The Value and Purpose of Law: Essays in Honor of M.N.S. Sellers 3515124608, 9783515124607

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The Value and Purpose of Law Essays in Honor of M. N. S. Sellers Edited by Joshua Kassner and Colin Starger

Archiv für Rechts- und Sozialphilosophie Franz Steiner Verlag

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archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechtsund Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M.

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The Value and Purpose of Law Essays in Honor of M.N.S. Sellers Edited by Joshua Kassner and Colin Starger

Franz Steiner Verlag

Umschlagbild: Justitia, Landgericht Ulm Quelle: shutterstock.com / Georg_89 Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2019 Layout und Herstellung durch den Verlag Druck: Beltz Grafische Betriebe, Bad Langensalza Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. ISBN 978-3-515-12460-7 (Print) ISBN 978-3-515-12462-1 (E-Book)

Table of Contents Foreword

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Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

13

1

Joshua Kassner / Colin Starger Introduction

25

2

Richard Bett The Nature and Purpose of Law in Early Greek Thought

31

3

Sanne Taekema Conversations about the Rule of Law: the Public Interest and Law’s Ideals

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Joshua Kassner An Essay in Defense of a Republican Understanding of the Relationship between Liberty and Law

57

5

Marcelo Campos Galuppo Law and Emotion: How Empathy Forms Judges’ Sense of Justice

77

6

Andrés Botero-Bernal A Short History of the Idea of National Law: The Exception Becomes the Rule

93

4

7

8

Véronique Champeil-Desplats Contemporary States of Exception and Rule of Law General considerations from the French State of Emergency November 14th, 2015 – November 1st, 2017

105

Marijan Pavčnik Questioning the Moral Understanding of Law

119

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Table of Contents

Ricardo Guibourg On the Nature and Purpose of Law: What Is It That We Study When We Study Law?

10 Leslie Francis How Should a Feminist Think about Legal Positivism?

125 135

11

Stephan Kirste Law as Transformation

151

12

Gülriz Uygur Law and Injustice in Times of Crisis

171

13

Matthias Mahlmann Constitutionalism and the Idea of Law

187

14 João Maurício Adeodato The “Nature” of Law in a Realistic and Rhetorical Philosophy

203

15

Pierluigi Chiassoni Law as Language and Interpretation

213

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Mortimer Newlin Stead Sellers Some Thoughts on the Value and Purpose of Law

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Contributors João Maurício Adeodato is Professor of Juridical Rhetoric and the Philosophy of Law at the Faculty of Law of Vitoria and Former Full Professor of the Theory of Law at the Federal University of Pernambuco Richard Bett is Professor of Philosophy, The Johns Hopkins University Andrés Botero-Bernal is Professor at the School of Philosophy of the Industrial University of Santander, Colombia Véronique Champeil-Desplats is Professor of Public Law at the University of Paris-Nanterre Pierluigi Chiassoni is Professor of Jurisprudence at the Tarello Institute for Legal Philosophy at the University of Genoa Leslie Francis is Distinguished Alfred C Emery Professor of Law, Distinguished Professor of Philosophy, and Director of the Center for Law & Biomedical Sciences, University of Utah Marcelo Campos Galuppo is Professor of the Philosophy of Law at the Pontifical Catholic University of Minas Gerais and at the Federal University of Minas Gerais Ricardo A Guibourg is Professor Emeritus of the General Theory of Law at the University of Buenos Aires Joshua Kassner is Associate Professor of Philosophy at the University of Baltimore Stephan Kirste is University Professor and Head of the Academic Group of the Philosophy of Law and Social Philosophy at the University of Salzburg Matthias Mahlmann is Professor of the Philosophy of Law, the Sociology of Law, and Public International Law at the University of Zurich

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Contributors

Marijan Pavčnik is Professor of Law at the University of Ljubljana Mortimer Newlin Stead Sellers is Regents Professor of the University System of Maryland and Director of the University of Baltimore Center for International and Comparative Law Colin Starger is Professor of Law at the University of Baltimore School of Law Sanne Taekema is Professor of Jurisprudence at Erasmus University Rotterdam Gülriz Uygur is Professor of Law at Ankara University

Mortimer Newlin Stead Sellers

Foreword Professor Mortimer Newlin Stead Sellers celebrated his 60th birthday on April  21, 2019 These essays mark that occasion and the conclusion of his four years as President of the International Association for the Philosophy of Law and Social Philosophy (Internationale Vereinigung für Rechts- und Sozialphilosophie or “IVR”) Most of the chapters in this volume were delivered as papers at a special meeting of the IVR hosted by the University of Baltimore in July 2018, celebrating Professor Sellers’ 30th year as Professor of the Philosophy of Law The editors of this volume, Professors Joshua Kassner and Professor Colin Starger, are his colleagues on the Baltimore Faculty of Philosophy (Prof Kassner) and the School of Law (Prof Starger) Professor Kassner began his career in the Philosophy of Law as a student of Professor Sellers, almost three decades ago Professor Sellers’ writings on the Philosophy of Law, Social Philosophy, Legal History, Comparative Law, and Constitutionalism led to his appointment as Regents Professor of the University System of Maryland, on April 11, 2003 This volume takes its title from the subject of his inaugural lecture, which found the value of law in its service to justice, the value of justice in its service to society, and the value of society in its service to human nature, which is to say, in large part, to human affection, the most important and useful of the human emotions The papers gathered here pursue and challenge these assertions, investigate arguments that arise from them, and discuss other aspects of Professor Sellers’ scholarship We have invited him to conclude this volume with a valedictory response In addition to his achievements as an author, teacher, and philosopher, Professor Sellers has worked throughout his career as a lawyer, an administrator, and editor As a lawyer with a focus on public, constitutional, and international law, he advised governments and others seeking to reform national legal and judicial institutions or to receive international legal standards into domestic law This led to long associations with South American, European, African, and Asian colleagues, and intensive long-term law reform and institution-building projects in many places, most notably Brazil, Ukraine, and China As Director since 1994 of the University of Baltimore Center for International and Comparative Law Professor Sellers brought numerous scholars, lawyers, judges and public officials from every corner of the world to Baltimore for extended study and sent American lawyers to work with and learn from partners overseas His

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Foreword

Center’ s book series, Ius Gentium, published its 75th volume in 2019 Professor Sellers also edits (with Mark Agrast) the ASIL Studies in International Legal Theory and (with David Gerber) the ASCL Studies in Comparative Law, both published by Cambridge University Press With Professor Stephan Kirste he is editor of the IVR Encyclopedia of the Philosophy of Law. Professor Sellers received his doctorate and civil law degree from Oxford University, where he was a Rhodes Scholar and T H Green Fellow and has enjoyed a recurrent association with University College He received his bachelor’s degree (summa cum laude) and law degree (cum laude) from Harvard University, where he was a Frank Knox Fellow and John Harvard Scholar and received the Edwards Whitaker and Detur prizes He is an elected member of the International Academy of Comparative Law and of the International Association of Constitutional Law Professor Sellers has been the H L A Hart Fellow in Jurisprudence at University College, and a visiting professor at the Lauterpacht Research Center of Cambridge University, Erasmus University Rotterdam, Georgetown University, and the Hague Academy of International Law Romulus founded Rome (we are told) on April 21, 753 B C Professor Sellers was born in Philadelphia on April 21, 1959 This highly appropriate congruence highlights the classical nature of his legal and social philosophy Professor Sellers helped to revive a “republican” concept of law grounded in the common good and social solidarity in the midst of a global legal and political turn towards individualism, domination and cruelty Professor Sellers’ pursuit of global justice has found partners and allies throughout the world His good friends, the contributors to this volume, illustrate the cosmopolitan expanse of his affections Baltimore, April 21, 2019 Dean Ronald Weich University of Baltimore School of Law

Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers Born April 21, 1959 in Philadelphia Professional Career 2003–present 1994–present 2017–2018 2009–2011 2005–2006 2005–2006 2000–2001 2000 1997–2003 1994–1997 1991–1994 1989–1994 1989 1988–1989 1987–1988 1985–1988 1983–1984

Regents Professor of the University System of Maryland Director, University of Baltimore Center for International and Comparative Law H L A Hart Fellow, University College, Oxford Visiting Professor, Georgetown University Law Center Visiting Fellow, Lauterpacht Research Centre for International Law, Cambridge Visiting Fellow, Wolfson College, Cambridge EACLE Professor of Comparative Law, Erasmus University, Rotterdam Visiting Scholar, Hague Academy of International Law Professor of Law, University of Baltimore Associate Professor of Law, University of Baltimore Director, Hoffberger Center for Professional Ethics Assistant Professor of Law, University of Baltimore Lawyer, Drinker, Biddle, and Reath, Philadelphia Judicial Clerk, United States Court of Appeals for the Third Circuit, Judge James Hunter, III Frank Knox Fellow, University College, Oxford Resident Tutor in Law and Teaching Fellow in Classics, Dudley House, Harvard University Lecturer in Latin, Bryn Mawr College

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Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

Education 1987–1988 1985–1987 1980–1985 1976–1980

B C L in Civil Law, University College, Oxford (Frank Knox Fellow) J D in Law, Harvard Law School, cum laude (Fellow of Dudley House) D Phil in Literae Humaniores, University College, Oxford (Rhodes Scholar) A B in History, Harvard College, summa cum laude ( John Harvard Scholar) Professional Activities and Organizations

International Association for the Philosophy of Law and Social Philosophy (IVR) President, 2015-present American Branch of the International Association for the Philosophy of Law and Social Philosophy (AMINTAPHIL) President, 2012–2014 Vice President, 2010–2012 Executive Committee, 2002–present American Society of Comparative Law Treasurer, 2013-present Executive Committee, 2013-present Editor, ASCL Studies in Comparative Law, 2014–present Prizes Committee, 2010-present American Society of International Law Editor, ASIL Studies in International Legal Theory, 1996–present Book Prize Committee, 2014–2016 (Chair, 2015–2016) Association of American Law Schools Section on Comparative Law, Executive Committee, 2003–2004 Section on International Law, Executive Committee, 2000–present (Chair, 2005) Section on Jurisprudence, Executive Committee, 2002–2005 Section on Legal History, Executive Committee, 1999–2004 (Chair, 2003) Section on Scholarship, Executive Committee, 1998–2004 (Chair, 2002) International Academy of Comparative Law Associate Member, 2011–present

Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

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International Association of Constitutional Law Associate Member, 2011–present Editorships Book Series AMINTAPHIL: The Philosophical Foundations of Law and Justice (with Ann Cudd), Springer ASCL Studies in Comparative Law (with David Gerber), Cambridge University Press. ASIL Studies in International Legal Theory (with Mark Agrast), Cambridge University Press Ius Gentium: Comparative Perspectives on Law and Justice (with James Maxeiner), Springer Studies in the History of Law and Justice (with Georges Martyn), Springer

Encyclopedia Editor Encyclopedia of the Philosophy of Law and Social Philosophy (with Stephan Kirste), Springer Journal Editor Associate Editor, American Journal of Comparative Law Editorial Board, Archiv für Rechts- und Sozialphilosophie Editorial Board, Lusíada Direito Editorial Board, Notícia do Direito Brasileiro Publications Books Peace Based on Human Rights (ed with Jose Brito and Gulriz Uygur) (ARSP, 2019) Formal and Informal Constitutional Amendment (ed ) (Springer, 2019) Law, Reason, and Emotion (ed ) (Cambridge, 2017) Parochialism, Cosmopolitanism, and the Foundations of International Law (ed ) (Cambridge, 2012)

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Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

The Rule of Law in Comparative Perspective (ed with Tadeusz Tomaszewski) (Springer, 2010) The Internationalization of Law and Legal Education (ed with Jan Klabbers) (Springer, 2008) Autonomy in the Law (ed ) (Springer, 2007) Republican Principles in International Law: The Fundamental Requirements of a Just World Order (Palgrave Macmillan, 2006) Universal Human Rights: Moral Order in a Divided World (ed with David Reidy) (Rowman and Littlefield, 2005) Place, Memory and Time (ed with Anthony F C Wallace and H Dabbs Woodfin) (Newlin Foundation, 2004) Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State (Palgrave Macmillan, 2003) The Sacred Fire of Liberty: Republicanism, Liberalism and the Law (Macmillan and NYU Press, 1998) The New World Order: Sovereignty, Human Rights, and the Self-Determination of Peoples (ed ) (Berg, 1996) American Republicanism: Roman Ideology in the United States Constitution (Macmillan and NYU Press, 1994) An Ethical Education: Community and Morality in the Multicultural University (ed ) (Berg, 1994) Seminar Volumes Edited A Just World Under Law (International Legal Theory, volume 12, 2006) Agreements (Ius Gentium, volume 12, 2006) Why Obey International Law? (International Legal Theory, volume 11, 2005) Legal Personality (Ius Gentium, volume 11, 2005) International Criminal Law (International Legal Theory, volume 10, 2004) Security (Ius Gentium, volume 10, 2004) Human Rights (International Legal Theory, volume 9, 2003) Federalism (Ius Gentium, volume 9, 2003) The International Court of Justice (International Legal Theory, volume 8, 2002) Truth Commissions (Ius Gentium, volume 8, 2002) Humanitarian Intervention (International Legal Theory, volume 7, 2001) Paritary Rights (Ius Gentium, volume 7, 2001) Rawls’ Theory of Justice (International Legal Theory, volume 6 2, 2000) The Golden Age of International Law (with Francesco Parisi) (International Legal Theory, volume 6 1, 2000)

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Toward a Kantian International Law (with Francesco Parisi) (International Legal Theory, volume 5 2, 1999) Rule of Law in International Relations (with Francesco Parisi) (International Legal Theory, volume 5 1, 1999) Two Mistakes about Democracy (with Francesco Parisi) (International Legal Theory, volume 4 2, 1998) Customary International Law (with Francesco Parisi) (International Legal Theory, volume 4 1, 1998) The Theory of the Firm Applied to International Law (with Francesco Parisi) (International Legal Theory, volume 3 2, 1997) International Relations and International Law (with Francesco Parisi) (International Legal Theory, volume 3 1, 1997) International Law-Making (with Francesco Parisi) (International Legal Theory, volume 2 2, 1996) The Effectiveness of International Law (with Francesco Parisi) (International Legal Theory, volume 2 1, 1996) Articles and Book Chapters “Democracy, Justice and Legitimacy of International Courts” in N Grossman, H  Cohen, A Follesdal, and G Ulfstein, eds Legitimacy and International Courts at p  338 (Cambridge, 2018) “The Purpose of International Law is to Advance Justice” Proceedings of the 111th Annual Meeting of the American Society of International Law at p  301 (2017) “Liberty and Republican Government in America” in Italy in the White House at p  18 (White House Historical Association, 2016) “Law, Reason, and Emotion,” in 101 Archiv für Rechts- und Sozialphilosophie at p   71 (2015) “Niccolò Machiavelli: Father of Modern Constitutionalism” in 28 Ratio Juris at p  216 (2015) “An Introduction to Intervention in International Law,” in 29 Maryland Journal of International Law at p  1 (2014) “The Constitutional Thought of Alexander Hamilton” in Denis J Galligan (ed ), Constitutions and the Classics: Patterns of Constitutional Thought from Fortescue to Bentham at p  354 (Oxford University Press, 2014) “The Roman Republic and the French and American Revolutions” in Harriet Flower, ed The Cambridge Companion to the Roman Republic at p  401 (2d ed , Cambridge U  Press, 2014) “Philosophical Aspects of Republicanism” in the International Encyclopaedia of the Social and Behavioral Sciences 2d ed vol  18 at p  13, 204 (Elsevier, 2014)

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Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

“What is the Rule of Law and Why is it Important?” in Silkenat, Barenboim and Hickey, The Legal Doctrines of the Rule of Law and the Legal State at p  3(Springer, 2014) Reprinted in Goudappel, Flora (ed ), Democracy and the Rule of Law in the European Union: Essays in Honour of Jaap W. de Zwaan at p  3 (Asser, 2016) “What Useful Role Could Legal Positivism Play in the Study of International Law?” Proceedings of the 106th Annual Meeting of the American Society of International Law 373 (2013) “The Justice of International Law” in 3 Transnational Legal Theory 297 (2013) “Universal Human Rights in the Law of the United States”, in LVIII American Journal of Comparative Law 533 (2010), reprinted in Rainer Arnold (ed ), The Universalism of Human Rights (Springer, 2011) “The American Founding Fathers” in Anthony Grafton, Glenn Most and Salvatore Settis, eds The Classical Tradition, at p  367 (Harvard, 2010) “Classical Influences in the French Revolution” in Anthony Grafton, Glenn Most and Salvatore Settis, eds The Classical Tradition, at p  822 (Harvard, 2010) “The Influence of Marcus Tullius Cicero on Modern Law and Politics”, in L Gamberale, ed Cicerone e il diritto nella storia d’Europa: Ciceroniana XIII, at p  244 (Roma, 2009) “The Republican Foundations of International Law” in Samantha Besson and José Luis Martí, eds Legal Republicanism and Republican Law, at p  187 (Oxford University Press, 2009) “Os Fundamentos Republicanos do Direito Internacional Público” in 13/16 Polis: Revista de Estudos Jurídico-Políticos 7 (2008) “Doktrina Precedenta u Sjedinjenim Američkim Državama” in 3 Evropski Pravnik 49 (2007) “The Doctrine of Precedent in the United States of America”, in LIV American Journal of Comparative Law 67 (2006), reprinted in Ewoud Hondius (ed ), Precedent and the Law (Bruylant, 2007) “International Legal Personality” in 11 Ius Gentium 67 (2005) “As Bases da Democracia e Autodeterminação dos Povos no Direito Internacional sob a Perspectiva Republicana” in Claudia Lima Marques and Nadia de Araujo, eds O Novo Direito Internacional: Estudos em Homenagem a Erik Jayme at p  677 (Renovar, 2005) “Economic Sanctions Against Human Rights Violations” in Laura Picchio Forlati and Linos-Alexandre Sicilianos, eds. Les sanctions économiques en droit international at p  477 (Martinus Nijhoff, 2004) “The Value and Purpose of Law” 33 Baltimore Law Journal 145 (2004) “The Roman Republic and the French and American Revolutions” in Harriet I Flower, ed The Cambridge Companion to the Roman Republic at p  347 (Cambridge, 2004) “Ideals of Public Discourse” in Christine Sistare, ed Civility and its Discontents at p  15 (Lawrence, Kansas, 2004)

Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

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“The Right to Secede” in Pluralism and Law: Archiv für Rechts- und Sozialphilosophie Beiheft 89 at p  68 (2003) “The Authority of the International Court of Justice” in 8 International Legal Theory 41 (2002) “The United States of America and the International Criminal Court” (with D M Amann) in 50 American Journal of Comparative Law 101 (2002) “The Legitimacy of Humanitarian Intervention Under International Law” in 7 International Legal Theory 67 (2001) “Republicanism (Philosophical Aspects)” in the International Encyclopedia of the Social and Behavioral Sciences at p  13204 (Elsevier, 2001) “The Law of Peoples” in 6 International Legal Theory 44 (2000) “Elements of International Law” in 6 International Legal Theory 11 (2000) “Republican Philosophy of Law” in Christopher B Gray, ed 2 The Philosophy of Law: An Encyclopedia at p  740 (Routledge, 1999) “The Kantian Theory of Public International Law” in 5 International Legal Theory 43 (1999) “Justice and the Rule of Law in International Relations” in 5 International Legal Theory 26 (1999) “Separatizam i demokratsko pravo u međunarodnom zakonu” in Ćazim Sadiković et al. Državnost Bosne i Hercegovine i Dejtonski Mirovni Sporazum at p  225 (Sarajevo, 1998) “Republican Legal Systems” in Ralf Dreier, Carla Faralli, and Vladik S Nersessiants, eds Law and Politics Between Nature and History at p  205 (Bologna, 1998) “The Right to Republican Government under International Law” in 4 International Legal Theory 44 (1998) “Separatism and the Democratic Entitlement in International Law” in 92 Proceedings of the American Society of International Law 116 (1998) “Why States are Bound by Customary International Law” in 4 International Legal Theory 22 (1998) “Republicanism, Liberalism and the Law” in 86 Kentucky Law Journal 1 (1997) reprinted in Tom Campbell and Adrienne Stone, eds. Law and Democracy (The International Library of Law and Legal Theory Second Series) (Ashgate, 2003) “International Economic Organization” in 3 International Legal Theory 46 (1997) “Princípios republicanos de direito internacional” in 4 Notícia do Direito Brasileiro (Nova Serie) 249 (1997) “International Law and International Relations” in 3 International Legal Theory 9 (1997) “Republican Principles in International Law” in 11 The Connecticut Journal of International Law 403 (1996) “The Sources of International Law” in 2 International Legal Theory 53 (1996) “The Effectiveness of International Law” in 2 International Legal Theory 32 (1996) “Republican Liberty” in Gabriël Moens and Suri Ratnapala, eds The Jurisprudence of Liberty 14 (Butterworths, 1996)

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Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

