper path of the law. (P. 41.) That suggests to me that Huq’s proper target is not judicial discretion in respect of the classification of a limit as an appropriation vs a regulation, but rather the weakening of judicial tools for the proper exercise of that discretion.
Oct 17, 2022 Brian Bix
Paul Miller offers a manifesto for an approach to private law—more precisely, for theories of doctrinal areas within private law–that is both traditional and quite new. In his new article, The New Formalism in Private Law, he names the approach, “New Private Law Theory” (and I will follow his practice of abbreviating it “NPL”). It is grounded on a rejection of the sort of reductive, cynical, and skeptical approaches to law and legal rules associated with American Legal Realism, and it promotes a more internal (less instrumental) understanding of law.
Miller offers the following as the essential positive claim of NPL. “[P]rivate law contributes to the law’s wider essential function: providing practically reasonable normative guidance to its addressees through authoritative resolution of conflict and coordination issues that face a political community, thereby enabling the community to realize its aspirations to legality.” (P. 178, emphasis omitted.) NPL focuses on both form and substance, and on both the institutional nature and the normative claims of (private) law: i.e., that “legal systems are historically iterated, constructed normative systems, and that these systems claim practical authority over their addressees.” (P. 179.)
The article is worth close reading just for its very useful overview of the sometimes overlapping, sometimes contrary uses of “formalism” in American legal scholarship over the decades. The article nicely summarizes many of the theories labeled “formalist” by either their authors or by critics. (Pp. 179-95.)
Miller summarizes the features of NPL: including judges acting in good faith; the value of “legality” as such; close attention to doctrine and legal structures; and a concern with the systematicity of law. (P. 196.) NPL also emphasizes certain categories of legal form through which law structures behavior: status, holdings, transactions, relationship, and associations. (P. 205.) At the same time, Miller insists that such internal interpretations of law should not be confused with or “slide[] into apologetics.” (P. 235.)
Miller’s response to the cynical view that law is just a pretense offered for judicial decisions reached for other (extralegal) reasons or based on hidden motives is to note that this is a descriptive claim, subject to empirical verification or falsification, while objecting that the cynical view offers no normative guidance on what law should do and how legal officials should act. (Pp. 212-13.) For NPL, the prescription for judges is straightforward: “act in good faith and giv[e] effect to the law.” (P. 214.) NPL recognizes that judges sometimes act in bad faith, and that sometimes political or social culture may encourage this, but according to NPL these are defects to be fought, not worldly wisdom to be celebrated. (Pp. 214-15.)
NPL’s focus on “practical reason as guided by law” (P. 209) shows how the approach might be understood as a sort of middle path between classical American Legal Realism, on one hand, and the “legal dogmatics” of traditional continental European jurisprudence, on the other. Like many Legal Realists (in particular, Karl Llewellyn), NPL focuses on how law, interacting with other forms of normativity, affects actual behavior. On the other side, modern legal dogmatics (pure doctrinal thought) assumes that there is a truth about law which we can discover, but tends to be less concerned about effects the law has in the world, or how (in the terms of NPL) law fits into our practical reasoning. NPL’s rich sense of “legality” borrows from ideas developed by Lon Fuller back in the 1960s (Pp. 198, n.237) and also from more recent writings, like those of David Dyzenhaus (n.197, n.217; see also Paul B. Miller, The Long Arc of Legality (2022)) to develop this middle path.
Perhaps it is not a coincidence that the idea of taking doctrine seriously can be found both in “the new formalism” of the New Private Law (P. 222) and the movement known as “the New Legal Realism.”
After a period in which it was often said that “we are all legal realists now,” perhaps we are coming full circle, to an enriched understanding of “formalism” as no longer a mere pejorative, but rather as a label for serious and complex efforts to determine the distinctively legal way that doctrinal categories and structures can and should guide the behavior of judges and citizens subject to law.