“The Law of Humanity and the Law of Nations” in 1 International Legal Theory 22 (1995) “American Republicanism” in Kenneth W Thompson, ed Great American Presidents vol  I, p  207 (1995) “The Actual Validity of Law” in 37 American Journal of Jurisprudence 283 (1992) “Republican Authority” in 5 Canadian Journal of Law and Jurisprudence 257 (1992) “Republican Impartiality” in 11 Oxford Journal of Legal Studies 273 (1991) “The Anglo-Irish Agreement” in 27 Harvard International Law Journal 706 (1986) Essays and Commentaries Analysis of three Draft Laws on the Bar of Ukraine, prepared for the Verkhova Rada of Ukraine through the American Bar Association Central and East European Law Initiative and submitted May 11, 2007 Comments on the Draft Judicial Code of the Republic of Armenia, prepared for the Legislature of Armenia through the American Bar Association Central and East European Law Initiative and submitted May 7, 2006 “Reach Out America” in the International Herald Tribune, June 2, 2005 “Time to Kill the Gerrymander” in the Daily Record, December 10, 2004, p  19A “What is the Point of Law School” in the Daily Record, January 23, 2004, p  8A Comments on the Draft Code of Judicial Ethics for the Republic of Bulgaria, prepared for the Legislature of Bulgaria through the American Bar Association Central and East European Law Initiative and submitted July 24, 2001 Analysis of the Draft Law on the Office of Ombudsman, prepared for the Government of the Slovak Republic through American Bar Association Central and East European Law Initiative and submitted July 2, 2001 Comments on the Romanian Draft Code of Ethics for Magistrates, prepared for the Parliament of Romania through the American Bar Association Central and East European Law Initiative and submitted March 15, 2001 Comments on the Draft Law of Ukraine on Refugees, prepared for the Verkhovna Rada of Ukraine through the American Bar Association Central and East European Law Initiative and submitted February 2, 2001 Analysis of the Draft Code of Ethics of the People’s Advocate Institution prepared for the Parliament of the Republic of Albania through the American Bar Association Central and East European Law Initiative and submitted August 21, 2000 Analysis of the Draft Law on the Creation of the State Commission to Check the Background of Officials prepared for the Parliament of the Republic of Albania through the American Bar Association Central and East European Law Initiative and submitted June 2, 2000

Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

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Evaluation of the Draft Law on the High Court prepared for the Parliament of the Republic of Albania through the American Bar Association Central and East European Law Initiative and submitted January 28, 2000 Analysis of the Draft Law on the Organization and the Operation of the High Court of Albania prepared for the Parliament of the Republic of Albania through the American Bar Association Central and East European Law Initiative and submitted July 30, 1999 Analysis of the Draft Constitution for the Republic of Albania prepared for the Constitutional Commission of Albania through the American Bar Association Central and East European Law Initiative and Submitted August 31, 1998 Analysis of the Draft Code of Ethics for Advocates prepared for the Union of Advocates of Ukraine through the American Bar Association Central and East European Law Initiative and submitted June 19, 1998 Analysis of the Draft Code or Fundamental Law of the Gagauz Republic of Moldova prepared for the Constitutional Drafting Committee of Gagauzia through the American Bar Association Central and East European Law Initiative and submitted March  26, 1998 “Think of Your Latin When Hurling Accusations” in the National Law Journal, A19, February 9, 1998 Basic Elements of Legislative Structure prepared for the Constitutional Drafting Committee of Albania through the American Bar Association Central and East European Law Initiative and submitted December 18, 1997 Analysis of the Draft Constitution for the Republic of Belarus prepared for the Constitutional Court of Belarus through the American Bar Association Central and East European Law Initiative and submitted October 15, 1996 Analysis of the Draft Constitution for the Republic of Ukraine prepared for the Ukrainian Parliament through the American Bar Association Central and East European Law Initiative and submitted July 1, 1996 Analysis of the Draft Constitution for the Republic of Albania prepared for the Albanian Parliament through the American Bar Association Central and East European Law Initiative and submitted December 20, 1995 “Nationalism and Internationalism” in 95 Newsletter of the American Philosophical Association 123 (1995) “Term Limits for Senate Thwart Founders’ Plan” in the National Law Journal, April 3, 1995 Analysis of the Draft Constitution for the Republic of Tajikistan, prepared for the Tajikistan government through the American Bar Association Central and East European Law Initiative and submitted October 17, 1994 “Redraw That New Legislative Map” in the Philadelphia Inquirer, Saturday, January 4, 1992

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Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

Reviews “Liberty, Equality, and the Rule of Law,” review of T R S Allan, “Freedom, Equality, Legality” in Jotwell, March 3, 2014 “The Province of Jurisprudence Determined,” review of Robin West, Normative Jurisprudence in Jotwell, November 18, 2011 Review of the National Constitution Center website, in 97 Journal of American History 1195 (2011) “The Legitimacy of International Law,” review of Samantha Besson and John Tasioulas (eds ) The Philosophy of International Law in Jotwell, September 9, 2010 Review of Brian Tamanaha, On the Rule of Law (Cambridge, 2004) in 25 Law and History Review 219 (2007) Review of Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge, 2004) in 99 American Journal of International Law 949 (2005) Review of John Philip Reid, Controlling the Law: Legal Politics in Early National New Hampshire (Northern Illinois Press, 2004) in 91 The Journal of American History 1440 (2005) Review of Wolfgang Danspeckgruber (ed ) The Self-Determination of Peoples:Community, Nation and State in an Interdependent World (Lynne Rienner, 2002) in 11 Nationalism and Ethnic Politics 18 (2005) Review of Cass R Sunstein, Why Societies Need Dissent (Harvard University Press, 2003) in 24 Philosophy in Review 299 (2004) Review of Andrew C Lenner, The Federal Principle in American Politics, 1790–1833 (Madison House, 2001) in 48 The Journal of American History 1512 (2003) Review of David J Bederman, International Law in Antiquity (Cambridge, 2001) in 15 Emory International Law Review 521 (2001) “Doing the Right Thing”, review of Eric A Posner, Law and Social Norms (Harvard, 2000) and of Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (Chicago, 2000) in The Washington Post (Book World, pp  8–9, September 3, 2000) Review of Quentin Skinner, Liberty before Liberalism (Cambridge, 1998) in 19 Philosophy in Review 152 (1999) “Raising a Standard of Liberty Against Power” review of Leonard W Levy, Origins of the Bill of Rights (Yale, 1999) in The Washington Post C7, August 16, 1999 Review of M H Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century (Athens, Georgia, 1997) in 42 American Journal of Legal History 327 (1998) Review of Robert Feenstra Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries (Variorum, 1996) in 42 American Journal of Legal History 89 (1998)

Curriculum Vitae and List of Publications Mortimer Newlin Stead Sellers

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Review of Alfred P Rubin, Ethics and Authority in International Law (Cambridge, 1997) in 12 Emory International Law Review 101 (1998) “The Republican Manifesto”, review article of Philip Pettit, Republicanism: A Theory of Freedom and Government, (Oxford, 1997) in 39 Santa Clara Law Review 355 (1998) “Another Philadelphia Story”, review of Buzz Bissinger, A Prayer for the City in The Washington Post (Book World, p  8, February 1, 1998) “Upholding the Statutes of Liberty”, review of Norman Cantor, Imagining the Law: Common Law and the Foundations of the American Legal System, in The Washington Post (Book World, p  3, December 28, 1997) “Spirit of the Law”, review of Jean Edward Smith, John Marshall: Definer of a Nation in The Washington Post (Book World, p  3, March 16, 1997) Review of Owen S Ireland, Religion, Ethnicity, and Politics: Ratifying the Constitution in Pennsylvania in The Journal of American History 1383 (March, 1997) “From Classical to American Republicanism” review article of Paul A Rahe Republics Ancients and Modern: Classical Republicanism and the American Revolution in 3 International Journal of the Classical Tradition 232 (1996) Review of R C van Caenegem, An Historical Introduction to Western Constitutional Law in 40 The American Journal of Legal History 517 (1996) “Forming a More Perfect Union” review of Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution in The Washington Post (Book World, p  5, May 12, 1996) “The Sage of Sensibility” review of Andrew Burstein, The Inner Jefferson: Portrait of a Grieving Optimist in The Washington Post (Book World, p  1, December 24, 1995) “The Wills of the People” review of Robert H Wiebe, Self-Rule: A Cultural History of American Democracy in The Washington Post (Post Book World, p  4, April 16, 1995) (also in the Manchester Guardian Weekly, June 18, 1995, p  16) Review of David N Mayer, The Constitutional Thought of Thomas Jefferson, in 14 The Journal of the Early Republic 416 (1994) “Seeking the Grandeur that was Rome” review of Carl Richard, The Founders and the Classics in The Washington Post (Book World, p  1, July 3, 1994) Review of Olga Tellegen-Couperus, A Short History of Roman Law, in 38 American Journal of Legal History 109 (1994) Review of Alan Diamond (ed ), The Victorian Achievement of Sir Henry Sumner Maine in 27 American Journal of Legal History 520 (1993) “Doing the Right Thing”, review of James Q Wilson, The Moral Sense in The Washington Post (Book World, p  2, August 1, 1993) Review of Mario Torelli, Lavinio e Roma in 76 Journal of Roman Studies 198 (1986)

Introduction Joshua Kassner / Colin Starger This book collects full versions of papers originally presented at a special meeting/ conference of the International Association for the Philosophy of Law and Social Philosophy held at the University of Baltimore in July 2018 The original theme for the conference was The Nature and Purpose of Law After hearing the papers and the debates they inspired, the editors and Professor Sellers decided that The Value and Purpose of Law better reflects the diverse contents of these conference proceedings A number of chapters, however, refer to the original conference title (This volume’s opening chapter, The Nature and Purpose of Law in Early Greek Thought, is a case in point ) Though academics are undoubtedly this book’s primary intended audience, anyone with a sincere interest in jurisprudence or philosophy should find the contents compelling The book features contributions from fifteen different authors hailing from universities located across Europe, North and South America and Asia The scholarly perspectives brought to bear on the volume’s theme are as diverse as the authors’ geographical origins Readers will encounter everything from hard-edged analytic positivism to unabashedly normative republicanism and beyond Contributors agree and disagree with one another The debate within these pages is rich and well represents current controversies in legal philosophy Before providing summary sketches of each author’s unique chapter, it bears emphasis that this volume is organized as a Festschrift in honor of Professor Sellers As Dean Ron Weich has detailed in his Foreword, Professor Sellers is an absolutely prodigious author and editor of jurisprudential texts He also is a leader and convener of scholars, unwavering in his dedication to what he aptly calls “the science of community and justice ” Although this book’s contributors may fiercely clash on such questions as whether there is a necessary connection between law and morality, they all concur that Tim deserves this honor The volume opens with a fascinating survey of the development of the conception of law in ancient Greek thought Examining varied original texts – from Homer to fragments of Heraclitus to Plato’s Crito and more – Professor Richard Bett identifies two broad trends in early Greek thought: first, a gradual growth towards a notion of law, including written law, as a force for social harmony and cohesion, but bolstered by some

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form of divine justice or law; and second, a notion of law as a purely human creation, still perhaps with the aim of social harmony and cohesion, but subject, precisely because of its merely human origin, to various challenges, including whether its alleged aim is a mask for more sinister motivations In describing these trends, Professor Bett also vividly captures ancient arguments over the nature and purpose of law that very much foreshadow contemporary debates on a variety of topics including whether law’s origin is divine or positive and whether one has an obligation to obey legal judgments In the book’s second chapter, Conversations about the rule of law: the public interest and law’s ideals, Professor Sanne Taekema shifts our focus from ancient wisdom to modern theory Aptly enough for this Festschrift, Professor Taekema frames her chapter as a critique of Professor Sellers’ view, influenced by the ancients, that the rule of law means being led by the common good Professor Taekema finds merit in Professor Sellers’ approach, but ultimately advocates for a modern procedural understanding of the rule of law, which also places a premium on the reduction of arbitrariness Building on her own important prior work as well as on recent publications from Jeremy Waldron, Philip Selznick, and Martin Krygier, Professor Taekema eloquently presses for a theory of the rule of law that is relational, seeing the law as qualifying relationships between powerholders and those subject to them Chapter Three develops further the theme of law’s role in mediating relationships of power In An Essay in Defense of a Republican Understanding of the Relationship between Liberty and Law, Professor Joshua Kassner compares two conceptions of liberty, libertarian (freedom as non-interference) and republican (freedom as non-domination) and then presents a careful argument for why the law ought to prefer the republican conception Professor Kassner contrasts the libertarian perspective that law is a presumptive moral wrong because it interferes with individual liberty with the republican perspective that law is presumptively morally valid because it is vital to establish societal institutions that protect individuals from domination Defending the republican view, Professor Kassner argues that it offers the more systemic perspective on what constitutes justice and equality while both comporting with Lockean, Kantian, and Millian philosophical insights and better accounting for the intrinsic value of community in our social and political existence In Chapter Four, Law and Emotion: How Empathy Forms Judges’ Sense of Justice, Professor Marcelo Galuppo proceeds from premises consciously aligned with Professor Sellers’ views: that the main purpose of legal institutions is to provide justice and that emotions play a key role in shaping judicial decisions Drawing on an impressive range of social science research as well as jurisprudential theory, Professor Galuppo artfully examines the connection between actual justice and the sense of justice and then details how empathy serves as the mechanism by which judges come to their sense of justice Though he maintains that empathy helps judges provide fair interpretations of legal rules, Professor Galuppo argues that the emotional sense of justice must be bounded by reason, which is necessary to distinguish justice from injustice

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From these abstract inquiries, the volume takes a brief sojourn into historical myth busting Chapter Five, A Short History of the Idea of National Law: the Exception becomes the Rule, debunks the dogmatic notion that the law is dependent on Nation-States and has always been national and statist In a sweeping yet succinct historical survey with a rich bibliography, Professor Andrés Botero Bernal traces the development of legal systems from the Middle Ages up through the Modern age and argues that legal monism, the conception of law of having a singular validity tethered to the State, did not fully emerge until the nineteenth century Per Professor Botero-Bernal, this now-dominant view misunderstands the plural and hybrid roots of modern legal systems and their “glocal” (global-universal and local-particular) nature He concludes that, when it comes to how humanity has conceived its legal forms, the national law idea is the exception rather than the rule Professor Véronique Champeil-Desplats analyzes a different kind of exception and rule in Chapter Six, Contemporary States of Exception and the Rule of Law – the exceptional regime of a state of emergency and its implications for the rule of law Using the 2015–17 French state of emergency as a case study and drawing on critical theorists from Girogio Agamben to Michel Foucault and beyond, Professor Champeil-Desplats puts forward the hypothesis that the French experience of states of emergency can serve as an example of the political and legal responses that current democratic States, claiming to respect rule of law, bring in response to various security and terrorism challenges Her deft analysis highlights the complex capacity of contemporary democracies, committed to the rule of law, to incorporate exceptional regimes that derogate from ordinary legislation and restrict fundamental rights and freedoms Professor Champeil-Desplats ultimately characterizes the implementation of exceptional regimes within the framework of the rule of law as a matter of porosity, blurring the exceptional and the ordinary legislation, at both practical and theoretical levels The book’s seventh chapter, Questioning the Moral Understanding of Law by Professor Marijan Pavčnik, returns to the eternal theme of law’s connection to morality While Professor Pavčnik accepts that law and morality are distinct, he suggests that positivism must have ethical foundations if its claim to authority is to be valid This leads to a series of eloquent meditations on basic human rights, the meaning of man’s freedom, and the moral charge of law Through these meditations, Professor Pavčnik makes the case that basic human rights are the primary content-related framework we are bound to honor because the moral values they express provide the most solid moral basis for law in pluralist societies He further stresses that through the discretion in interpretation, morality co-defines the content of law and that this is as it should be Though law is not the same as morality, law has moral goals (human rights) and these should not be ignored In Chapter Eight, What Is It That We Study When We Study Law?, Professor Ricardo Guibourg undertakes a systematic investigation into the nature of legal knowledge and legal science After a lucid exposition of foundational concepts – science, truth, knowl-

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edge, method, and law – Professor Guibourg observes that legal science must confront the problem that the primary job of lawyers is to win cases (not to make advances in law) and that, for this reason, lawyers can maintain disagreement forever To overcome this obstacle, he initially suggests we consider an imaginative solution: a protocol under which judges engage in public analysis of legal criteria that informs their decisionmaking Although Professor Guibourg acknowledges the difficulty of implementing such a solution, he argues that such a new way is needed if we wish for legal thought to finally catch up with other fields of human knowledge and have its own Copernican Revolution Professor Leslie Francis brings a vital feminist perspective on this book’s philosophical concerns in Chapter Nine, How Should a Feminist Think about Legal Positivism? After crisply explaining the limitations of Rawls’ ideal liberal theory of justice, Professor Francis returns to the classic positivism / natural law debate and details why a feminist, non-ideal theorist might prefer Hart’s positivist portion of the landscape to the natural law sector occupied by Fuller, Dworkin and others She argues that positivist social metaphysics can help further achieve justice for women by creating space to see how contested moral views have become embedded in law despite being morally suspect This theoretical position is artfully fleshed out through concrete analyses of debates over whether economic activity is speech for First Amendment purposes and how sexual harassment law developed In Chapter Ten, Law as Transformation, Professor Stephan Kirste advances the thesis that law’s distinctive function is to transform morals and social behavior into formally accepted and recognized social practices After a trenchant exposition of Aristotelian-Thomist, Neo-Kantian, and Gadamerian perspectives on the value of law to morals, Professor Kirste offers a deeply researched account of the achievements of, and problems with, substantial and formal approaches to the nature of law To overcome the apparent irreconcilability of substantial and formal conceptions of law, Professor Kirste uses the theoretical concept of transformation – the change of norm into a new form He then compellingly demonstrates how law forms its own self-transforming procedures, which break various forms of social norms and then reconstruct them into legally protected interests This transformation defines law’s nature and its essential contribution to society The philosophical concerns of volume are given a literary frame in Chapter Eleven, Law and Injustice in Times of Crisis by Professor Gülriz Uygur Weaving together references to Camus’ The Plague and reflections on Giotto’s frescos in the Arena Chapel in Padua, Professor Uygur creatively explores how a non-ideal theory of justice can explain the nature of law in times of crisis In addition to its artistic perspective, the chapter builds upon theoretical concepts from Edmund Husserl, Martha Nussbaum, Judith Shklar and others Professor Uygur argues that injustices in crisis times reveal the origin of law in the basic needs of humanity To overcome the fear and forgetting of crisis times, Professor Uygur urges to regard the present crisis as the moment for

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decision, a time to make the right decision, a time to rectify the errors of the past and recollect the unity and harmony that preceded the existence of legal rules Professor Matthias Mahlmann further confronts crisis in Chapter Twelve, Constitutionalism and the Idea of Law Though a critical investigation into the central elements of the project of constitutionalism, Professor Mahlmann provides an incisive and timely reflection on the challenges we face in an era of rising authoritarianism, post-truth politics, and climate-change denial Professor Mahlmann first catalogues the defining features of constitutionalism and its relationship to modernity with scholarly precision Constitutions are institutional expressions of the idea of human rights and democracy; constitutionalism provides essential safeguards against the worst tendencies in human society In his conclusion, Professor Mahlmann eloquently reaffirms constitutionalism’s normative commitment to respect for human dignity, liberty, equality and solidarity Sometimes the very premises of academic conferences need questioning Professor João Maurício Adeodato does that with admirable panache in Chapter Thirteen, The “Nature” of Law in a Realistic and Rhetorical Philosophy Proceeding from an analytic and realistic perspective, Professor Adeodato argues that inquiries into the “nature” of something are metaphorical and warns that statements about nature often hide strategic ways of imposing (contestable) opinions Going further, Professor Adeodato rejects both the separation thesis and the necessary connection thesis and suggests instead that while particular laws result from moral conceptions, law generally provides a coercive process through which contested moral views become dominant Professor Adeodato completes this clear-eyed critique by dismissing objective conceptions of truth and justice in favor of a realistic rhetorical approach, which he sees as generating more democratic ethics and processes to move the law in the preferred direction of tolerance Skepticism about the analytic merit of any inquiry into “the nature and purpose of law” also finds strong voice in the book’s penultimate Chapter, Law as Language and Interpretation by Professor Pierluigi Chiassoni The great length of Professor Chiassoni’s erudite contribution, however, engages in deep conversation with recent scholarship exploring notions of “law as language” and “law as interpretation” After a thoughtful evaluation of Timothy Endicott’s rejection of Jeremy Bentham’s conception of laws as linguistic entities, Professor Chiassoni focuses his forceful critique on the pragmatic formalism of Andrei Marmor Here he concludes that pragmatic formalism ultimately fails to understand legal interpretation and sketches out an account of pragmatic realism that better explains the ubiquity of interpretation as a value-laden and reflexive activity in the everyday working of legal orders The book’s final word is appropriately given to its honoree, Professor Tim Sellers In Some Thoughts on the Value and Purpose of Law, Professor Sellers parries modern skepticism with a characteristically frank and emphatic exposition of the necessary place of justice in the law Professor Sellers stakes a claim to truth rooted in ancient

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wisdom Like Cicero, Professor Sellers sees law as the highest reason, requiring what must be done and prohibiting what must not be done in order to establish justice Following Plato and Aristotle, Professor Sellers urges us in turn to understand justice as consisting in those social arrangements that best serve the common good of all members of society, including everyone and omitting no one Professor Sellers concludes with a noble statement of first principles, defining terms – reason, morality, liberty and more – and then explaining the place of these lofty concepts in the normative science of law In his chapter, Professor Sellers also expresses gratitude to his friends and colleagues whose writings fill this volume as well as admiration for their outstanding contributions to the discourse of legal and social philosophy As editors, we too would like to thank all the authors for their hard work and inspiring ideas It has been an edifying and humbling experience for us both, and we have been honored to collaborate with such esteemed scholars Finally, we thank Professor Sellers for his years of excellent mentorship and guidance Tim: please enjoy this Festschrift!

The Nature and Purpose of Law in Early Greek Thought Richard Bett* I It took some time for the ancient Greeks to develop a clear conception of law as a human institution The most common Greek word for law, nomos, does not appear in Homer at all (although an editor in the Hellenistic period, Zenodotus, tried to read it into the opening lines of the Odyssey by changing the text) However, this does not mean that there is nothing in Homer relevant to our theme The Iliad includes a brief scene that looks like an early form of judicial proceeding (18 497–508): There was a crowd in the market-place And a quarrel arising between two men Over blood money for a murder, One claiming the right to make restitution, The other refusing to accept any terms They were heading for an arbitrator And the people were shouting, taking sides, But heralds restrained them The elders sat On polished stone seats in the sacred circle And held in their hands the staves of heralds The pair rushed up and pleaded their cases, And between them lay two ingots of gold For whoever spoke straightest in judgment 1

This is not part of the main narrative in the Iliad; instead, it has, from that narrative’s perspective, a somewhat imaginary character, being one of many scenes depicted on the shield that the god Hephaestus makes for Achilles to replace the one he lost when Patroclus went out to fight (and was killed) wearing his armor * 1

Professor of Philosophy, The Johns Hopkins University Translation from Homer, Iliad, Translated by Stanley Lombardo, Introduction by Sheila Murnaghan (Indianapolis/Cambridge: Hackett, 1997)

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Nonetheless, the scene presumably reflects real life at some point in the early Greek oral tradition of which the Homeric poems are the climax There is no indication of how this “arbitrator” (histôr, literally “knower”) is to decide whose case is stronger In particular, there is no suggestion of written statutes that might serve as guidance – which is not surprising, since writing is mentioned only once in either poem (Il. 6 168–70, cf 6 177–9) and then mentioned only in terms that show very clearly that whoever composed those lines had no idea what writing actually was The idea of a monetary reward for whoever made the best case (literally, “whoever spoke justice [dikê] most straight”) also seems oddly out of keeping with the nature of the dispute Despite these obscurities, there is at least the sense in the scene of an established procedure for settling conflicts within society that might otherwise devolve into violence A related idea of jointly understood, if unwritten, rules that enable a society to function is drawn attention to by its absence in Odysseus’ description of the Cyclopses (Od  9 106–15): And we came to the land of the Cyclopes Lawless savages who leave everything Up to the gods These people neither plow nor plant, But everything grows for them unsown: Wheat, barley, and vines that bear Clusters of grapes, watered by rain from Zeus They have no assemblies or laws but live In high mountain caves, ruling their own Children and wives and ignoring each other 2

The word for law (and in the compound “lawless”) here is themis, which refers to what is right or what should be done, but again, not by statute While nomos too can mean “convention” or “custom” rather than (positive) “law” – which is one reason why it is difficult to be sure when the latter was clearly conceptualized – themis never means anything other than unwritten rules However, these rules are clearly conceived as binding society together, as is shown by the juxtaposition of “laws” with “assemblies” (agorai boulêphoroi, literally “assemblies bringing counsel”); the Cyclopses, who have neither, are not a society, but just a collection of nuclear families who happen to live in the same general region Now, the one actual assembly that we see in the Odyssey (book 2) is itself somewhat dysfunctional Odysseus’ son Telemachus calls an assembly to complain about his mother’s suitors eating them out of house and home while Odysseus is away (and presumed dead, at least by some) But there is no clear mechanism for lodging such

2

Translation from Homer, Odyssey, Translated by Stanley Lombardo, Introduction by Sheila Murnaghan (Indianapolis/Cambridge: Hackett, 2000)

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a complaint, and since many of the other speakers are suitors themselves, nothing is accomplished beyond a testy exchange of words In the end, order in Ithaca is only restored by Odysseus returning and killing the suitors with the help of his son and his few loyal servants We are pretty far here from any developed conception of the workings of law Yet the distinction between the anti-social Cyclopses, and humans who can confer in assemblies and relate to one another in a manner governed by themis, is clearly seen as an important one The other point of interest about the term themis is that at least sometimes it has the connotation of ordinances from the gods; indeed, Themis is herself a goddess personifying order and justice This is in one way curious, since the passage just quoted says that the Cyclopses rely on the gods’ generosity and do not need to bother with agriculture Still, there is at least a suggestion that in ignoring themis, they are also falling short of standards set by the gods In Hesiod the appeal to divine standards is explicit Here we do find the word nomos, but the “law” that it refers to, while certainly applying to humans, is laid down by the gods Addressing his brother, Hesiod says (Works and Days 274–80): Perses, you take all this to heart Listen To what’s right [dikê], and forget about violence The Son of Kronos [Zeus] has laid down the law [nomos] for humans Fish and beasts and birds of prey feed on Each other, since there’s no justice [dikê] among them But to men he gave justice [dikê], and that works out All to the good 3

The poem continues by outlining divine rewards for following justice and divine punishments for violating it; and the specific violation mentioned is lying under oath while giving testimony (282–3) Human justice, then, consists in, or has as a central component, refraining from violence against one another – hence the contrast with nonhuman animals, and hence the choice between justice and violence offered to Perses And justice is administered in part by judicial proceedings in which truthful testimony is expected We seem to be coming closer to a conception of law as what binds society together But the word nomos is still not used of any human practice or institution; rather, it is used of the divine sanction that supposedly stands behind them By the time we get to Heraclitus, these elements can be combined with a notion of human law 4 In the roughly two centuries between Homer or Hesiod and Heraclitus,

3 4

Translation from Hesiod, Works and Days and Theogony, Translated by Stanley Lombardo, Introduction by Robert Lamberton (Indianapolis/Cambridge: Hackett, 1993) After writing this paper, I came across Jan Maximilian Robitzsch, “Heraclitus’ Political Thought”, Apeiron 51 (2018), 405–26 The picture I present here is very largely in agreement with Robitzsch’s, but his treatment is much fuller than mine

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written laws had become a reality In Athens, the city about which we generally know the most, a series of laws is attributed to one Draco in the 7th century, and they are suitably draconian Even if we discount this tradition, as scholars do to varying degrees, there is no doubt about the legislator Solon in the early 6th century A fair amount of his poetry has survived, and he actually says “I wrote laws” (thesmous … egrapsa, fr 36, ll 18–20); many of these verses take the form of explanation or justification of his policies, and a recurring theme is the importance of a fair balance between those with wealth and power and those without, the goal being to avoid violence and factionalism 5 Heraclitus seems to have more authoritarian leanings than Solon; among his surviving remarks are “it is law to obey the counsel of one” (DK 22B33) and “one man is to me ten thousand if he is the best” (DK 22B49, cf 121) But his picture of law as a guarantor of safety and common purpose in society seems in just the same spirit as Solon’s Two Heraclitus fragments are especially important in this context: (1) “Those who speak with intelligence must take their strength from what is common to all, like a city from its law, and much more strongly For all the human laws are fed by the one divine law; for it has power over as much as it wants, and it is plenty for all and then some” (DK 22B114); and (2) “the people must fight for the law as for the city wall” (DK 22B44) 6 The second fragment emphasizes the role of law as a protector of the people The first adds to this the idea of law as giving a society strength and the idea of law as bringing a community together – the law is something “common to all” But the human law is of course dependent on something else that is “common to all”, namely the divine law Elsewhere in Heraclitus the phrase “common to all” and related phrases are used of the ordered universe (DK 22B30) or, even more significantly, of the principle, the logos, that governs this ordered universe (DK 22B1, 2) It is not overbold to infer that the divine law, as referred to in the fragment above, is an aspect of this ultimate principle of the universe, and it is from this that human law derives its inspiration and its force Heraclitus’ conception of the divine is not the same as Homer’s or Hesiod’s – he is quite explicit about this; but his conception of human law as having divine backing, as well as his conception of the benefits law confers, owe quite a bit to the less fully articulated visions of these two poetic predecessors 5 6

A convenient translation of Solon’s political verses appears in Michael Gagarin and Paul Woodruff, eds , Early Greek Political Thought from Homer to the Sophists (Cambridge: Cambridge University Press, 1995); my numbering of the quoted fragment follows the edition used in this volume Unless otherwise indicated, translations are my own DK is Diels-Kranz, Fragmente der Vorsokratiker (Berlin: Weidmann, 6th edition 1952), which is still the standard reference point for fragments of the Presocratic thinkers A convenient translation of the surviving fragments of Heraclitus and other leading Presocratics (which clearly correlates the DK numbering system with its own) is A Presocratics Reader: Selected Fragments and Testimonia, Edited with Introduction by Patricia Curd, Translations by Richard D McKirahan, Jr (Indianapolis/Cambridge: Hackett, 1996)

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Interestingly, the idea of a cosmic counterpart of human law – or at least, of human justice  – also appears in the very earliest fragment of Greek philosophy Simplicius reports that Anaximander of Miletus identified the principle of the universe as to apeiron: “the indefinite” or “the unlimited” Out of this principle emerge definite things with definite boundaries Simplicius adds that coming into being and destruction are reciprocal processes; the source of a thing’s existence is also what it is reabsorbed into when it ceases to exist And he then says “For they give justice and retribution to one another for their injustice according to the ordering of time – he says it in this rather poetical language” (DK 12B1) The final phrase shows that some part of the previous sentence was Anaximander’s own words; scholars disagree about how much, but at least the reference to justice and injustice is likely to be a quotation The idea of the fragment seems to be that just as human justice ensures a proper balance among humans’ priorities and concerns, there is a cosmic principle that does something similar in the world as a whole, and thus can be thought of as a kind of justice This does not go so far as to say that human justice is derivative from cosmic justice, as in Heraclitus’ picture; but it is clearly compatible with that idea, and was perhaps another impetus to Heraclitus to make the explicit connection between them II Not everyone in Greek thought regarded law as having a divine basis The Sophists of the late fifth century BCE made much of a distinction between phusis, “nature”, and nomos As we have seen, nomos can refer to conventions or customs as well as written laws But at least one consequence of distinguishing phusis and nomos is that laws are thought of as a human creation rather than as an offshoot of some kind of divine ordinance Several texts of the period offer speculative accounts of the origins of human society, in which a combination of material improvements and the growth of institutions allow people protection from the ravages of the natural world and also from attacks from one another In the pure “state of nature” that preceded these developments, people were vulnerable The fullest and best known of these speculative accounts is the speech given to the Sophist Protagoras in Plato’s dialogue of that name, which we can reasonably assume is based on ideas held by the real Protagoras Protagoras presents his account in the form of a story in which gods oversee the development of human society But he is quite explicit that this is a choice, and that he could have presented the same ideas as a simple discourse (logos, 320c3–4); moreover, since we know that Protagoras was agnostic about the gods’ existence or nature, he clearly cannot mean these ideas to depend literally upon divine beings having a role The initial account does not explicitly mention law But it does draw attention to the necessity of all humans having some sense of justice (322c–d, 323c) – society can only

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work if humans are the kind of beings who are capable of fair treatment of one another And later in his speech, when he has abandoned story for argument, he talks of the importance of laws in shaping people’s behavior He speaks of these laws as “inventions of good and ancient lawgivers” (326d6), and it is a fair assumption that these would been included in the initial political set-up, had he described it in more detail Another text in a similar vein puts law in a much more central position This is a fragment of a play, ascribed by Sextus Empiricus to Critias (M 9 54, although elsewhere Euripides is named as the author), which begins as follows: There was a time when the life of humans was without order, Beastlike and subject to force, When neither the good had any reward Nor did the bad receive any punishment And then humans seem to me to have established laws For punishment, so that justice would be in control …7 and have hubris as its slave, And anyone who did wrong would pay the penalty 8

Laws make us safe from one another, and they were invented by humans for precisely that purpose Still more briefly, a fragmentary text of the Sophist Antiphon, in one of its most fragmentary portions, allows the likely reconstruction of the words “they agreed” and “the laws”, which looks as if they may have belonged to another account of the same general kind 9 I shall return to Critias and Antiphon later But for now, they complement the picture suggested by the speech of Protagoras: law has a vital function in preserving society and shaping it for the better – in this respect there is no disagreement with the earlier picture most coherently expounded by Heraclitus – but it is an invention of early humans, not a divine dispensation In the same period as this view first achieved some currency, we find several other ideas that look as if they are connected with it First, if law is a human invention, it is likely that laws will be different in different circumstances – and in particular, that different political systems will have different kinds of laws associated with them In this period, towards the end of the fifth century BCE, we start to see explicit attention to this theme A good example, offered in a self-congratulatory spirit, comes near the beginning of the Funeral Speech put in Pericles’ mouth in Thucydides’ history of the Peloponnesian War (2 37) Pericles proudly declares that Athens, unlike its neighbors,

7 8 9

Part of this line is missing One plausible supplement is Diels’ homôs hapantôn, “of everyone equally”; another possibility is Grotius’ genous broteiou, “of the race of mortals” I here recycle my translation from Sextus Empiricus, Against the Physicists, translated with introduction and notes by Richard Bett (Cambridge: Cambridge University Press, 2012) The reconstruction is by Fernanda Decleva Caizzi in Corpus dei papiri filosofici greci e latini, vol  1 (Florence: Leo S Olschki Editore, 1989); the text is at 186 and her commentary at 192

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is a democracy, and immediately connects that with the fact that in Athens everyone is equal under the law He goes on to say that he and his fellow Athenians are obedient to those in office at any given time and also to the laws, especially those designed for the benefit of those unjustly treated The point is not developed, but the idea is clearly that democracy brings with it a special democratic style of law – and by implication, that other political systems will have other types of law associated with them In the same sentence, Thucydides’ Pericles says that the Athenians also obey those unwritten laws that are, by common agreement, shameful to violate Again, he does not expand upon the idea, but the text at least admits of the interpretation that, whereas the written laws previously spoken of are tailored to the democratic constitution, these unwritten laws exist over and above any particular political system That contrast, if developed in a certain direction, can deal a serious blow to the authority of humanly devised laws The classic example of this is Sophocles’ Antigone Antigone explicitly appeals to unwritten law as the justification for her decision to bury her brother, the rebel Polyneices, contrary to the edict of the ruler Creon (450–5) This unwritten law is a divine law But whereas, in the earlier picture from Heraclitus, divine law provides a sort of foundation for human law, here the two diverge, and the unwritten divine law is seen as overriding human law, which, at least in extreme situations like this, is treated with no great respect The human law, in this case, simply consists of the decision of Creon, the sole ruler (177, 191, 481) And one could imagine a line of thought that questioned that state of affairs, urging that human law should be the product of consultation or even a vote, rather than a single person’s decision But the idea of law as a check on arbitrary rule does not yet seem to have surfaced (I shall return to this point at the end) In any case, the Antigone shows no hint of it; the contrast is simply between divine law and human law While the play does not portray any of the characters, including Antigone, as faultless, there is little doubt that Sophocles means us to see her stance as more in the right than Creon’s The implication is that, when divine law and human law conflict, human law should be the loser Of course, one does not need to retain a strong sense of the divine in order to find fault with human law If laws are a human creation, and vary from one political system to another, it is not much of a stretch to conclude that they are created with the interest of some segments of society in mind, which in turn means that they may very well not be in the interest of others It is this line of thought that produces the claim of Thrasymachus in the first book of Plato’s Republic: that “justice is the interest of the stronger” Explaining this claim, Thrasymachus says that the ruling faction in each type of political system “lays down laws for its own advantage: a democracy lays down democratic ones, a tyranny tyrannical ones, and so on for the others; in laying them down they declare this (namely, what is advantageous to themselves) to be just for those ruled, and they punish the person who steps outside this as violating the law and acting unjustly” (338e1–6) A natural consequence of this, which Thrasymachus does not hesitate to develop, is that unless you belong to the ruling faction in any given city,

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these laws deserve no particular respect, and might as well be ignored if one can get away with it Another version of this kind of view of law appears in the mouth of Callicles in Plato’s Gorgias Here it is not the differences among laws from one society to another that is the issue Instead, the general claim is that law has the function of taming us and making us all act with restraint towards each other, and that the naturally powerful would do much better to resist this and act in naked pursuit of their own self-interest (483c–484a) – which Callicles actually refers to as the “law of nature” (nomos phuseôs, 483e3) Thrasymachus’ view seems to have abandoned the idea, common to the earlier phase of thought and at least some in the Sophistic period, of law as a guarantor of peace and order; instead, law is simply a device of those in power to advance their own interests Callicles, on the other hand, retains that earlier idea, but instead of treating law, for that reason, as a vital safeguard, he thinks of it as an obnoxious restraint on the naturally strong Either way, law – of the kind created by society, at any rate – is of little or no importance Again, as with Protagoras, we are dealing with characters in Plato’s dialogues, not actual historical figures; and although we know Thrasymachus was a real person, Callicles is one of the very few Platonic characters of whom there is no historical record Nonetheless, we can be confident that views of the general kind he puts in the mouths of these characters had some historical reality Another portion of the papyrus fragment of Antiphon mentioned earlier – a much better preserved portion – expounds a further view of this general kind Antiphon begins by saying that justice consists in following the laws of whatever city one happens to live in He continues “A person would use justice in a way most advantageous to himself, then, if he considered the laws important when there are witnesses, but matters of nature important when alone without witnesses” The fragment then goes on to detail the ways in which law and “nature” – meaning people’s natural inclinations – are opposed to one another Laws attempt to shape the ways we perceive and react to the world around us, but this is a stifling of what our unobstructed natures would lead us to want and to do 10 Antiphon does not explicitly claim, with Thrasymachus, that the laws vary from one city to another, although the reference to the laws “of the city in which one is a citizen” may be a gesture in that direction But the notion that they are imposed on us contrary to our true interests is clearly in agreement with both Thrasymachus and Callicles Once the idea that law has a human rather than divine origin is out of the bag, the way is clear for some people to find this law less authoritative than it was previously taken to be To this we can add that even people who retain a strong sense of the value 10

Greek text and full English translation in André Lake & Glenn W Most, ed /tr , Early Greek Philosophy (Cambridge, MA: Harvard University Press, Loeb Classical Library, 2016), vol  IX, chapter 37, text D38a (but the translation in the main text above is mine)

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of law in ensuring social order may also be troubled by the ease with which its authority can shrivel under pressure Thucydides is a good example of this – and here we are not talking about words put by Thucydides into some historical character’s mouth, but of his own reflections on various dire turns of events Speaking of the plague that hit Athens in the early years of the war, Thucydides remarks that respect for law (and also fear of the gods) completely crumbled in the face of it; if you expect to die in the near future, law quickly loses its capacity to restrain your anti-social behavior And his account of the civil war in Corcyra is a similar case; in a situation of revolution, when conspiracies abound, respect for the law and for its socially beneficial effect evaporates (3 82 6) 11 Another striking example of concern about the efficacy of merely human law is the fragment of Critias (or Euripides) cited earlier (quoted in Sextus Empiricus, M 9 54) As we saw, this fragment begins by citing the benefits of law in restraining people’s behavior But the passage continues by saying that the device of enacting law only worked when people were being observed by others; if there were no witnesses, they kept on acting in the same violent way they used to And so, the author (or the speaker – this is a drama) continues: at that point it seems to me That some cunning man, wise in judgement, first Invented fear of the gods for mortals, so that There would be something for the bad to fear, even if They did or said or thought something in secret So that is how he introduced the divine, Saying that there is a god, flourishing in life without end, Hearing and seeing with his mind, aware of And attending to these things, bearing a divine nature, Who will hear everything that is said among mortals And will be able to see everything that is done12

The passage continues in a similar vein; and the notion that there is a god is explicitly said to be false Yet this false notion is broadcast in society in order to give the law the kind of force that it lacks on its own On this view, then, laws of merely human origin are too easy to ignore Although the divine sanction that Hesiod and Heraclitus took the law to have is actually fictional, it is necessary that people believe in a divine power overseeing us all; only in that way can law do the work it is supposed to do

11 12

I leave aside 3 84, which has further reflection on the relation of law and human nature, but is generally considered to be an insertion not composed by Thucydides See again n  8

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There are difficult questions about what the author is intending with this passage 13 The initial expression of respect for the law as a force for social cohesion seems genuine And yet, if its success in this role really depends upon the belief in an all-seeing god, why publicly proclaim that that belief is false? Interpretation is challenging; we do not know how this speech connected with the rest of the drama in which it belonged The play is generally thought to have been about Sisyphus, but no other pieces have survived Certainly, we cannot assume that the ideas put in the mouth of a character in a drama are ideas that the author favors or wants the audience to take seriously Still, the view as expressed by this character is an intriguing case of concern about the limits of the power of merely human law, and one that, given the range of other views we have seen from the same period, seems very much of its time I have identified two broad trends in early Greek thought: first, a gradual growth towards a notion of law, including written law, as a force for social harmony and cohesion, but bolstered by some form of divine justice or law; and second, a notion of law as a purely human creation, still perhaps with the aim of social harmony and cohesion, but subject, precisely because of its merely human origin, to various challenges, including as to whether its alleged aim is a mask for more sinister motivations In the space available, I cannot take the story much further But in what remains I will hazard a few remarks about Plato’s response to these trends, and note a few points in the subsequent history that seem to connect with them III Two aspects of Plato’s treatment of the topic of law are especially noteworthy; one is highly specific to a single dialogue, while the other is a continuing preoccupation The first is the role played by the laws of Athens in Plato’s Crito The question in this dialogue is whether Socrates, having been convicted and sentenced to death by an Athenian jury, should escape from prison Crito is all for this option, and claims he can easily arrange it But Socrates insists that they should only take this course of action if it can be shown to be just; and the major portion of the argument that follows, to the effect that it would not be just to do so, is put in the mouth of the laws of Athens Once again, “laws” (nomoi) need not be restricted to positive law, but can include more informal norms of conduct But that actual statutes are at least part of what comes under the heading of nomoi here is clear from the fact that part of the argument involves details of the trial procedure that Socrates has recently undergone (52c)

13

I have discussed some of these in “Is there a Sophistic Ethics?”, Ancient Philosophy 22 (2002), 235– 62, at 251–4

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The laws’ argument centers around the idea that by living in Athens, Socrates has made an agreement to abide by themselves, its laws In the course of this argument, much is made of the fact that Socrates owes his upbringing and his livelihood to the laws, since they are the root of the city’s institutions (50d–e, 51c–d); because of this, they characterize him as their “offspring and slave” (ekgonos kai doulos, 50e3–4) As a result, if one is to choose to live in the city – as Socrates has very clearly done his entire life – there are only two possibilities: either one must persuade the city to change the laws, or one must obey the laws as they are Escaping after having been convicted under these same laws would be an attack on them, an attempt to undermine them; it would also be an extreme violation of the agreement of which his whole life has been an expression Whereas we have seen several versions of the view that our obligation to obey the law is limited or even non-existent, this goes to the opposite extreme It represents an extraordinarily strong assertion of the value of law for communities and the individuals in them, and of the consequent obligation to adhere to it Law provides not just social cohesion, as in many of the views we considered earlier – indeed, that plays little or no explicit role in the argument; law is in a very full sense responsible for our being who we are – we owe to it our whole developed selves Going against the law is thus going against ourselves; it can never be acceptable The Crito raises many questions One is obviously the nature and source of this agreement that we are supposed to have made to the laws of the community that raised us Another, perhaps even harder, is whether we are supposed to swallow this argument that Socrates attributes to the laws It looks at first sight as if Socrates is endorsing it, and many scholars have read the dialogue in this way But if this is so, then, as has often been noticed, there appears to be a conflict with Socrates’ absolute commitment, including in this very dialogue, to doing the right thing regardless of what people think; for surely it cannot be denied that the law is at least in part a reflection of the fallible opinions of those who created it Now, if the laws’ point of view does not line up with that of Socrates himself, there is of course the question why he makes so much of it in his response to Crito The most obvious answer is that this is something that Socrates thinks will appeal to Crito and lead him to the right conclusion – that Socrates should not escape – even though it is in some respects mistaken 14 I cannot undertake to adjudicate this issue here What we can say is that if the laws’ position is one that Plato means Socrates to agree with, and perhaps one that he agrees

14

A good spectrum of scholarly opinion can be found in essays 9–12 of Rachana Kamtekar, ed , Plato’s Euthyphro, Apology, and Crito: Critical Essays (Lanham, MD: Rowman & Littlefield, 2005); Brickhouse & Smith, Kraut and Bostock all read Socrates as endorsing the laws’ argument, while Harte takes the opposite view Another work that distinguishes between Socrates’ and the laws’ positions is Roslyn Weiss, Socrates Dissatisfied: An Analysis of Plato’s Crito (New York: Oxford University Press, 1998)

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with himself, then we can understand one of his purposes as being to push back against those in the immediately preceding period who had a greatly reduced respect for the importance of law Do not think you can so easily sever your ties to the laws of your community, he would be saying; law has a vital role in shaping us as mature and civilized human beings, and you denigrate it at your (and everyone else’s) peril If, on the other hand, Plato wants us to see Socrates’ and the laws’ position as different from one another, he can still be understood as intervening in that same debate, but in a different and more subtle way In this case the Socratic position would allow that it can sometimes be appropriate to break the law But this would not be for reasons of narrow self-interest, as in Antiphon’s or Thrasymachus’ case, or even because of a conflict with divinely sanctioned unwritten law, as in Antigone’s; it would be because, if one truly understands what the best course of action is – which is also the action that is genuinely in one’s interest – one will see that this can sometimes conflict with what law prescribes Coming to such an understanding is, of course, a project that Socrates considers supremely important He is shown failing at it in a number of Platonic dialogues, but in the Republic he finds some measure of success And I think this second reading of the Crito would give it more point and purpose as a precursor of the Republic However, I am not one of those scholars who regards Plato as a godlike figure who was in perfect control of every word he ever wrote And so I am not sure we can rule out the first reading, in which Socrates accepts the laws’ extreme view of their own authority, with all the difficulties that brings; perhaps the Crito is just a naïve early work The other Platonic theme to which I would like to draw attention is Plato’s recurring tendency to think of the need for written laws as itself a sign of human imperfection This is plain enough in the Republic, where at the end of his initial account of the ideal city in books 2–4, Socrates speaks at some length (425a–427a) about the fact that what he calls “legal enactments in speech or letters” (logôi te kai grammasin nomothetêmata, 425b8), on a whole range of subjects on which it is currently common for cities to have them, are pointless if one has people in charge who are “fine and good” (kalois k’agathois, 425d7) A person of this kind is referred to as “the true lawgiver” (ton alêthinon nomothetên, 427a4), and this again reflects the ambiguity of the word nomos; these superlative rulers can enact and preserve certain ways of life, and this can be in a broad sense be seen as the establishing of nomoi, but these ways of life need not, and probably cannot, be captured in specific verbal prescriptions As we later learn, these people are the philosopher kings; and the reason why verbally specified laws are useless for them is that they have insight into the Forms, which are the true models for human conduct While the other side of the coin is not made explicit, the clear implication is that it is only because there are no philosopher kings in the societies we are familiar with that written laws seem necessary or beneficial In the Statesman, too, we are introduced to the idea of a ruler who has genuine knowledge (epistêmê, 292d3, 293c7) or expertise (technê, 293a9) of how to rule This

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person could rule just as well with or without laws (referred to as nomoi, but also as “letters”, grammasin, 293a7 – in other words, written statutes) This is initially treated with some skepticism by the interlocutor (Young Socrates, 293e) But the main speaker, The Eleatic Visitor, goes on to explain that laws can only be an approximation, vulnerable to the constant changes in human circumstances (294a–c), and eventually returns to the idea that the truly correct political arrangement would be one where a person of real political expertise was in charge, and where it was that expertise, rather than any laws, that decided what was to be done (296d–297b) The same point is even found in the Laws (875c–d) Now the Laws, of course, is absolutely full of laws: and the Statesman recognizes the necessity of laws The reason, of course, is that the Laws and the Statesman, unlike the Republic, are interested in non-ideal conditions – not the hopelessly corrupt political conditions Plato seems to have thought he and his contemporaries actually lived in, but still conditions that are imaginable given human beings as they (or almost all of them) actually are And in these conditions there is no alternative to relying on laws, flawed as they may be We can perhaps think of this Platonic trope as an updated version of the older notion, going back as far as Hesiod, of human institutions as having divine backing In Plato, as in Hesiod, there is a supra-human basis for correct actions and correct social arrangements One difference is that in Plato it is the flawed human arrangements, which can at best only approximate the truly correct ideals, that are spoken of with the word nomos, whereas in Hesiod nomos applies to the divine ordinances that stand behind the justice of the human sphere Plato, unlike Hesiod, is familiar with detailed written laws, and with a history of treating nomos as a human creation Seen in this light, nomos looks to him like something inferior, with the truly correct way being something quite other than law-like Being a human creation, nomos can hardly be expected to achieve much on its own – though we have to do our best with it But then, as we saw, many of those who thought of nomos as human, but did not believe in anything like Platonic Forms, were also far from optimistic about its power I close with a very few points about later developments Aristotle shares Plato’s view that law is too coarse-grained to cover all eventualities But since he does not share, even as an ideal, Plato’s notion of philosopher kings, he shows at least some inclination towards the view that rule by law is better than rule by human beings – that is, human beings untrammeled by law (Politics 1286a17–20, 1287a28–32); law is dispassionate, whereas human beings are not I mentioned earlier that the idea of law as a check on arbitrary political rule, which is so important in our own thinking, does not seem to have occurred to the Greeks of the fifth century BCE In these brief and undeveloped remarks of Aristotle, we see perhaps the first inkling of this idea The idea that law should constrain rulers – and everyone else as well – is much more explicit in the Stoics; indeed, as the leading Stoic Chrysippus expresses it, law itself is

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the ruler 15 In this case we are talking not of human law, but of divine law In some ways this is reminiscent of the picture suggested by Heraclitus (to whom the Stoics are indebted in other areas as well) But the Stoics develop much further the idea of a natural law that stands over and above human laws, and this influence extended into modern legal thought While human laws vary from place to place, this higher law is of divine origin and is the same everywhere; to follow it is to be in tune with the rationality that governs the universe, and also in tune with one’s own human nature, whereas to violate it is in the truest sense self-destructive (Cicero, Republic 3 33) Clearly this opens the possibility that the right course of action might sometimes be to ignore the local laws of one’s society and follow the natural law instead; for if the local laws are imperfect, as they surely will be, there are likely to be cases where the two conflict – and in such cases, there is no doubt which of the two should be followed This takes us back to something like the scenario in Sophocles’ Antigone But it also encourages the idea that we should work to make human law as far as possible a replica of natural law, or at any rate consistent with it, which brings us again to the Heraclitean idea of human law as “nourished” (trephontai, DK 22B114) by divine law The Stoics’ contemporaries the Epicureans thought nothing of the sort; their conception of god is of a supremely tranquil being, unconcerned with prescribing to humans – that would be far too much trouble Yet precisely because of that very lack of concern, god provides a model for humans to emulate This lack of prescribed divine law does not prevent there being a universal standard for justice; Epicurus himself says that justice is whatever is useful for the prevention of mutual harm (Kuriai Doxai 31) But he goes on to say that in order for justice to be enacted, there needs to be a contract or agreement among people The specific agreements made may vary in different times and places, because differences in circumstances may affect what is or is not useful in a given context However, a law that is not in fact conducive to social harmony in the context in which it is passed is not in fact a just law (Kuriai Doxai 32–7) This is an interesting mixture of elements that we have seen in earlier thinkers Unlike the Stoics, and like the earlier Sophists, Epicurus thinks of law as a purely human creation; but like the Stoics and many others before them, he thinks of local laws as beholden to a universal standard, albeit not one with divine backing Other Epicureans followed this general picture, including the early Epicurean Hermarchus (as paraphrased in Porphyry, On Abstinence 1 7 1–9 4=LS 22M) and the later Roman Epicurean Lucretius Lucretius’ version has a twist He gives an account of primitive humanity and the gradual development of civilization, not unlike the one from Protagoras’ speech in 15

At the opening of his On Law, as quoted by the Roman jurist Marcianus This appears as passage 67R in A A Long and D N Sedley, The Hellenistic Philosophers (Cambridge: Cambridge University Press, 1987); another passage included in this volume (but otherwise hard to track down) is referred to below using the abbreviation LS

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Plato but much more detailed (5 925–1160) But in Lucretius law is a surprisingly late arrival Prior to the introduction of law, cities were founded by kings and property was divided among the inhabitants (5 1108–12) These kings’ continued craving for wealth and power eventually led to their being killed (5 1136); and as a way out of the ensuing chaos, a path was found to the birth of a political constitution and laws (5 1143–50) This no doubt reflects the early history of Rome, where the Republic was a successor to the early (and largely legendary) period of the seven kings, the last of whom was overthrown But it also makes Lucretius another exponent, at least implicitly, of the idea of law as a constraint on arbitrary power These reflections could be greatly expanded; I merely wanted to give a taste of the way in which the main themes from the early period retained some hold as Greek philosophy became more mature and sophisticated And I hope that this survey as a whole, with its concentration on the earliest phase of Greek thought, has raised issues that connect with other central topics addressed in this volume What law is for, and why it is important, are obviously questions that are of abiding concern The answers offered by the early Greek thinkers may be much less developed than what we can find today, but it seems to me no exaggeration to say that the questions they were addressing still resonate with us 16

16

I thank Tim Sellers for inviting me to contribute to the conference that was the starting point of this volume, and to him and the other conference attendees for their insightful comments on my presentation I also thank Colin Starger for his sensitive editing of my original version, which helped to bring out a number of my points more clearly

Conversations about the Rule of Law: the Public Interest and Law’s Ideals Sanne Taekema* 1. Introduction The rule of law is a topic that unites and divides legal philosophers It unites them in the shared belief that the rule of law is a core value of law as a normative endeavor; it divides them in the variety of explanations how the rule of law connects to the concept of law itself In a number of articles, Mortimer Sellers has focused on the first issue, our common belief in the rule of law, but in those articles he also puts forward a specific vision of the rule of law that may be contested 1 Although Sellers presents his vision as one shared by the ancients and modern philosophers, his claims go much further than the familiar twentieth-century rule of law theories of Hayek, Fuller or Raz In this Chapter, I examine the particular view of the rule of law put forward by Sellers and contrast it with my own views and those of theorists with whom I align My goal is to contribute to theoretical conversations about the rule of law, although I cannot completely steer clear of broader debates regarding the concept of law 2 The classic slogan of the rule of law, “the rule of law, not of men”, or imperium legum, is the starting point for Sellers’ theory He combines this idea with another one going back to ancient thinking: rule of law means being led by the common good Although both claims sound straightforward, upon examination they are not

* 1

2

Professor of Jurisprudence, Erasmus University, Rotterdam For this contribution I have primarily used the article ‘What is the Rule of Law and Why is it so Important?’, first published in J Silkenat, J Hickey and P Barenboim (eds ), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat): Springer 2014, pp  3–13; republished in F Goudappel and E Hirsch Ballin (eds ), Democracy and Rule of Law in the European Union. Essays in Honour of Jaap de Zwaan, The Hague: Asser Press 2015, pp  3–14; see also, M N S Sellers, ‘An Introduction to the Rule of Law in Comparative Perspective’, in M N S Sellers and Tadeusz Tomaszewski, eds, The Rule of Law in Comparative Perspective 2010, pp  1–9 Compare Jeremy Waldron, ‘The Concept and the Rule of Law’ Georgia Law Review, (43) 2008, pp  1–61

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First, what does it mean for law to rule? Upon closer examination, it seems doubtful that law can rule by itself; it always needs people to give it practical force But this denial then leads to the further question of the role that law actually plays when it is said to rule The second issue concerns the link between rule of law and the common good Although Sellers does not highlight this, understanding the rule of law as requiring action for the common good puts his vision in the camp of the substantive rule of law theories While I too think that substantive values are closely connected to the core of the rule of law, I am less sure that the focus on the common good helps us understand what those values are Using a relatively new strand of theory, Jeremy Waldron’s procedural rule of law, puts us on a different track I propose to combine Waldron’s insights with a different classic starting point for a rule of law theory, also acknowledged by Sellers: the reduction of arbitrariness With the help of two theorists who focus on this, Philip Selznick and Martin Krygier, and a return to Fuller, I hope to show how this simple core value of the rule of law also leads to consideration of substantive legal values Together, these points lead to a theory of the rule of law that is relational, seeing the rule of law as qualifying relationships between powerholders and those subject to them 2. Law’s rule Thinking about the notion of imperium legum in relation to the slogan “the rule of law, not of men”, it strikes the reader of Sellers’ work that he consistently refers to the “empire of laws and not of men”, translating the Latin term more directly The empire of laws is a phrase with a more ambitious sound than mere “rule”; it implies that laws together may constitute an empire For Sellers a crucial aspect of the rule of law is that there is a clear separation between law and people’s will: “The rule of law assumes a theory of law that separates law from the volition of those who serve it ”3 If one equates “those who serve it” with the officials administering the legal system, this theory seems to imply that laws have an independent existence and that they can be applied in a way that does not involve any meaningful decision-making by these administering officials This conjures up a common image of the rule of law in which the general rules made by the lawgiver are mechanically applied by judges 4 Law rules if law determines the outcomes of legal decision-making This claim is problematic in at least two ways

3 4

Sellers, What is the rule of law, p  11 This view is usually attributed to Montesquieu, because of his phrase that judges are ‘la bouche de la loi’, the mouthpiece of the law (De l’Esprit des Loix, Book XI, ch 6) Whether this interpretation of Montesquieu is correct is debatable, see e g Paul Carrese, The Cloaking of Power. Montesquieu, Blackstone and the Rise of Judicial Activism, Chicago: Chicago University Press 2003

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First of all, it is only through human action that law can exist and govern: people need to use legal norms in order for them to have meaning For people to do what the law requires of them, they need to work with the legal rules As Gianluigi Palombella puts it: “law is always a rule which men are responsible for, and it is men that govern through law It is not the law that governs of its own accord ”5 Thus, the contrast between the rule of law and the rule of men seems overstated if it is seen as a separation; it seems more apt to speak of the rule of law if people rule in accordance with, putting themselves under the governance of, the norms of the law A second, related, point is that most theorists do not believe that creating laws to get rid of people’s willpower is sufficient This includes Sellers, who also claims that the rule of law is best served by an institutional set-up that separates powers, a set-up which presumes that a working government can only be trusted to act according to the rule of law if there are various institutions that keep tabs on each other Deliberately separating powers does not presume rule of law rather than of men, it presumes that some officials will jealously guard their own sphere of influence and thereby limit opportunities of serious exercises of willpower by other officials If one links rule of law to separation of powers, or any other system of divided government, one needs to assume that the will of officials, although dangerous, is an inevitable force to reckon with For these reasons, it seems better to see the imperium legum as something that qualifies the actions of the servants of the law, by specifying what is expected of them if they want to act in accordance with the value of rule of law This also makes it possible to see “the rule of men” as capable of being gradually better or worse in terms of rule-of-law observance I will return to the idea of arbitrary power later, but here it is important to note that the will of those making use of law can be detached from the requirements of the law in various degrees To put it differently, those in power can be less or more concerned with rule-of-law quality The following situations illustrate the variety of ways rule of law may be approached: law can be the smokescreen behind which a dictator acts upon his whims, law can be bent to align with the interests of the ruling party, it can reflect the desires of a popular majority, it can be the protection of the liberty of citizens, and so on I believe that with such a qualitative understanding of the rule of law as affecting the will of rulers, some of Sellers’ other points gain force Having stressed the variety in rule-of-law quality, it remains important to distinguish the rule of law from the rule by law In Sellers’ words, “This goes beyond the mere legalism of a ‘rule by law’ or ‘Rechtsstaat’, through which one man, or a faction, or a party rules through positive law to impose his or her or their will on others ”6 Rule by law is purely instrumental without any respect for

5 6

Gianluigi Palombella, ‘The Rule of Law as an Institutional Ideal’, Comparative Sociology (9) 2010, pp  4–39, at p  10 Sellers, What is the rule of law, p  4

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law’s intrinsic values 7 For Sellers, these intrinsic values are found in the link between rule of law and the common good 3. Rule of law and its purpose: formal and substantive theories The most striking aspect of Sellers’ theory is the firm connection he makes between the rule of law and the common good, which is best quoted in full: “The rule of law signifies ‘the empire of laws and not of men’: the subordination of arbitrary power and the will of public officials as much as possible to the guidance of laws made and enforced to serve their proper purpose, which is the public good (‘res publica’) of the community as a whole ”8 Whereas the first part of this idea of the rule of law is found in most rule of law theories – which all proclaim the need to reign in arbitrary power through the guidance of law – the second part about a proper purpose is contested In order to show why this is so, it is helpful to situate Sellers’ theory in the broader range of theoretical accounts of the rule of law A distinction widely recognized as useful is the one made by Paul Craig between formal and substantive theories of the rule of law 9 Formal theories state that a legal system qualifies as a rule of law system if it satisfies formal criteria that restrain the exercise of arbitrary power, such as clear rules that are made public, that are not retroactive and sufficiently general The list provided by Lon Fuller in The Morality of Law is usually seen as a good example of such a formal theory 10 Substantive theories, on the other hand, see the rule of law as intrinsically connected to substantive moral values such as human rights or substantive equality Ronald Dworkin’s rights conception of the rule of law is commonly cited as an example here 11 The distinction between formal and substantive theories is an important one in connection to the legal-philosophical discussions on the link between law and morality: most formal rule of law theorists would say that fulfilment of the rule of law criteria by a legal system does not say anything about that system’s moral qualities Part of the 7

8 9 10

11

My first example of the rule of law as a smokescreen for dictatorial rule is therefore on the edge: does it have some rule-of-law quality because lip-service is paid to the rule of law? Or is it merely rule by law? The answer seems to depend on the importance one attaches to the meaning of hypocrisy as the beginning of acknowledgment or not Sellers, What is the rule of law, p  4 Paul Craig, P (1997), ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, Public Law pp   467–487; see also Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University Press 2004 Lon L Fuller, The Morality of Law, New Haven: Yale University Press 1969 Whether this really qualifies as a formal theory, depends very much on the meaning attached to the term ‘formal’ If ‘formal’ is equated with ‘morally neutral’ it is clear that this is not true of Fuller’s theory, for him these rule of law requirements constitute the internal morality of law Ronald Dworkin, A Matter of Principle, Cambridge, Mass : Harvard University Press 1986, pp  9–32

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confusion in the debate between Hart and Fuller may be attributable to the positivists equating “formal” with “morally neutral” For Fuller, this was not the meaning of formal at all; for him, these rule of law requirements constitute the internal morality of law 12 Here, however, those discussions are not the issue Instead, I want to draw attention to the particular way in which Sellers can be characterized as a substantive rule of law theorist His theory differs from contemporary liberal theories of the rule of law such as those of Dworkin or Habermas in that he puts forward a republican rather than a liberal notion as the rule of law’s core value: furthering the common good instead of protection of individual rights 13 Although, of course, freedom is also a crucial value in a republican theory (in the form of non-domination), there is a greater focus on the value of justice and on the active role of citizens in upholding the legal order 14 In most rule-of-law theories, the focus is on the constraining of government – via principles that can ensure that government officials have a clearly delineated sphere of authority In a republican theory such as Sellers’, this is not the case Instead of constraining government officials, republican theory imposes a clear duty on citizens to uphold the rule of law Sellers is careful not to overstate this – citizens retain a free sphere of private activity – but they also have a positive public duty to the common good What exactly that duty amounts to, when it comes to the rule of law, remains to be seen One theoretical hurdle to overcome in order to formulate the content of such public duties is the notion of the common good itself The idea of the “res publica”, or common good of society, seems a logical purpose to link to the rule of law However, in current societies determining what that common good amounts to is challenging, if not impossible The large-scale societies of the 21st century are characterized by diversity and competing interests of different groups In some societies, diversity is ethnic or cultural In others, it is economic or class-based Many societies embody all these forms of diversity Coming to a shared understanding of the public good in such societies is a very difficult process, and the democratic forms of government we know are not particularly good at arriving at even a rough consensus Issues such as climate change, migration, humanitarian intervention, and taxation are matters on which there is often no common opinion in society Instead of speaking of “the common good” it may therefore be more accurate to speak of public interests in the plural This does not signify that any single group inter12 13

14

See also Kristen Rundle, ‘Form and Agency in Raz’s Legal Positivism’, Law and Philosophy 32 (2013), pp  767–791 This is in line with Sellers’ earlier work on legal republicanism, see Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State, Palgrave Macmillan 2003 and Republican Principles in International Law: The Fundamental Requirements of a Just World Order, Palgrave Macmillan 2006 Sellers, What is the rule of law, p  6 Sellers does not see republicanism and liberalism as opposing theories but as compatible, Republican Legal Theory, p  77

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est is automatically the public interest, but rather that there are many public goods for which public officials and the institutions of the law bear responsibility We may define a public interest as an issue that a society (or societies together) needs to take care of, even if there is no common ground on how that interest can be promoted through law This means that choices may need to be made between incompatible views of what would serve a public interest, which will be reflected in the law Such a view of public interests may sound too pessimistic, linking law to any point of view that wins out However, I do think there are resources in law itself that mitigate the harshness of such public decision-making, and I would think these resources align with some of Sellers’ ideas as well The link between law and the value of justice, which has been acknowledged since antiquity, is the primary resource 15 Making use of law implies an orientation towards justice, both in the sense of formal equality / equal application of legal norms and in the sense of fairness / doing justice to the circumstances of a particular situation This brings us back to the rule of law, as distinguished from rule by law, because this orientation towards justice is lacking in the repressive instrumentalism of authoritarian rule by law 16 How does the orientation to justice help us with the problem of plural public interest? I would argue that the orientation towards justice entails certain side-constraints on the pursuit of particular public interests With its requirement of equal application of the law and its sensitivity to the context of particular decisions, valuing justice means that arbitrary choices in the legal rules and their application are hard to justify As German philosopher Radbruch noted, commitment to the idea of formal equality immediately raises the question what is to count as equal, and thus demands a substantive criterion of equality 17 Sellers believes that the rule of law in this sense follows from human nature: “(…) because all people and all nations seek – or claim to seek – the rule of justice through law ”18 I do not think it is necessary to claim a basis in human nature It is possible to link the orientation towards justice to the sociological insight that human social practices tend to include legal practices and that such practices usually display some understanding of justice in the way they are conducted Whatever its ontological base, the rule of law’s link to justice bars certain interpretations of the public interest, namely

15 16 17

18

Compare Sellers, What is the rule of law, p  6: ‘The law’s universal claim to obedience is dependent on a prior claim to serve justice ’ Compare Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law, New Brunswick: Transaction Publishers 2001, on repressive law Radbruch thought that these criteria had to be determined politically, as part of the open legal value of purposiveness, and held to a relativistic view Such (farreaching) relativism is debatable, also in relation to Radbruch’s work Other thinkers such as Dworkin, Fuller or Selznick do see a positive link between formal equality and substantive views For my own position on this, see Sanne Taekema, The Concept of Ideals in Legal Theory, The Hague: Kluwer Law International 2003, pp  178–196 Sellers, What is the rule of law, p  6

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the interpretations that run counter to equality and fairness Thus, one might judge legal regimes that completely disregard the situation of individuals in need, as in some immigration policies, as inadequate from a rule of law perspective Clearly, this gives a substantive quality to the rule of law that some more formally inclined theorists would reject, but that I would think fits comfortably in Sellers’ theory of rule of law 4. The rule of law as procedural: reducing arbitrariness. So far, I have situated the discussion in relation to the distinction between formal and substantive theories More recently however, Jeremy Waldron has defended the idea that rule of law theorizing should focus on the procedural element in law rather than the formal or substantive 19 Waldron’s view is interesting because it links to different characteristics of the legal system than rules or rights, which tend to dominate the discussion in terms of formal versus substantive Using the argument that citizens see access to courts as the crucial characteristic of the rule of law, Waldron claims that citizens’ opportunity to challenge decisions and be heard in court is the procedural core of the rule of law Why is this procedural rather than formal? Waldron points out that the right to access courts is not a matter of formal attributes of law only, it also includes the notion of equal respect for people as citizens entitled to their day in court More importantly, it also entails respect for the dignity of people as agents, taking seriously what they have to say for themselves A procedural rule of law thus combines formal institutional elements, requiring a court system and procedural rules, with substantive elements based on a view of persons as autonomous agents who participate in the law through the courts Although in my opinion the focus on national courts is rather narrow,20 Waldron makes an important point about the participation of citizens in the institutions of the legal system He argues that participation may actually detract from the standard ruleof-law value of predictability 21 Having stable rules is seen as a core requirement in a formal rule of law view, but if citizens are able to challenge rules in court and give arguments for a new interpretation, a serious consideration of their views may give reason to change or reinterpret the rules In a procedural rule of law, genuine voice for citizens may be more important than predictability

19 20 21

Jeremy Waldron, ‘The Concept and the Rule of Law’, Georgia Law Review 43 (2008), pp   1–61; Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’, In J Fleming (ed ) Getting to the Rule of Law (New York/London: New York University Press 2011) pp  3–31 See Sanne Taekema, ‘The Procedural Rule of Law: Examining Waldrons’ Argument on Dignity and Agency’, Jahrbuch für Recht und Ethik / Annual Review of Law and Ethics, Band 21, 2013, pp  133– 145, at pp  141–145 Waldron, ‘Importance of Procedure’, p  19

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While the substantive focus of Waldron’s theory is different than Sellers’ republican view of liberty, I believe the two theories could well be combined: both views see citizens as active participants, be it in legal proceedings or in democratic processes, and it should not be difficult to reconstruct a common underlying idea of human agency or dignity Rather than pursue this background theory to the rule of law further, I want to take up a link to yet another element or interpretation of the rule of law: its non-arbitrariness In Sellers’ view, the rule of law is of value because it reduces arbitrariness: “The rule of law is so valuable precisely because it limits the arbitrary power of those in authority” Thus, reduction of arbitrariness is a value that the rule of law helps to achieve In Sellers’ theory this purpose is seen as a corollary of the orientation towards the public good: it is because rulers are pursuing the common good that they are barred from exercising their power arbitrarily 22 They exercise it for a good end, after all This idea is subtly different from a line of theorizing about the rule of law that sees the rule of law as in essence the reduction of arbitrary exercise of power In this theory, rule of law is also purposive, but reduction of arbitrariness is seen as an independent end, not dependent upon pursuit of the common good The two theorists who have most consistently defended this view are Philip Selznick and Martin Krygier 23 As Selznick puts it, the rule of law, or legality, is: “(…) the idea that a legal order faithful to itself seeks progressively to reduce the degree of arbitrariness in positive law and its administration” 24 Krygier stresses that this is the immanent end of the rule of law, or its telos, reducing the opportunities for arbitrary exercise of power 25 Both Selznick and Krygier thus maintain that we can only understand the meaning of the rule of law as aiming to achieve the reduction of arbitrariness One interesting feature of this account is that the rule of law is clearly pictured as an ideal This has been put forward by others too, but in Selznick’s theory this is embedded in a broader account of the ideal-oriented character of social practices Law, then, is oriented towards legality or rule of law as its central governing ideal 26 Emphasis on the ideal character of the rule of law has the particular advantage that it makes clear that achievement of the rule of law is variable, and that complete realization is unlikely This has the normative advantage of guarding against complacency: it is always necessary to

22 23 24 25 26

Sellers, ‘What is the rule of law’, p  4 Philip Selznick, ‘Sociology and Natural Law’ Natural Law Forum 6 (1961), pp  84–108; Martin Krygier (2009), ‘The Rule of Law: Legality, Teleology, Sociology’ In G Palombella and N Walker (eds), Re-locating the Rule of Law, Oxford: Hart 2009, pp  45–70 Philip Selznick (with P Nonet and H Vollmer), Law, Society and Industrial Justice, New York: Russell Sage 1969, p  12 Martin Krygier, ‘Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?’ In: J  Fleming (ed ) Getting to the Rule of Law, New York: New York University Press 2011, pp 64–104, at p  75 Philip Selznick, ‘Sociology and Natural Law’, Natural Law Forum (6) 1961, p  84–108, at p  94

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see how the rule of law can be pursued more fully The claim that we live in a rule of law state, or a Rechtsstaat for that matter,27 is one that should not be made lightly A drawback of the focus on an ideal of non-arbitrariness is that it is not readily apparent what follows in terms of more practical rule-of-law principles In relation to the European Union, Elaine Mak and I have argued that reduction of arbitrariness can be understood as composed of various elements, which follow from different understandings of what makes something arbitrary 28 Arbitrariness can be countered along four dimensions – with reason, or justification of actions, with legal certainty, or predictability of rules, with fairness, or equitable decision-making, and with voice, or participation in decision-making procedures A legal system that tries to do all of this needs an institutional design to support it, which is why a balance of powers between different branches of government is important If the meaning of the rule of law is constructed in this way, a rather obvious but underemphasized feature of the rule-of-law idea emerges: it is a relational concept Because arbitrariness can be defined as the willful or unrestrained choice of a decisionmaker,29 this is a relational quality in the legal and political context We do not care about self-regarding arbitrary decisions, we care about arbitrary action towards others The four dimensions of non-arbitrariness in law listed above can all be understood as enhancing the quality of relations between those in power and those subjected to it Reason demands justifying actions to others; predictability provides others with planning opportunities; fairness responds to the needs of others in a particular situation; and finally, voice gives others a say in the decision-making itself Both procedural rule of law and rule of law as reduction of arbitrariness can therefore be seen as expressing the relational character of the rule of law In my view, this brings us back to the moral quality of the law in the sense that Lon Fuller gave to it: law’s internal morality as based on the view that individuals are responsible agents and that legal power needs to be accountable to them 30 Such a moral reading focuses on the qualities of law, and may thus be seen as internal, just as Selznick’s idea of the rule of law is an ideal internal to the practice of law These ideas thus challenge an easy distinction between formal and substantive attributes and emphasize the complex relations between law and justice and between the practice of law and the people involved in it In Sellers’ work, I find a similar sensibility for complex relationships and rejection of easy dichotomies Such qualities give opportunities for discussing issues of legal philosophy in a nuanced and mutually respectful way, which benefits all of our thinking

27 28 29 30

Note that my use of ‘Rechtsstaat’ is that of a state that goes beyond the mere rule by law Elaine Mak and Sanne Taekema, ‘The European Union’s Rule of Law Agenda: Identifying its Core and Contextualizing its Application’, Hague Journal on the Rule of Law, 8 (1), pp  25–50, at p  29 Compare Krygier, ‘Four Puzzles’, pp  75–76, quoting Philip Pettit Fuller, Morality of Law, p  162

An Essay in Defense of a Republican Understanding of the Relationship between Liberty and Law Joshua Kassner* Introduction1 Law, by its very nature, is normative It prescribes and prohibits, licenses opportunity and levies fines, guiding individual behavior and shaping society In the modern era, individual liberty has been ascendant in its social and political importance A such, it is unsurprising to find that legal and political philosophers have sought to understand the relationship between law and liberty How we understand this relationship depends on which conception of liberty we adopt It would be practically impossible to consider all of the various conceptions of liberty found in this debate 2 As such, this discussion compares two conceptions of liberty, libertarian and republican They are, in my considered judgment, widely subscribed to and are often taken to conflict with one another In the end I defend the claim that we ought to choose a republican conception and then assess what implications this has for how we ought to think about the relationship between law and liberty My argument unfolds in four steps First, there are various preliminary matters that must be addressed Second, I provide a general overview of the two competing conceptions of liberty, including a brief discussion of the implications each has for how we should understand the relationship between law and liberty Third, I defend the

*

1

2

Associate Professor of Philosophy at the University of Baltimore, Research Fellow at the Center for International and Comparative Law at the University of Baltimore School of Law, Senior Scholar at the Hoffberger Center for Professional Ethics and Freeman Resident Ethics Fellow at the VADM James B Stockdale Center for Ethical Leadership at the United States Naval Academy I would like to acknowledge the significant role Mortimer Sellers has played in my professional life He has been a teacher, mentor, collaborator and friend over a relationship that now spans more than twenty years I am honored to contribute to this volume I also want to thank Colin Starger for all of the heavy lifting he did on this project David Schmidtz and Jason Brennan, A Brief History of Liberty (Oxford, UK: Wiley-Blackwell, 2010), p  4

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proposition that once one recognizes important distinctions between different types of liberty, we are, in fact, presented with a false choice because only a republican conception satisfies the relevant desiderata Fourth, and finally, I assess what implications adopting a republican conception of liberty has for our social, political and legal institutions and practices 1. Preliminary Matters There are several preliminary matters to address First, any choice to wade into a debate as deep as this one invites questions about the effort’s value As such, explaining the project’s importance is warranted Second, much of the disagreement in this debate is attributable to a failure to be clear about various conceptual assumptions being made, resulting in interlocutors speaking past one another Consequently, to ensure that those who dis/agree with me are doing so for the right reasons, I must be clear about the conceptual grounding for the analyses that follow Finally, efforts to understand the relationship between law and liberty can be grounded in different disciplinary perspectives; as such, the methodological path being pursued must be stated with clarity 1 1 Importance As noted, due to the intense scholarly attention already devoted to the relationship between law and liberty, one might question the importance of my effort here Though I am aware of the wealth of scholarship on the matter and am approaching this discussion with humility, in my considered judgment, the debate over the relationship between law and liberty has been based on misunderstandings between various interlocutors; too often, participants speak past, rather than to, one another With that said, my ambitions remain humble My objective is modest and narrow This discussion will take up the competing claims offered by those who understand individual liberty as grounded in freedom as noninterference (libertarian) and those who conceive of it as grounded in freedom as non-domination (republican) As a historical matter, these are both progeny of the post-enlightenment liberal project, but in their modern guises many of their respective advocates see a conflict between them In addition, the inquiry is important for both theoretical and practical reasons As to the theoretical significance, if I am correct, much of the debate around the relationship between law and liberty is based upon an unjustified understanding of individual liberty Again, assuming I am correct, making this clear would help to move the debate past the current impasse And, even though it is unlikely that my arguments will sway most libertarians, it should prod them to think about their own commitments in new ways, advancing the debate by a different path

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The practical significance of this project should be understood from two alternative perspectives First, our practical understanding of the legitimacy of legal systems and the laws which constitute them will depend on the extent to which such systems and laws are consistent with the relationship between law and liberty I defend Second, mirroring one of the theoretical reasons mentioned, even if many remain unconvinced, the analyses and arguments presented here should help us think more clearly about how the state’s use of law impacts individual liberty 1 2 Groundwork In setting the groundwork for this inquiry, there are numerous elements of the discussion that require further explication For one thing, it is important that one understand the nature of the inquiry It is normative in at least two respects It is about the conceptual relationship between two normative concepts, law and liberty; and, it is about the normative implications our understanding of the that relationship has for the social, legal and political institutions and practices that govern our lives Consequently, we should conceive of this inquiry as being comprised of two distinct, but related, questions What is the relationship between law and liberty; and, what does the answer to the first question imply about how we ought to understand legal and political legitimacy? In addition, there is another aspect of the inquiry that warrants mention The broader discussion over the relationship between law and liberty has been engaged in by historians, political theorists and legal scholars amongst others As such, to avoid misunderstandings, I must be clear about the methodology being pursued Simply put, this inquiry is grounded in legal and political philosophy In other words, I am not seeking to understand the relationship from a historical perspective nor am I seeking to describe how, as a matter of social or political fact, the law and liberty impact one another, rather my interest is in the philosophical and moral understanding of the relationship between law and liberty 2. Overview of the Competing Conceptions As was noted, this is not about the history of the concept of liberty, nor is it an attempt to explain how the current debate evolved For those interested in such matters, Mortimer Sellers’ The Sacred Fire of Liberty provides a thoroughly researched and argued history of both republican and libertarian conceptions of liberty 3 There, Sellers argues

3

Mortimer N S Sellers, The Sacred Fire of Liberty (London, UK: Palgrave MacMillan, 1998)

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that republican and libertarian conceptions of liberty share a common intellectual origin 4 Notwithstanding this shared history, the current conflict has taken on a life of its own In seeking to understand the conflict, we must first explicate the two conceptions of liberty and then explain how they give rise to competing accounts of the relationship between law and liberty To this end, in what follows, I provide a statement of each of the underlying conceptions of liberty and what moral prescriptions follow from these respective understandings Those interested in the debate over the moral commitments upon which these competing conceptions of liberty are based may find this approach unsatisfactory, wanting a more thorough assessment of the comparative worth of the underlying moral arguments Though I am sympathetic to this preference, the methodological choice I am making is not just pragmatic but is influenced by an understanding of the fact that, and as has been pointed out, both conceptions come out of the same liberal tradition 5 In addition, though there is significant disagreement over what constitutes liberty, there is little disagreement over the basic proposition that liberty is valuable Consequently, in capturing each account’s understanding of what constitutes liberty, one is, to a large extent, capturing the different understandings of what is valuable It should also be noted that in comparing the two accounts to understand which provides us with a better understanding of the relationship between law and liberty, much of that analysis will depend on understanding each account’s moral commitments 2 1 Libertarian Understandings of Liberty and Its Relationship with Law Addressing the libertarian understanding first, libertarian accounts may differ in their specific intellectual lineage, some derived from Kant or Locke and others from Mill, but they share features that define the libertarian perspective and are determinative of what it means to be libertarian Of particular relevance is that, for libertarians, liberty is valuable in-and-of-itself and is grounded in the proposition that to be free means to not be interfered with – freedom as noninterference In other words, one is free if others do not interfere with one’s choices and/or actions and such freedom is valuable for its own sake For a libertarian, any interference with an individual’s freedom is presumptively a moral wrong demanding justification In other words, such interference can be justified, but those interfering bear the burden of persuasion and must offer sufficient moral justification to overcome the presumption In addition, for a libertarian, liberty

4 5

Ibid. Ibid.

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has normative priority Its value and protecting it is the starting point of our analysis of the legitimacy of any law or institution So, what does this mean for the relationship between law and liberty? As noted, law is prescriptive It limits our ability to act as we choose Subjects of the law are expected to obey it, to bend their will to accord with the dictates of the law And, even when the law is providing a subject with license and opportunity, the law sets the parameters and conditions that accompany such opportunities and licenses; consequently, even when the law is opening doors, whether, when and how one walks through is not entirely up to the subject As such, under a libertarian understanding of liberty, law, because of its interference with individual liberty, is presumptively a moral wrong in need of justification Thus, the relationship between law and liberty is an uneasy one It is also important to point out the nature of the justifications accepted by most libertarians are limited by their commitment to the intrinsic value of individual liberty The justification must respect individual liberty Taking Mill’s harm principle as an example, Mill argues that interference with an individual’s liberty by social or legal means is only justified when it is necessary to prevent one’s actions from harming others 6 2 2 Republican Understanding of Liberty and Its Relationship with Law Turning now to the republican understanding of liberty, I am adopting a view of the nature of liberty that I believe is accepted by most, if not all, republicans; namely, Phillip Pettit’s understanding of liberty as grounded in freedom as non-domination 7 If I am incorrect in my belief about the consensus around Pettit’s view, I apologize, but would remain committed to this understanding as I believe it to be the most convincing account of republican liberty Identifying the republican understanding of liberty as grounded in freedom as non-domination raises the question, “What constitutes freedom as non-domination?” In its simplest terms, it means that one is only free when they are not subject to the arbitrary will of another, meaning that one not be subject to the arbitrary will of another, and that they have control over those aspects of their life that they are capable of handling and would be justified in controlling Freedom as non-domination involves interdependence in a way that freedom as noninterference does not For one to satisfy the correlative demands that arise from noninterference one need only refrain from actively interfering with the choices and actions of others, but there is no prescription against using one’s privileged position to 6 7

Josh Stuart Mill, On Liberty (Cambridge, UK: Cambridge University Press, 1989) Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford, UK: Oxford University Press, 2002)

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one’s disproportionate and unequal advantage, not actively interfering with, but dominating another In addition, for a libertarian there are no additional duties beyond noninterference To ensure that another is not dominated – a moral burden implied by non-domination – may require that one and/or one’s society provide social and/or political protections against such domination In addition, freedom as non-domination is social in a way that freedom as noninterference is not This is not to say that freedom as noninterference is devoid of social relevance; in fact, one could not have worthwhile social relationships without some limitation on interference by others However, freedom as non-domination is social in a stronger sense Requiring that one ensure that one’s fellows are not dominated, deepens the bonds that tie a society together One might challenge the proposition that freedom as non-domination is social in such a unique way, arguing that a system built on freedom as noninterference could produce a society in which no one dominates anyone else Simply put, if I choose to refrain from using my privileged position to exploit your weaknesses and even provide you with additional resources, ensuring that you are not subject to the will of others, then one might argue that you are not being dominated Thus, the argument runs, it is possible for a society to exist in which individuals choose to prevent domination, ultimately concluding that freedom as noninterference is equivalent to freedom as non-domination In short, libertarianism does not commit one to selfishness, a lack of charity or domination The argument fails to appreciate the difference between voluntarily choosing to refrain from subjecting another to your will and what it would mean for others to be free from domination The fact that one person’s freedom depends on the choice of another renders the former subject to the will of the latter Consequently, the former is being dominated even though they are not being exploited They would still be dominated even if everyone in the society in question chose not to exploit them Their freedom would still be subject to the arbitrary will of others Freedom as non-domination requires that we ensure, through legal, social and political institutions, that others are not dominated, not that we choose not to subject them to our will Freedom as non-domination is not, however, limitless It is not the case that we need to support an individual in every choice or action in which they wish to engage Freedom as non-domination merely requires that we establish legal, social and political institutions that prevent individuals from being subject to the arbitrary will of others In addition, the breadth of an individual’s freedom is limited to what the individual is capable of and morally justified in doing alone As to this latter point, the justification derived from non-domination itself is, in large part, a social one One is not free to act in ways that involve the domination of others, and they must support those institutions that protect against domination Though some may find this assessment of freedom as non-domination to be less than satisfying it suffices for present purposes Notwithstanding this, the question remains,

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what a commitment to a conception of freedom as non-domination implies about the relationship between law and liberty Simply put, since freedom as non-domination requires that legal, social and political institutions exist to ensure that individuals are protected from domination, law is necessary for freedom 8 Without law, one could be subject to the arbitrary will of another In addition, law defines the range of individual choice and action that is consistent with the requirement that freedom only extends as far as one is capable of, and morally justified in, acting alone 2 3 The Apparent Conflict We can now turn to the conflict between the libertarian and republican understandings of the relationship between liberty and law To review, for libertarians, liberty and law are presumptively in conflict Law interferes with liberty and must, therefore, be justified For republicans, on the other hand, one cannot satisfy the demands of freedom without law Law is the mechanism through which legal, social and political institutions protect against domination And it is how the community collectively governs itself, an essential aspect of non-domination Therefore, for a republican like Pettit, liberty is dependent on, not interfered with by, law This understanding of the relationship between republican liberty and law should not be mistaken This does not mean that law can never interfere with liberty and is never in need of moral justification However, the justification for law under a republican conception is not limited to individual liberty in the same way as it is under a libertarian conception One is not being dominated when they are compelled to contribute to worthwhile projects that an individual could not have pursued on their own and that were the result of a decision-making process in which they were not dominated In the end, libertarians tend to view the relationship between law and liberty as being fraught with conflict; law is, by its very nature, in moral conflict with liberty Republican liberty, on the other hand, sees law as an essential element of liberty These competing conceptions, due to their incompatible understandings of the relationship between law and liberty, are mutually exclusive, thus generating the supposed conflict 3. In Defense of a Republican Conception of Liberty It is my contention that the “conflict” is based on a false choice Freedom as non-interference is not a competitor to freedom as non-domination There are three arguments I take to weigh decisively in favor of this contention The first is based on a conceptual

8

Sellers, pp  39, 99

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failing of the libertarian argument, the second on the proposition that we should adopt that conception of liberty capable of accommodating certain facts about our social and political existence, and the third on my belief that we ought to prefer that conception of liberty capable of accommodating other social and political values, e g equality of opportunity and the rule of law 3 1 Conceptual Gaps in Libertarian Understanding As to the first argument, let us begin with with the historical underpinnings of the libertarian understanding of freedom as noninterference, namely, the Hobbesian contention that freedom is about not being constrained by external impediments 9 Without more, this understanding of freedom implies nothing more than a human capacity and an ability to use it To say that one is free under this account is to say nothing about the moral value of freedom in civil and political society The libertarian account, however, is based on the proposition that this capability is morally valuable in-and-of-itself As such, the libertarian owes us an argument to explain why we should take freedom, so understood, to be intrinsically morally valuable Without more the argument involves a category mistake The fact that we can do something, does not justify our ascription of moral value to that ability This is not to say that those who advocate for a libertarian understanding of freedom are without arguments in support of the basic proposition that freedom is valuable Certainly, Lockean, Kantian, even Millian arguments exist that can explain freedom’s value What such arguments cannot do is explain the intrinsic moral value of libertarian freedom If we take the accounts of the value of freedom alluded to above as our guide, under each argument an individual’s freedom is limited The libertarian conception seems to fail to account for such limitations In the case of Locke, the limitation is the Lockean proviso along with the natural rights of others For Kant, it is the formula of humanity that may require certain actions for the benefit of others For Mill, ultimately it is about the extent to which respecting individual freedom promotes some other end Though these arguments provide for a broad understanding of individual freedom and its value, none support the libertarian view that freedom as non-interference has intrinsic moral value with which law presumptively interferes If, on the other hand, we take the Lockean, Kantian, and Millian perspectives to be a touchstone for our evaluation of our conception of liberty, it would seem to be the case that a republican conception of liberty grounded in freedom as non-domination is more consistent with these philosophical views Consideration for, and duties owed

9

Thomas Hobbes, Leviathan (Cambridge, UK: Cambridge University Press, 1991)

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to, others are at the core of each of these accounts The question then becomes, to what extent can such considerations and/or obligations be understood from the perspective of freedom as non-domination? In the case of Locke, in addition to the obligation all are under not to violate the natural rights of others, the Lockean proviso – that one must leave “enough and as good” for others – implies a demand that we limit our actions in ways that insure that others have enough resources to enjoy their natural rights 10 It is not enough that we simply not interfere with others In addition, if we make the modest amendment, that to enjoy one’s rights an individual must not be subject to the arbitrary will of another, then a Lockean understanding of individual liberty is entirely consistent with the republican conception of freedom as non-domination Looking next to Kant, if we focus primarily on the formula of humanity, the imperative that we treat humanity as an end only and never merely as a means,11 it is relatively easy to see how such an understanding could support a conception of liberty grounded in non-domination To respect another’s humanity means that we have a duty to ensure that others with whom we interact are given the opportunity to consent, and by implication, dissent from their treatment If one is being dominated by another, they lack the ability to dissent What they can and cannot do is determined by the arbitrary will of another Their humanity is not being treated as an end-in-itself So, again, to respect humanity will require that we prevent domination One might reject this proposition to the extent that it requires some to contribute to the welfare of others Such “redistribution”, for someone like Robert Nozick, would itself be a violation of Kant’s formula of humanity, because the redistribution involves using the haves as a means to serve the have-nots 12 I am unconvinced by this understanding of the implications of Kant’s formula of humanity for a variety of reasons For one thing, it must be understood in light of Kant’s commitment to benevolence Though an imperfect duty, one cannot simply disregard their duty of benevolence It is also the case that Nozick’s understanding of the formula of humanity seems to be based on the proposition that one has always been wronged if they are forced to aid another Though it seems reasonable to adopt, as a rule of thumb, the principle that forcing one to help another is a failure to respect the former’s humanity; here, however, that rule of thumb does not apply The rule of thumb is implicitly based on the proposition that the individual being forced has moral discretion over whether and how to act in the moment In the circumstances being considered, it is not the case that the individual has such discretion In order to fulfill the duty that they have to others under the formula of humanity, they must contribute In which case, the individual is being 10 11 12

John Locke, Second Treatise of Government (Indianapolis, IN: Hackett Publishing, 1980) Immanuel Kant, Groundwork of the Metaphysics of Morals (Cambridge, UK: Cambridge University Press, 2012) Robert Nozick, Anarchy State and Utopia (New York, NY: Basic Books, 1974)

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forced to do something they have a moral obligation to do Consequently, it would not be true to claim that their humanity is being violated Finally, if we consider Mill’s understanding of the nature and value of liberty, it is not that liberty is valuable in-and-of-itself Rather, for Mill, liberty is valuable because of its contribution to overall utility The idea being that we have the best chance of maximizing welfare if we permit individuals to have a broad range of freedom Individual freedom should only be interfered with when the individual’s actions pose a threat of harm to either another individual or to society as a whole Underlying this account is the proposition that individuals should be free to pursue a life of their own choosing Political systems that include, and social relationships of, domination interfere with that ability When one is being dominated, one cannot pursue a life of one’s own choosing They are at the mercy of another Consequently, one implication of Mill’s argument ought to be a moral demand to protect against domination 3 2 Making Sense of Our Social and Political Existence Even if one is not convinced by the first line of argument, the republican conception of liberty ought to be preferred to a libertarian conception because it makes better sense of the fact of our social and political existence A libertarian conception treats our social and political existence as only being valuable to the extent that it serves individual liberty Our conception of liberty should make sense of our lives as members of social and political communities, not denigrate that very existence One might reasonably ask why the fact of our social and political existence should be a determinative consideration at all There are at least three reasons that, collectively, weigh in its favor The first is based on an empirical understanding of our history and our nature Humans know no other existence beyond one that is built around and dependent on our life in community In addition, we are creatures with a capacity to act on reasons, to be, as Kant noted, a law unto ourselves 13 Both our social and political existence, and our capacity for autonomy are descriptions of the sorts of creatures we are, the capacities we have, and the type of lives that we lead As such, there is good reason to seek out an account that can make sense of these aspects of our existence The next two reasons are both normative They differ, however, in the nature of their normativity One is prudential and the other moral As to the former, it is certainly logically possible that we might be different than we are, that humans might be capable of thriving in isolation from one another That logical possibility, however, is not our reality The very existence of our species likely depends on the fact that we live in community Notwithstanding this, there seems to be little controversy over the

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Kant

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proposition that humans have thrived due, in large part, to our life in community As such, there are good prudential reasons for us to value community and the social and political institutions of which it is constituted As for the moral reason for giving preference to accounts that can make sense of our social and political existence, whether one looks at the value of community from a consequentialist, Kantian, virtue ethical, or feminist perspective, there is much to value in the very existence of social/political community In the end, the value is contingent, again dependent on the fact that we are the sorts of creatures that thrive in community, that find greater freedom and autonomy in community, that are provided with opportunities to pursue various virtues due to our life in community, and that depend on the sorts of relationships of care and dependence that one finds in social and political community Obviously, a limitation of many of these arguments is that they are contingent Again, if we were not the sorts of creatures that we are, it might be the case that the value of community would be fundamentally different For example, if we were the crab people in Hart’s famous example,14 the protection for our physical security provided by civil society would not be as important We, however, do not have hard exoskeletons that will protect us from physical attacks We are creatures who are fragile and utterly dependent on others at various points in our lives Collectively, we flourish in community because of the division of labor that community makes possible Our ability to make and pursue choices is greatly enhanced by the principles, practices, and institutions that regulate civil society Finally, psychologically, our sense of self, our identity, is shaped by the circumstances that define, and nature of, the broader community in which we live None of the preceding arguments should be confused with an endorsement of a strong form of communitarianism, especially those forms in which an individual’s autonomy and freedom is limited to those life choices and paths permitted by the community in which they live, or those forms that make the moral value of community foundational Rather, these arguments should be understood to be consistent with a weaker form of communitarianism in which the value of community is distinct from, but inexorably linked to, the value of individual flourishing and freedom As such, it is reasonable to prefer an account of freedom that can make sense of the fact of our social and political existence With respect to this criterion, freedom as noninterference fails As noted, in freedom as noninterference any imposition on an individual’s ability to act as they choose is presumptively a moral wrong in need of justification Our social and political existence is founded upon a wide array of practices, principles and rules that limit one’s ability to act as they choose Consequently,

14

H L A Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review, Vol  71, No  4 (Feb , 1958), pp  593–629

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under a libertarian view of freedom as noninterference, our social and political life in community is presumptively a moral wrong requiring justification A republican conception of freedom as non-domination, on the other hand, is more able to make sense of the fact of our social and political existence Under a republican conception of freedom, principles and rules that define our social and political existence are required for freedom to be possible Freedom of the relevant sort, political freedom, cannot exist outside of civil society because it is the practices, principles and rules that define civil society that also protect against domination Under a republican conception of freedom as non-domination, without such practices, principles and rules, freedom would not be possible 3 3 Accommodating other Political Values As for the third and final reason for preferring a republican conception of liberty, when one considers both conceptions within the larger context of the role they are taken to play in civil/political society, they do not share the same ability to accommodate other values relevant to our assessment of legitimacy If we begin with the proposition that we think that the legitimacy of our legal, social and political practices and institutions requires more than liberty, then if one conception is better able to accommodate these other values, that would be a reason for preferring that account This, however, raises the question, “What are those additional values to be considered?” In my judgment, two of the most salient are equality of opportunity and the rule of law As to the latter, both conceptions of freedom are compatible with our commitment to the rule of law The main difference is that, from the perspective of freedom as non-domination, the rule of law is necessary to the existence of freedom; whereas, the rule of law, under a conception of freedom as noninterference is compatible with freedom, but the latter would not depend on the former In addition, it is worth noting that what the substantive law would look like in each system would be significantly different In the case of freedom as noninterference, the law would have to be consistent with the libertarian restriction on interference with individual choices, thus resulting in something like a night watchman state 15 On the other hand, in the case of freedom as non-domination, the law would be more expansive, recognizing and seeking to prevent domination Turning our attention to equality of opportunity, both conceptions of freedom are able to accommodate our commitment to equality of opportunity; however, their respective ability to do so depends on what we think equality of opportunity requires To explain, equality of opportunity admits of at least two conceptions, one formal and the

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other substantive Thus, our evaluation of these competing conceptions of freedom depends on whether we ought to be committed to a formal or a substantive conception of equality of opportunity Determining whether we ought to prefer a formal or a substantive conception of equality of opportunity begins with understanding both conceptions Common to all accounts of equality of opportunity is a shared commitment to the proposition that social and political positions should be open to all and should be awarded based on an equal consideration of non-arbitrary criteria relevant to the position being awarded 16 What differentiates formal from substantive conceptions of equality of opportunity are their different understandings of what it means for a position to be open to all, and what counts as the non-arbitrary criteria to be considered Under a formal conception, the demand that social and political positions be open to all is satisfied when the application and selection process do not explicitly, or, as a matter of extant practice, intentionally preclude anyone from applying As for what constitutes an arbitrary reason, this is to be understood ahistorically – limited to the present In other words, it does not matter how candidates have gotten to this point What matters is that the decision takes the candidates as they are and awards positions after equally considering the extant skills and abilities of all candidates without being influenced by arbitrary considerations like race, gender, or socioeconomic status For example, formal equality of opportunity has been satisfied if the most qualified candidate is awarded the job after an unbiased evaluation process, even if that candidate was the most qualified only because that candidate came from a wealthy family who provided them with exceptional opportunities that other candidates were not afforded It would remain true that formal equality of opportunity has been satisfied even if those denied the position had more innate potential but were only less qualified at the time of the selection because they lacked the advantages of the candidate awarded the position Turning our attention to a substantive conception of equality of opportunity, with regards to the requirement that social and political positions be open to all, those advocating for a substantive understanding argue that openness to all must be more than ahistorical and procedural. Rather, they argue that openness to all requires that individuals with equal potential stand on equal footing, not just in the moment of application, but that they are given sufficiently similar opportunities to develop their talents To fail to do so is, as a matter of practical effect, to exclude some from having a meaningful opportunity to apply As for the requirement that positions not be awarded for arbitrary reasons, the requirement goes beyond the reasons directly influencing and being considered by the

16

Richard Arneson, “Equality of Opportunity”, The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N Zalta (ed )

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application process What counts as arbitrary, under a substantive account, includes social, political and economic disparities affecting the ability of candidates to develop their potential History and broader social, economic and political considerations matter Under such an understanding, a decision to award a position to the most qualified candidate may yet fail to fulfill the demands of equality of opportunity if the opportunity of some to develop their potential has been undermined by such broader social, economic and political circumstances In the end, the difference between formal and substantive accounts of equality of opportunity can be found in their respective understandings of the relevant temporal and circumstantial scope of what is relevant to the awarding of social and political positions As to the temporal element, under a formal understanding, what matters is the present and whether, in the process of selecting and awarding the position, the candidates are treated equally Under a substantive account, the relevant temporal perspective is broader Our evaluation is not limited to the present moment and considers the past to see if some candidates had advantages that others did not As to (what I am calling) the circumstantial scope, under a formal conception, much like the limited temporal perspective, what constitutes an arbitrary reason is limited to the extant characteristics of the candidates and the rules and practices involved in the application and selection process Under a substantive account, a consideration of the broader circumstances matters It matters whether some candidates have social, economic, or political advantages over others Having thus explored the different conceptions of equality of opportunity, the question now becomes which we ought to prefer In the end, it is my position that we ought to prefer a substantive conception of equality of opportunity to a formal one Though I cannot give a complete defense of this proposition, there is one argument that should suffice to explain my preference and hopefully justify it to others as well The argument runs as follows: P1 – We should prefer an account of equality of opportunity that is better able to accommodate our commitments to other values than one less able; P2 – A substantive account of equality of opportunity is better able to accommodate our commitment to other values than is a formal account; Conclusion – Therefore, we ought to prefer a substantive account of equality of opportunity to a formal one

This argument needs to be fleshed out To be specific, it is essential that one understand the other values noted in (P1) and why (P1) and (P2) should be accepted As for the other values alluded to in (P1), as a general proposition, they are tied to what we think is required for political legitimacy For, what I take to be apparent reasons, liberty is excluded from this list of values With that said, the other values I am appealing to are justice and equality The content of these values is less important

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that the general perspective we use to assess whether they are being respected within a social/political community To clarify, on one hand, and starting with justice, we could adopt a perspective focused on assessing the justice (or the lack thereof) of particular actions or states of affairs For example, in an exchange between two individuals we would ask whether, in isolation from the background circumstances, their interaction was just or unjust On the other hand, we could adopt a more systemic perspective, one that also assesses whether the broader social and political practices and institutions that serve as the normative background within which such exchanges take place are just In my considered judgment, when we are discussing the justice of a society, we are concerned with the latter, more systemic, perspective Though I cannot offer a complete defense of this proposition here, there are numerous reasons that weigh in its favor For one, one could imagine that a particular action that appears to be just when considered in isolation, is part of a larger social pattern that it would be absurd to claim was just This is significant because the values being considered are derived from our understanding of what is required for political legitimacy, not merely for what distinguishes a just from an unjust act As an example, think of Jean Val Jean in Victor Hugo’s Les Misérables. Val Jean was convicted of theft and sentenced to prison for stealing a loaf of bread Without a more systemic understanding of the background social and political conditions that existed in France at the time, this may (arguably) appear to be a just outcome However, when one adopts a broader perspective and considers the tremendous inequity, oppression, and corruption that existed in France at the time, it becomes equally clear that Val Jean’s conviction is an injustice In addition, the concept of justice itself, understood in its most general terms, is about ensuring that each gets what they deserve To look at an instance in isolation may help us to evaluate whether, in that instance, an injustice occurred, but it tells us little about whether those involved are getting what they deserve Rather, to understand, whether the institutions and practices that constitute the normative framework of a community are providing – at least a sufficient degree of – justice requires that we look beyond the particular instance It requires that we look both to the social and political history that led to this moment and to the surrounding social and political circumstances to adequately assess whether and to what degree justice has been served Consequently, when seeking to understand whether a particular social/political community is just we ought to adopt a more systemic perspective Turning now to equality, again we are faced with a choice between different perspectives on equality I am beginning with an uncontroversial understanding of equality as a relevant political value Namely, I take equality to mean the equal moral worth of all individuals, and that our social and political practices and institutions ought to respect equality and protect against practices or institutions that undermine the commitment to equality so understood

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As to the former condition, that equality requires that a community’s social and political institutions respect, as a matter of policy, the equal moral worth of all individuals, both perspectives can support that condition However, if we shift our focus to the latter condition and think about the impact our social and political practices and institutions have, the picture is significantly different There we find that a perspective that looks at singular instances fails to adequately capture systemic inequalities caused or enabled by the practices and/or institutions under consideration This contribution to inequality can take two forms, either as a direct and intended consequence of a practice or policy or as an unintended consequence As to the former, it might be the case that the practice or policy in question appears to satisfy the requirement that we respect each individual as having equal moral worth, but it is intended to cause or exacerbate inequality One such example can be found in the various policies and practices effecting voting that defined the social and political culture of the Jim Crow South in the United States Here, poll taxes and tests that, on their face appeared to apply to all equally, had an intended discriminatory impact on African American citizens Second, it might be the case that there are less direct impacts of a practice or policy For example, one could imagine that in a single act in furtherance of a particular practice or policy in which neither party intends to discriminate against the other, if we were to limit our perspective to the exchange between the parties and not take into account the broader historical, social and political circumstances, the act may appear to satisfy the requirement that the equal moral worth of the individuals involved is respected However, that could exist alongside the fact that the cumulation of similar exchanges is leading to significant material, legal and political inequality In the end then, such inequalities are only rendered apparent if one adopts a more systemic perspective when evaluating whether the practices and institutions of a community are satisfying the demand that they respect equality Ultimately then, the claim being made is that when assessing the legitimacy of the social and political practices and institutions that constitute the normative framework of a community, we ought to adopt a more systemic perspective on what constitutes justice and equality The argument underlying this proposition is that if we were to adopt a perspective that limits our evaluation to the justice or equality found in individual actions or states of affairs we would be missing broader forms of injustice salient to our assessment of legitimacy If I am correct, then we ought to adopt that understanding of equality of opportunity consistent with this more systemic understanding of justice and equality Thus, when faced with the choice between a formal and a substantive conception of equality of opportunity, we are compelled to choose a substantive conception of equality of opportunity because a formal conception is too limited in its scope Finally, to complete the argument: since a republican conception of freedom can accommodate a substan-

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tive understanding of equality of opportunity, whereas a libertarian conception cannot, we ought to prefer a republican conception of freedom Conclusion: Implications of a Republican Understanding of Liberty on Law and Policy Assuming my argument has been convincing, we can now provide an answer to the practical question to which this discussion gave rise Namely, if we adopt a republican account of liberty, what does this imply for our social, legal and political institutions? Generally speaking, since no one can be subject to the arbitrary will of another, everyone must have an equal opportunity to participate in the policy decisions and creation of laws that are to govern their public lives 17 In addition, since non-domination requires that individuals be left to make those choices and pursue life plans and actions that are justifiably within their control, meaning that they do not involve or contribute to the domination of another or violate any other moral prohibition, then there must be a principled and protected distinction between the public political sphere and the private personal sphere This distinction must be based on what non-domination demands In addition to these general implications, a republican conception of liberty has implications for matters of social concern and policy Social norms and/or economic systems that involve or contribute to domination must be addressed For example, one could imagine a scenario in which a system of unrestrained free market capitalism results in disparities in wealth and access to social services that marked the early 20th Century in the United States Even though there was a form of government that arguably satisfied (at least formally) the requirements of political self-determination discussed in the previous paragraph, the disparities in wealth and power were so extreme as to render many, if not most, subject to the arbitrary will of others 18 In this instance, the legal and economic system, whether intentionally or not, combined to create a system of domination One might object that the thought that a republican conception of liberty would imply restraints on free market capitalism is troubling, not so much for the initial intuitive appeal, but because there is no principled basis for stopping the slide from the intuitively acceptable to the morally absurd To be specific, one might take the republican form of liberty to imply a requirement for some form of strict egalitarianism, communism or socialism To begin, there is nothing that makes this a necessary implication of the adoption of a republican form of liberty, though it is conceivable

17 18

Sellers, p  45 Sellers, p  21

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that through a series of choices made by an appropriately politically self-determining community that they may choose to organize their social and economic system around egalitarian, communist or socialist ideals In addition, the objection, as I am conceiving it, makes a conceptual mistake in that it assumes that wealth is the source of domination I would argue that it is not wealth (or poverty) per se that is the source of domination Rather, it is the power that such wealth gives to those who have it over those who don’t The real cause of such domination is that the poor are limited in their abilities to sustain a life worth living outside of the willingness of the wealthy Consequently, they are subject to the arbitrary will of the wealthy This can be rectified by actions far short of what would be implied by strict egalitarian, communist or socialist prescriptions For example, universal healthcare and excellent education, will certainly require some funding from the wealthy, but would not require a complete eradication of all inequalities Further, notwithstanding any communally self-determined choice, a republican conception of liberty limits the extent to which the state can interfere with what is justifiably private and personal As to this last point, it might be claimed that the wealthy are being dominated when we require them to contribute, arguing that such interference is prohibited because how they choose to spend their money is a matter that should be left to them because it is the sort of activity an individual can and should control This objection fails for numerous reasons For one thing, their accumulation of wealth is a source of domination; consequently, it is not the sort of activity that justifiably falls within the scope of an individual’s personal and private life My imagined interlocutor might argue that this demonstrates a conflict internal to freedom as non-domination since to protect against the domination of some we need to interfere with the freedom others The flaw in this objection is that it implicitly employs a libertarian conception freedom, not a republican one Under a republican conception of freedom, one’s freedom is limited to what is justifiably within one’s control If one’s actions involve dominating another, then such activities are not justifiably within their control and, therefore, not an element of their freedom to which they are entitled Consequently, there is no internal conflict Finally, and perhaps most important considering the central question of this inquiry, what implications does the adoption of a republican conception of liberty have for law? In answering this question, it is important to recognize that there is a distinction between systems of law and the content of law Addressing the latter first, laws must protect against domination What this means is that laws must not directly cause or create systems of domination within the political community, nor should they stand if it turns out that, even though unintentional, they have the effect of enabling domination As for systems of law, we can further disaggregate our answer to recognize the difference between the creation and administration of law As for the creation of law,

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laws must be the result of legislative processes that satisfy the demands of political selfdetermination as understood consistent with the demands of freedom as non-domination In other words, and as was discussed above, to avoid domination the legislative processes must insure that no one is being subject to the arbitrary will of others In addition, when seeking to understand the implications the adoption of a republican conception of law has for systems of law, it is necessary to address the administration and interpretation of the law To avoid domination, individuals must be treated equally before the law, to do otherwise would be to subject some to legal restraints while exempting others for arbitrary reasons 19 In addition, in interpreting the law, officials should seek to understand the law from the perspective of non-domination For example, if a judge in applying a statute is faced with alternative interpretations of the statute’s language, one enabling domination and the other not, then the judge ought to interpret the law so as to avoid the potential for domination The argument in favor of a republican conception of liberty presented here is not a deductive argument in which the conclusion follows from the defense of some overarching general principle Rather, I have tried to argue for the adoption of a republican understanding of liberty based on an argument in which the republican conception is consistent with and mutually supportive of a number of other value commitments we have (or ought to have) related to social and political legitimacy The various elements of this broader conception of legitimacy hanging together in a coherent whole, of which republican liberty is a significant part Though not everyone may find it convincing, it will not be enough to argue against one argument or another, rather one would have to address the broader picture which it paints Lastly, I hope that it helps to advance our understanding of the relationship between law and liberty, even if only as a foil for those who disagree

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Sellers, p  20

Law and Emotion: How Empathy Forms Judges’ Sense of Justice Marcelo Campos Galuppo* Introduction1 The main purpose of legal institutions is to provide for justice In order to achieve justice, it is necessary to understand how complex societies develop their sense of justice What is the sense of justice? How does the sense of justice interact with emotion and reason in actual lawsuits? This Chapter addresses these questions As befitting the occasion of this volume, I follow Mortimer Sellers’ argument that emotions and empathy play a very important role in shaping judicial decisions and develop the argument that empathy operates as a kind of analogical translation of someone else’s experience into one’s own experience, leading one to a better understanding the other’s point of view The Chapter begins by discussing what modern behavioral sciences know about decision-making and applying these insights to judges Despite what people say they do, they usually decide first, moved by their emotions, and then look for arguments to support their conclusions Judges are not different; they generally begin by discerning what they consider to be the fair result, and then they look further to find statutes or precedents that support their conclusions Like other people, judges are moved by their emotions, which critically includes the sense of justice From there, I distinguish between actual justice and the sense of justice I then explain the mechanism by which the sense of justice operates  – empathy Empathy creates the possibility of translating analogically someone else’s experience into one’s own, in order to understand it Using the examples of the cases Brown v. Board of Edu-

* 1

Professor of the Philosophy of Law at the Pontifical Catholic University of Minas Gerais and at the Federal University of Minas Gerais I want to thank professor Mortimer Sellers and Professor Colin Starger for their attentive reading of the draft as well as for their very important remarks, which helped to clarify some points of this chapter I want also to thank CNPq and CAPES (Proex Puc Minas) for the scholarships they provided

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cation and Ledbetter v. Goodyear Tire & Rubber Co, I show how judicial empathy not only facilitated better understanding of the cases, but also provided basis for action and commitment Finally, since the sense of justice is not justice itself, I explain how we need to harness reason in order to avoid emotivism and to differentiate a just from an unjust sense of justice 1. How Do Judges Decide Lawsuits? Jerome Frank used to say that judges first decide their cases, and then look to find statutes and precedents that support their decisions Frank observed that The process of judging, so the psychologists tell us, seldom begins with a premise from which a conclusion is subsequently worked out Judging begins rather the other way around – with a conclusion more or less vaguely formed; a man ordinarily starts with such a conclusion and afterwards tries to find premises, which will substantiate it 2

More recently, Mercier and Sperber have argued that we can often explain faulty reasoning if we recognize that people cling to their first impressions, accepting only those arguments that support their preconceptions, and overlooking everything else 3 According to Kahneman, we can better understand this dynamic with the help of Slovic’s concept of affect heuristic, which is “an instance of substitution, in which the answer to an easy question (How do I feel about it?) serves as an answer to a much harder question (What do I think about it?) ”4 Kahneman further suggests that “people let their likes and dislikes determine their beliefs about the world Your political preference determines the arguments that you find compelling If you like the current health policy, you believe its benefits are substantial and its costs more manageable than the costs of alternatives ”5

2

3 4 5

Jerome Frank, Law and the Modern Mind, 108 (Gloucester: Peter Smith, 1970) Karl Llewellyn emphasized a different point but arrived at a similar conclusion: “Judges may sometimes follow a different path, sometimes using argumentative reasoning from the very beginning My point is not that judges always begin with emotion, but rather that their decisions depend to some extent on their emotions Even when the judges rely on their experiences, rather than on their actual emotions, their background is also shaped by their emotions ” Karl N Llewellyn, The Bramble Bush, 230 (Oxford: Oxford University Press, 2008) Hugo Mercier & Dan Sperber, Why do humans reason? Arguments for an argumentative theory, 34 Behavioral and Brain Sciences 57 (2011) Daniel Kahneman Thinking, Fast and Slow, 139 (New York: Farrar, Strauss and Giroux, 2011) Daniel Kahneman Thinking, Fast and Slow, 103 (New York: Farrar, Strauss and Giroux, 2011)

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If Frank, Mercier and Sperber, and Kahneman are correct – and a broad literature supports their conclusions6 – then, at a minimum, one must agree that it is not statutes and precedents alone that guide judges’ decisions How is what judges say they do connected to what they really do? The key to answer this question is to recognize that judges operate at two levels of reasoning. According to Palombella, judges have to achieve two tasks when they take lawsuits into consideration: first, they must decide the case, which is an intuitive action, and second, they have to justify their decision, which is a conscious cognitive action 7 The first level of reasoning is almost always unconscious The second level, to which the legalist conceptions of judicial behavior expressly refer, is always a conscious one The first level uses what Carlos Santiago Nino called explanatory reasons, and the second level uses what he called justifying reasons: The explanatory reasons identify themselves with motives They consist of mental states that are causal antecedents to certain actions The central event of explanatory reason or motive is given by a combination of beliefs and desires (…) The justifying or objective reasons are not useful to understand why someone performed an action, or maybe to predict the performance of an action, but to evaluate it in order to determine whether it was good or bad from different points of view 8

As Atienza elaborates, To say that the Judge decided (…) due to his strong religious beliefs is to enunciate an explanatory reason; to say that the Judge’s decision was based on a particular interpretation of Article 15 of the Constitution is to state a justifying reason Generally, the courts or administrative agencies are not required to explain their decisions: what they need to do is to justify them 9

Now, the fact that it is not customary for judges to articulate their explanatory reasons does not mean that explanatory reasons have no role in the decision-making This recalls Reichenbach’s context of discovery, the freewheeling activity of discovering or enunciating a scientific theory that Reichenbach contrasts with the context of justification, the methodologically controlled activity of scientific theory’s demonstration

6

7 8 9

For example: Charles L Barzun, Jerome Frank and the Modern Mind, Virginia Public Law and Legal Theory Research Paper (2009–10); Richard Posner, How Judges Think 19 (Cambridge: Harvard University Press, 2010); Timothy P O’Neill, Timothy P Law and “The Argumentative Theory” 90 (3) Oregon Law Review 837 (2012); Malcolm Gladwell, Blink: the Power of Thinking Without Thinking, 296 (New York: Back Bay Books, 2007) Gianluigi Palombella, “La conoscenza nell’interpretazione (un modelo per la giurisdizione)” in Jose Calvo Gonzalez, Verdad [Narracion] Justicia, 71 (Malaga: Universidad de Malaga, 1998) Carlos Santiago Nino, La validez del derecho, 126 (Buenos Aires: Astrea, 2012) Manuel Atienza, As razoes do Direito: Teorias da Argumentacao Juridica, 22 (Sao Paulo: Landy, 2000)

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This distinction usefully tracks the difference between explanatory reasons and justifying reasons Like scientists, judges engage in both freewheeling thinking and more carefully reasoned justification 10 In short, Reason alone cannot predict the outcome of a lawsuit because judges’ decisions do not depend on Reason alone Whether they admit it or not, many other factors besides Law influence how judges decide cases Sometimes, as Richard Posner observes, the “outcome of Supreme Court cases can be predicted more accurately by means of a handful of variables, none of which involves legal doctrine, than by a team of constitutional law experts ”11 Sometimes political preferences, philosophical ideas and religious conceptions push judges to decide as they do Sometimes they decide based on how they expect others will react to their decisions – especially appellate courts, the executive branch, and even the People 12 And sometimes it is just judges’ personal sense of justice, including their emotional reactions, that leads them to decide as they do This sense of justice is what concerns us most 2. The Sense of Justice To understand the sense of justice, we must first examine justice itself Justice distinguishes legitimate law from illegitimate political power Some equate justice with positive law, as Hobbes does 13 Yet equating justice with positive law is completely at odds with ordinary usage, since people frequently assert that specific laws are unjust Moreover, various forms of oppression are also rightly called unjust and that is not due to the absence of positive law Justice, then, is not simply positive law Instead, we may follow Aristotle and distinguish between two different but related conceptions of justice 14 First, justice means following a certain rule One might be said to act unjustly by parking across two parking spaces, leaving no room for others This is unjust because it is forbidden by a rule of law 15 Second, justice also means equality Imagine a professor who gives an annoying student a bad grade on a test even though the student

10 11 12 13 14 15

For example, Justyna Holocher, Kontext der Erfindung und der Begrundung in der Wissenschafts- und Rechtsphilosophie, 4 (96) Archiv fur Rechts- und Sozialphilosophie 469 (2010) and Manuel Atienza, As razoes do Direito: Teorias da Argumentacao Juridica (Sao Paulo: Landy, 2000) Richard Posner, supra, 24 Richard Posner, supra, 29 One might advance another reason for explaining why judges decide cases like they do: compliance with an institutional agreement that binds them to respect the Law See Oliver Wendell Holmes, The Common Law, 464 (Mineola: Dover Publication, 1991) Thomas Hobbes, Leviathan, 90 (Cambridge: Cambridge University, 1991) Aristotle, The Nicomachean Ethics, 257 (Cambridge: Harvard University, 1962) This example also demonstrates the second conception about what justice is: justice as equality As stated, both conceptions are connected to one another

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performed as well as her peers This is unjust because the professor treated a similarlysituated person differently for no good reason Even someone who was unconnected to the mistreated student could legitimately argue that the professor did not act justly 16 Equality, of course, can be understood in different ways Suppose for example that I would like to share a cake between two people How should I split it? One way to answer this question would be to say that the cake should be split into two equal pieces, especially if we take into account only the two people who will receive the two shares What if we realize that one of these people gave $ 2 to buy the cake while the other gave $ 4? In this case, if we take their contributions into account, perhaps we should split the cake into three pieces and give one of them to the first person and two of them to the second one 17 Depending on context, either solutions may be said to be equal and therefore just Although it is sometimes difficult to decide which form of justice is to be applied to any given situation, it is not controversial to state that justice takes the two basic forms just described Justice can mean both following the rules and fostering equality In practice, people usually do not disagree about what justice is abstractly, but rather about what justice requires in particular cases In other words, people disagree about their sense of justice The sense of justice can extend to different feelings – about what law is, whether law should be obeyed, and even what law should be when it does not fit our conception of justice 18 We can further define the sense of justice as: An emotion, widely felt, that responds to perceived oppression or corruption or unfairness in society Justice can be both an inarticulate sense, informed by our social proclivities, and a reasoned judgment that comes to the same (or different) conclusions There will be gaps and differences between the emotional and the rational perception of justice and the same is true of all human emotions19

This definition follows some remarks that Hume made centuries ago According to Hume,

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17 18 19

This is an important remark, since precedents in the United States and other countries establish that only someone who has suffered a personal harm can argue the unconstitutionality of a rule of law Unlike the procedural requirements of law, justice requires universal legitimacy, and therefore even people who are not directly concerned by an unjust situation can claim that it is unjust Aristotle, supra, 267 Manfred Rehbinder, Questions of the legal scholar concerning the so-called sense of justice, 5 J Social Biol Struct 344 (1982) Mortimer Sellers, “Law, Reason and Emotion”, In: Marcelo Campos Galuppo Et Al. Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies: Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy, 73 (Stuttgart: Steiner, 2015)

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the sense of justice is not founded on reason, or on the discovery of certain connections and relations of ideas, which are eternal, immutable, and universally obligatory … Twas … a concern for our own, and the public interest, which made us establish the laws of justice; and nothing can be more certain, than that it is not any relation of ideas, which gives us this concern, but our impressions and sentiments, without which everything in nature is perfectly indifferent to us, and can never in the least affect us The sense of justice, therefore, is not founded on our ideas, but on our impressions20

Modern theorists have also argued that the sense of justice encompasses the way law is lived by the people Spanish constitutionalist Pablo Lucas Verdu says that it “shows up itself as a more or less intense affection for the just and the fair in human coexistence ”21 Andràs Sajo makes a similar argument 22 We can further understand the sense of justice by comparing it to the sense of injustice The sense of injustice can be defined as “an emotional response to recognizing that one’s expectations have not been met … and that misfortune could somehow have been avoided ”23 We perceive what is right and what is wrong in an intuitive, not conscious way, although we can always be wrong about our perception This perception is mostly cast by the way we react emotionally to a situation Although justice proper and the sense of justice may overlap, this is not always the case Sometimes, due to cultural biases shaping our own points of view, we claim something is just even though it neither follows the rules nor fosters equality Due to bias, for example, we might easily label as just a state of affairs that profits only us Yet this state of affairs only makes us more equal than others and would not be just at all, since equality doesn’t allow that someone be more equal than other people If we labelled it otherwise, it would simply reflect a faulty sense of justice 3. Emotions, Empathy, and the Law Some scholars think that law is only a matter of reason and that emotion has no place in law However, since the dawn of the Twentieth century, other scholars have noted that there is strong connection between a judge’s sense of justice and her emotions Given this, these scholars have argued that we need to understand how judges react to

20 21 22 23

David Hume, A treatise on Human Nature, 547 (New York: Penguin Books, 1969) Pablo Lucas Verdu, O sentimento constitucional: Aproximação ao estudo do sentir constitucional como modo de integração política, 53 (Rio de Janeiro: Forense, 2004) Andras Sajo, Constitutional Sentiments, (New Haven and London: Yale, 2011) Frank P Zinni, The Sense of Injustice: The Effects of Situation, Beliefs, and Identity 76 (2) Social Science Quarterly 420 ( Jun 1995)

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their emotions in order to develop a more sensible theory of judicial decision-making As Martin Hoffman says, For decades, legal scholars and philosophers from Kant to Rawls assumed that the law and its underlying justice principles are, and should be, cleansed of emotion so that reason and logic can prevail Recently, however, legal scholars have acknowledged that emotions inevitably influence not only legal judgments and decisions by jurors and judges, but at times law’s very substance24

Let us then try to understand how the sense of justice and other emotions work, assuming that they are not faulty Aristotle argued that emotions (pathos), mental faculties (dynameis), and moral dispositions or habits (hexis), are the causes of human behavior 25 According to Abbagnano, we can define emotions (pathos) as Any state, movement or condition, which produces in an animal or in a person the value’s perception … that any situation has for life, its necessities and interests … It is every affection of the soul, followed by pleasure or pain … an immediate reaction of every living creature to favorable or unfavorable situations26

In a shorter way, emotions are “those feelings and appetites that move us to action of their own accord”27 Some think that it is irrational to follow emotions, but this is not really the case Scholars who deny the legitimacy of emotions sometimes point to Kant, who apparently stated that only reason could provide the motive for moral action 28 These scholars fervently oppose any reliance on the inclinations (and emotions) in moral matters 29 Yet Kant did not actually believe that every inclination or emotion should be avoided; rather, he recognized that it is possible for a person to have good inclinations, i. e., inclinations that accord with reason 30 Inclinations are only bad if they conflict with reason For example: if reason tells me not to steal, but inclination leads me to steal, that would be a bad inclination On the other hand, if emotion leads me to cherish my 24 25 26 27 28 29 30

Martin L Hoffman Empathy and Prosocial Behavior In Michel Lewis et alii, Handbook of Emotions 450 (3rd ed New York, London: The Guilford Press, 2008) Aristotle, supra, 87 Nicola Abbagnano, Dicionário de Filosofia, 311 (2nd ed Sao Paulo: Martins Fontes, 1998) Mortimer Sellers, supra, 79 Immanuel Kant, Groundworks of the Metaphysic of Morals, 65 (New York and Evanston: Harper Torchbooks, 1956) Robert C Solomon, The Emotions of Justice, 3 (4) Social Justice Research 356 (1989) This would mean that inclination coincides with reason As Kant said, “If a rational creature could ever reach the stage of thoroughly liking to fulfill all moral laws, this would mean that there would not be in him even the possibility of a desire that would provoke him to deviate from them”, despite the fact that only an angel could actually behave in this way Immanuel Kant, Critique of Practical Reason, 71 (Cambridge: Cambridge University, 1997)

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wife, I do no wrong since reason also tells me the same thing As inclinations, emotions can point in the right direction We must therefore exclude the idea that emotions are the opposite of reason Indeed, psychological research has shown that emotions “have a cognition, even a logic of their own In questions of justice, in particular, the question what is rational cannot even be broached until we have consulted our emotional intuitions concerning what is fair and what is not ”31 Neuroscience has also demonstrated that emotion is similar to conscious cognition since it, like reason, is goal-intended behavior 32 Of course, there are important differences between emotional logic and reason Emotion’s logic usually works on ordinal scales, as values do, while reason tends to work with cardinal scales While cardinal scales work with countable performances (wealth, IQ, etc ), ordinal scales work with uncountable performances (beauty, intelligence, etc ) 33 Given this, it is usually impossible to translate emotions into cardinal measurements At the same time, it would be wrong to suppose that emotions are only cultural and local Cross-cultural studies have shown similarities in the way people from different cultures feel and express their emotions as well as and how they react to similar circumstances 34 More recently, Guillermina Jasso has shown that culture does not determine all aspects of the sense of justice 35 Even though emotions have a cultural aspect, they are not exclusively cultural 36 As Mortimer Sellers says, “emotions are … deeply embedded in social practice, which may vary from place to place [Nevertheless,] [p]eople experience anger, disgust, contempt, shame, guilt, gratitude and so forth in much the same way everywhere, but not always for the same reasons ”37 Emotions thus appear to be universal, while their expression, display and causes can be shaped by culture 38 The same can be said of reason

31 32 33

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Solomon, Supra, p  357 Yuri I Alexandrov, Mikko E Sams, Emotion and Consciousness: Ends of a continuum, 388 (387), Cognitive Brain Research 25 (2005) Jasso, Culture and the sense of justice, p  16 I need to explain what I mean by countable and uncountable Let’s take wealth and beauty into account to understand these concepts Wealth raises (and decreases) in an arithmetical way Anyone who has got US$ 1,000,000,01 is richer than someone who has got US$ 1,000,000 00 We can say that X is US$ 00 01 richer than Y So, we can build up an arithmetical scale that fits everybody But we can’t do it with beauty We can only say that X is more beautiful than Y, that X is the first one and Y the second one (for example, in a beauty pageant), but we can’t say that X is +1 more beautiful than Y See, e. g. Jonathan Haidt, “The Moral Emotions,” in: R J Davidson, K R Scherer, H H Goldsmith (eds ), Handbook of Affective Sciences (2003), pp  852–870 Jasso, Culture and the sense of justice, p  15 Martin Hoffman, Empathy and Moral Development: Implications for Caring and Justice, 283 (Cambridge: Cambridge University Press, 2000) Mortimer Sellers, supra, 76 Ibid , 83

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Many theorists believe that the main mechanism through which emotions shape behavior is empathy This idea was firstly presented by the Scottish Moralists for whom “the basis of morality had to be emotion, not reason … [and] we are all endowed by nature … with the all-important natural sentiment of sympathy”39 More recently, both Martin Hofmann and Andràs Sajo have noted that empathy is the basic mechanism through which emotions shape the sense of justice 40 Empathy, a kind of emotion, or pathos, can be defined as “an emotional state or situation, in which one feels what the other feels or would normally be expected to feel in his situation ”41 Empathy can be understood either as “the cognitive awareness of another person’s … thoughts, feelings, perceptions, and intentions” or as “the vicarious affective response to another person ”42 In either event, empathy involves “psychological processes that make a person have feelings that are congruent with another’s situation than with his own situation,” which leads someone to help someone else 43 Empathy thus helps explain how emotions (and the sense of justice) influence our decisions The most important empathetic behavior that a judge engages in is empathy towards the persons engaged in a trial 44 It is probable that the sensation of feeling the same way that others do (whether or not the feeling is the same in fact) also makes us feel compassion for those persons Empathy translates another person’s experience into our own experience in an analogical way,45 and thus in accordance with an ordinal scale The distress that I feel in knowing that someone is suffering (or rejoicing) makes me act as if it were happening to me Our common vulnerability makes us feel empathy 46 And it is our imagination that makes us recognize our own vulnerability in the vulnerability of others 47 39 40 41 42 43 44

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46 47

Robert C Solomon, The Emotions of Justice, 3 (4) Social Justice Research 356 (1989) Martin L Hoffman, supra, p  451; Andras Sajo, supra, 152 Martin L Hoffman Empathy and Prosocial Behavior In Michel Lewis et alii, Handbook of Emotions 440 (3rd ed New York, London: The Guilford Press, 2008) Martin L Hoffman, Empathy and Moral development, 29–30 Ibid , 30–31 The second kind of empathy is the empathy that judges develop towards the legislators Through empathy, the judge sees herself as someone who belongs to the same community as the lawmakers, no matter how far apart they are in time and space Without empathy, the judge cannot assess how biding a statute is, nor understand what the statutes mean I think it happens in an analogical way because one can’t live the life of another, but one can try to understand it by comparing one’s own experiences to someone else’s experiences They are not the same, but since we find a relevant similarity between our feelings and emotions and experiences with someone else’s feelings and emotions and experiences, we can better understand her case or her standpoint Nussbaum, Poetic justice, 65 Since a broad humanistic and literary education seems to widen our imagination, as David Carr shows in an inspiring paper (On the contribution of literature and the arts to the educational cultivation of moral virtue, feeling and emotion, 34 (2), Journal of Moral Education, 137 ( June 2005)), we should not neglect the role of Philosophy, History, Comparative Studies and even Literature in legal education

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Let me introduce two examples to show how emotion (and empathy) can shape the judge’s decision The first example is Brown v. Board of Education.48 Martin L Hoffman has explored the following question: how is it possible that, given the composition of the court, the Justices managed to reach a unanimous decision?49 Hoffman notes that in Brown, the attorneys for the National Association for the Advancement of Colored People relied less on conventional legal argumentation than on empathy narratives to show how South Carolina’s School segregation policy in particular destroyed black children’s selfrespect  … The NAACP also employed social science testimony, including the famous study of black children who preferred white dolls and labeled black dolls as “bad ”50

This approach was ultimately successful Chief Justice Warren and the other Justices thought empathetically, which was achieved by translating the segregation to other situations in the Justices’ lives Emotions and empathy thus played a major role in Brown Although the decision can be rationally justified based on law, the Justices first came to judgment about the outcome guided by emotion, and then looked for legal reasons to ground their decision This is a familiar dynamic As Colin Starger points out: While … doctrinal argument primarily proceeds via appeals to reason (logos) and authority (ethos), … pathos provides an emotional impetus to accept … doctrinal interpretation above that of the majority … Pathetic arguments may not assert propositions about constitutional meaning, but pathos plays an integral role in persuasion and is unavoidable when judgment is at stake 51

Fair interpretation of legal rules actually requires this kind of emotional involvement by judges Law should be understood as a cooperative endeavor either to reach the common good or to provide a common interpretation ground that fits the existing positive rules 52 Empathy is vital As Deigh says, To interpret a law soundly, one must be sensitive to the perspectives of the different people whose interests the law affects or is liable to affect if applied to their situation Sound interpretation of law, in other words, requires empathy And when a law is interpreted without empathy for those whose interests it affects, when it is instead applied on the basis of a ‘strict’ reading, then the outcome is as likely as to be grossly unjust53

48 49 50 51 52 53

Brown v. Board of Education of Topeka, 347 U S 483 (1954) Martin L Hoffman, supra Martin Hoffman, id , 451 Note that Hoffman’s reference to “legal argumentation” aligns with the previously discussed concept of “justifying reasons” whereas Hoffman’s reference to “empathy narratives” aligns with “explanatory reasons ” Colin Starger, Constitutional Law and Rhetoric, 18 U PA J Const L, 1347, 1358 (2016) Deigh, 79 Empathy, justice and jurisprudence Deigh, supra, 79

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The second example of how empathy informs (or doesn’t inform) the judicial sense of justice is Ledbetter v. Goodyear Tire & Rubber Co.54 The case concerned a sex discrimination claim by Lilly Ledbetter After twenty years on the job, she was receiving significantly less pay than any other male manager in her position She sued and was able to show that the supervisors who conducted her performance reviews had a bias against women The Jury awarded her back pay and damages The Eleventh Circuit reversed the decision on statute of limitations grounds, holding that her complaint had been untimely 55 Before the Supreme Court, Ledbetter argued that each monthly payment in itself was an act of discrimination, and that the discrimination continued on through all the time The Supreme Court upheld the lower court decision and deemed her complaint untimely Writing for the majority, Justice Samuel Alito held that only discriminatory pay decisions triggered the time limit for filing and that later effects of past discrimination did not reset the clock According to Deigh, Nowhere … in the opinion does Alito take Ledbetter’s perspective and attempt to understand at what point someone in her situation would realize that she had been the victim of sex-based discrimination in pay and that the harm was great enough to warrant taking action Nor does he ever take Goodyear’s perspective 56

In other words, Justice Alito was not empathetic towards either plaintiff or defendant By contrast, Justice Ruth Ginsburg expressed empathy in her dissent, arguing that the majority’s decision was wrong precisely because it failed to take into account the plaintiff ’s difficulty in realizing that discrimination was depressing her wages: Comparative pay information … is often hidden from the employee’s view … Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves … It is only when the disparity becomes apparent and sizable … that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain Her initial readiness to give her employer the benefit of doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex 57

Perhaps the fact that Justice Ginsburg is also a woman (and probably knows what it means to be a woman in what society still considered to be a man’s role) helped her to understand the case in a more empathetic way

54 55 56 57

Ledbetter v Goodyear Tire & Rubber Co , 550 U S 618 (2007) Ledbetter v Goodyear Tire & Rubber Co , 421 F 3d 1169 (2005) Title VII requires a complaint 180 days “after the alleged unlawful employment practice occurred” Deigh, supra, 80 Ledbetter v. Goodyear Tire & Rubber Co., 550 U S at 645 (Ginsberg, J , dissenting)

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Empathy is not a conscious cognitive property itself, but rather a precondition that leads us to understand both the case and the law when we see ourselves in the role of the people engaged in the trial or in the role of the lawmaker Empathy produces in us the kind of emotions that lead us to action: Humans seem to have a natural preference for fairness, reciprocity and equity … From this preference stem the beliefs that people should get what they deserve on the basis of performance, effort, good deeds, and character … When one sees others being treated unfairly or unjustly – getting less than they deserve, being deprived of their rights, or being punished too severely – the preference for fairness is violated, and this may transform empathic distress into a feeling of injustice, including motivation to right the wrong 58

Besides the fact that emotions (and empathy, as a special kind of emotion, of pathos) help us to understand someone else’s point of view, emotions also help to produce action in two ways According to Andràs Sajo, emotions first make us move in order to respond to someone else’s emotions, providing us an “action plan” and “action tendency”59 Second, emotions act as signals that work as “‘commitment devices’ in situations where the temptation of defection are high, which makes signaling to others credible Because of the commitment signaled by intensive emotions, people can count on others for future cooperation ”60 For example: if someone is at risk of falling from a wall, using emotion to urge people to help her will convey to those people that she really needs help There are, therefore, two ways that emotions can shape a judge’s decision First, emotions can make the judge more empathetic to someone else’s circumstances and inspire her to behave in such a way as to fight injustice Second, the judge will trust someone more easily if she feels that that person expresses the emotions that she expects that person to express, since it is harder to lie about what someone feels than about what someone thinks or says What kind of emotions evoke the empathy that our sense of justice requires? As Martha Nussbaum says, any emotion can matter if it involves: Intentional thought or perception directed at an object and some type of evaluative appraisal of that object made from the agent’s own personal viewpoint This appraisal ascribes significance to the object in terms of the agent’s scheme of goals and ends Thus, we do not grieve for every death in the world, but only for death of people who appear to us to be important in our lives; we fear not all bad events, but only those that seem to pose some serious threat to our projects 61 58 59 60 61

Martin L Hoffman, Empathy and Prosocial Behavior, p  447 Andras Sajo, Constitutional Sentiments, 16 (New Haven and London: Yale, 2011) Andras Sajo, supra, 16 Martha Nussbaum, Political Emotions: Why Love Matters for Justice, 399 (Cambridge/London: Belknap, 2013)

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But the leading emotion that guides judge’s decision, and her empathy, is the sense of justice itself As Mortimer Sellers says, The preeminent human emotion in any discussion of Law is the sense of justice This feeling concerns the right order of society and arises in the face of unfairness, oppression, exploitation, or any of the many other transgressions through which someone may violate the precept according to which all members of society should have the opportunities to live worthwhile and fulfilling lives Thus, the sense of justice arises most often in response to injustice 62

Of course, there are also other emotions that matter, such as rage, contempt, disgust, vengeance 63 Compassion, caring and love matter too 64 Norberto Bobbio suggested once that it is probable that law can no longer be defined by its structure, and therefore it should be defined by its function65 Bobbio argued that law can be more easily enforced if we encourage right action with rewards, instead of punishing wrong action On this view, law can more easily achieve its purpose if it relies on love and compassion rather than retribution or punishment This should encourage greater attention to restorative justice, which draws on love and generosity to produce more just results 66 4. The Dangers of Emotivism, or, Correcting the Sense of Justice: Back to Reason The sense of justice, reflecting empathetic reactions to others, becomes “a formal prerequisite for judicial decision-making as well as for jury deliberation, for legislative action as well as for police behavior ”67 Yet the sense of justice alone does not decide the case 68 Rather, it only “sets the framework within which justice is possible ”69 As Kahneman argues, “the primacy of [emotional] conclusions does not mean that your

62 63 64 65 66 67 68

69

Mortimer Sellers, supra, 79 Solomon, supra, p  372 Solomon, supra, p  360; Martha Nussbaum, Political Emotions: Why Love Matters for Justice. Norberto Bobbio, Dalla Struttura alla Funzione: Nuovi Studi di Teoria del Diritto (Bari: Laterza, 2007) For example: Michael Wenzel & Tyler G Okimoto How Acts of Forgiveness restore a sense of justice: Addressing Status  / Power and value concerns raised by transgressions, European Journal of Social Psychology, 40, 401 (2010) John Deigh, Empathy, justice and jurisprudence P 29 Therefore, reason is not just an emotion’s servant First, there are many other ways in which reason matters (for example, providing neutral assumptions about what justice is to assess our sense of justice) Second, as it corrects emotions and the sense of justice, reason is important to distinguish between what seems to be just at the first glance and what is really just One could say that it requires equally both in order to provide a just and fair decision John Deigh, supra, idem

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mind is completely closed and that your opinions are wholly immune to information and sensible reasoning ”70 Moreover, although emotions take priority in shaping the sense of justice behind judicial decisions, we cannot rely on them alone to find a just result since emotions can be biased by cultural and personal experiences As we saw, the sense of justice is an important ally of justice, but it is not justice itself Alasdair Macintyre has pointed out that the problem with Moore’s emotivism, as presented in Principia Ethica, is that, once moral decisions are based only in emotions, there is no way to decide which one is better than the others, and therefore no way to differentiate justice from injustice 71 That is why we must come back to reason Reason helps us distinguish justice from injustice and justice from the (faulty) sense of justice In other words, emotions alone cannot provide justification for law and for law enforcement In fact, emotions provide no justification at all, but rather require it As Colin Starger says, “if it stood alone … Pathos would in fact be illegitimate … because [it] defends no proposition” about law 72 Unlike emotions’ expression, reason has an appeal to universality As Mortimer Sellers says, Reason begins with axioms, asserted as true, while emotions begin with feelings, accepted as real ‘Emotions’ are those feelings and appetites that move us to action to their own accord (ex+movere), while ‘reason’ implies correct assessments about the nature of things … Both motivate action, and often concern the same questions, but reason purports to guide and regulate the emotions, by determining when they are useful or appropriate, and when they are not 73

Reasoning is useful when applied to emotions in three ways: First, reasoning provides a consistent differentiation between the right emotions, the emotions we should have (and, therefore, the just emotions, since justice refers always to the ought-to-be world) and the wrong emotions, the emotions we should avoid, between a faulty sense of justice and justice itself Reason answers the question “how should I act?”, while emotions answer the question “What do I want?”74 As Sellers says, Reason purports to guide and regulate the emotions, by determining when they are useful or appropriate, and when they are not This in turn implies a standard, or purpose, in the

70 71 72 73 74

Kahneman, supra, (103) Alasdair MacIntyre, After Virtue (3rd ed Notre Dame: University of Notre Dame Press, 2007) (discussing G E Moore, Principia Ethica (Mineola: Dover, 2004)) Colin Starger, supra, 1358 Mortimer Sellers, supra, 72 Mortimer Sellers, supra, 76

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light of which to evaluate emotions, and perhaps to bring emotional responses into better accord with reason and reality 75

This is the case because emotions, unlike reason, have a very particular character, and must be understood as an empiric datum 76 Second, reason makes it easier to convince other people about what is felt to be just As Rehbinder says, “the sense of justice requires rational explanation in order to be accepted by others … Therefore, it is not surprising that legal scholars agree that the sense of justice has, besides its emotional component, also a strong rational one ”77 Third, reason allows people to coordinate their emotions, invoking a common standard that only reason can provide Sellers believes that “coordination requires a standard, beyond the immediate experience of the emotion itself The unstated emotional rules of human interaction do in fact supply a very useful basis for human society, but a basis that can be very much improved by applying human reason to questions of justice ”78 Once reason evaluates emotions, they both together can provide a better standard for legislation and judicial activity Conclusion As we saw, justice, at least as an outcome of a lawsuit decision, depends, on a great deal, on the sense of justice, which can be understood as an emotion, i e , a pathos, characterized as a kind of empathy The way that judges usually rule their cases shows us that they usually decide firstly the case based on empathy and the sense of justice and then look for reasons for doing so That’s why, as Mortimer Sellers points out, we should pay more attention to the sense of justice as a ruling mechanism in decision making It doesn’t mean that emotions, empathy and the sense of justice alone could explain what is a fair decision, but they are required to achieve, along with reason, a fair decision

75 76 77 78

Mortimer Sellers, supra, 72 Jasso, supra, 15 M Rehbinder, supra, p  344 Mortimer Sellers, Supra, 76

A Short History of the Idea of National Law: The Exception Becomes the Rule Andrés Botero-Bernal* 1. Introduction1 Needless to say, this paper has teaching intentions Metaphorically speaking, it is an appetizer, and like any good appetizer, it only seeks to entice the diner Therefore, this paper does not seek to replace the brainy books that give complete lessons in the history of law; it is very modest in its ambitions It searches, contrary to the technical and superficial spirit that dominates legal education,2 to provoke the reader to be interested in knowing the history of his discipline and his profession (for which he can use the papers reviewed in the footnotes) Now, having clarified the general purpose of this essay, we must set our course It turns out that the liberal models of the nineteenth-century formation of jurists managed, as one might expect, to cement the idea that the law cannot be conceived outside the Nation-State, which allows jurists to this day to speak naturally of a Colombian or a French Law, as if law had always been tied to the existence of the Nation-State 3 But the imposition of this legal myth,4 involved great transformations in many fields, especially in the way jurists thought about the foundations of law For example, this myth is paired with the assumption by jurists that law is dependent on the existence of Nation-States, which involved creating a history of how the Nation created the State,

* 1 2 3 4

Professor at the School of Philosophy, Industrial University of Santander (UIS), Colombia Email: aboterob@uis edu co or botero39@gmail com Orcid: 0000-0002-2609-0265 Scopus ID: 55604950500 Special thanks to Professor Joshua J Kassner for his idiomatic revision and his suggestions to the present paper Martha Nussbaum, “La crisis silenciosa” en Sin fines de lucro: ¿Por qué la democracia necesita de las humanidades?, Martha Nussbaum (Buenos Aires: Katz, 2010) 19–31 Cf Paolo Grossi, El novecientos jurídico: un siglo posmoderno (Madrid: Marcial Pons, 2011) Paolo Grossi, Mitología jurídica de la modernidad (Madrid: Trotta, 2003)

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which predominated in Europe, or how the State created the Nation, for Hispanic America 5 There is not, however, enough space here adequately to discuss the background conditions, arising in the eighteenth century and consolidated in the nineteenth, that led to the political and cultural construction that managed to impose an idea that today is dogma: that, as a historical matter, the law has always been national and statist But we can, to some extent, give account of a silenced history, looking to provide the contemporary jurist with a better understanding of his discipline and his profession, as result of better understanding the history of law With this practical limitation in mind, how are we to accomplish the task we have set for ourselves? In summary, the discussion will proceed with a general recounting, based only on the most basic structure, about how the law became a normative framework susceptible to expropriation by the State and, with it, the consolidation of the idea that law can only be law if it is intimately connected with or created by a Nation-State 2. High Middle Ages In the High Middle Ages, five different legal systems coexisted These legal systems could be distinguished by their respective commitment to universals or particulars, depending on the nature of what was required for validity 6 Notwithstanding these distinctions, and despite having their differentiating characteristics, the conceptual and practical barriers separating these five systems were not watertight Instead, the normative and institutional exchanges between them were constant and fluid There were three universal systems First, natural law, which was a product of the communion of God’s norms and human institutional interpretation, understood according to the worldview of the Patristic doctrine or doctrine of the Fathers of the Church (Ambrose of Milan, Jerome of Stridon, Gregory the Great, Isidore of Seville and, especially, Augustine of Hippo, among the most renowned) 7 Second, Roman law, which at that time was comprised of the customs and texts that – it was believed – 5

6 7

“Tal parece que en la América hispana, el acto de imaginar la nación pasaba primero por imaginar el Estado” Oscar Almario, “Del nacionalismo americano en las Cortes de Cádiz al independentismo y nacionalismo de Estado en la Nueva Granada, 1808–1821”, en Los colores de las independencias iberoamericanas: liberalismo, etnia y raza, ed Manuel Chust e Ivana Frasquet (Madrid: Consejo Superior de Investigaciones Científicas, 2009), 213 Too: Andrés Botero, Modelo de lectura del constitucionalismo provincial hispanoamericano: origen del constitucionalismo antioqueño (Medellín: Universidad de Medellín, 2010), 200–221 We will follow the classification proposed by: Manuel García Pelayo, Del mito y de la razón en el pensamiento político (Madrid: Revista de Occidente, 1968) 65–97 Gonzalo Soto Posada, Filosofía medieval (Bogotá: Universidad Pedagógica Nacional y Librería San Pablo, 2007), 319–365 Mario Ossa Henao, “El derecho natural” en Filosofía del derecho, coord Andrés Botero (Medellín: Universidad de Medellín, 2012), 110–113 (85–142)

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came from the ancient Roman Empire This was not so much the law of the City – Urbs – but of the provinces And, over time, it mixed with the legal-political systems of the invading barbarian peoples that arrived later, which we will call, broadly speaking, vulgar Roman law 8 Third, and finally, canon law, which was attributed to the Church through which not only were religious rites regulated, but also earthly matters intimately related to the faith and the ecclesiastical institution that, for the time, was mostly all customary and diocesan, because each diocese had its own relatively autonomous law in front of the pontifical canon Each of these three systems were considered universal because validity was, in principle, applicable to all peoples known at that time, by mandate of God (natural law), the old Empire (Roman law) or the Church (canon law) In addition, each system claimed for itself the character of universal because each one of them attributed to itself the truth, as established by God On the other hand, there were two particular legal systems, the law of the estates of the realm and the territorial law In such systems, the law was not universally applicable, since different legal systems were valid for particular classes of people First, as to the law of the estates of the realm, among the estates there were different groups defined by their standing within a community, either because of their social position (general estates: nobles, clergy and serfs) or their activity In each case, each estate was governed by their own rules It was common that they were acquired by purchase, custom, or donation by the prince or the Church (corporations or special estates, such as, for example, a sector of merchants who acquired legal privileges) In addition, there are the territorial laws or fueros (charter or forum), which were the legal norms, fundamentally customary, that governed in specific territories There were, in fact, hundreds of special legal regimes, since each general estate, each corporation or special estate and each focused territory, had its own juridical norms But to simplify the matter, we have decided to reduce them to a classification scheme to facilitate our explanation The array of distinct legal systems that existed at the time supports the conclusion that during this period, there was very strong legal pluralism Finally, since liberal mythology in the nineteenth-century was accustomed to the mistaken belief that society is viable only if there is a unified legal system founded in the State, legal pluralism was thought to be synonymous with chaos and anarchy However, in practice, the different normative systems in the High Middle Ages rarely produced irresolvable antinomies in practice This was due, in part, to the fact that civil society was so strongly linked to Christianity, then litigation was resolved mostly in

8

Max Kaser, “El Derecho romano-vulgar tardío”, Anuario de Historia del Derecho Español 30 (1960): 617–631 Ernest Levy, West Roman Vulgar Law, The law of property (Philadelphia: American Philosophical Society, 1951)

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moral or religious fora9 Social customs also did much to promote social stability, given their wide degree of acceptance in the population 3. Low Middle Ages In the twelfth century there was a significant change for the legal culture: justinian law (made in the VI century) reappeared, universities emerged (first in Bologna and Paris) with their corresponding legal studies that led to the profession of lawyer, and the mendicant orders were born (initially Franciscans and Dominicans) The interesting thing is that these three phenomena were interdependent, strengthening each other 10 Notwithstanding this, we will focus on a concrete manifestation of the reciprocal relationship that existed between them It turns out that the universities, especially that of Bologna, when they first began to provide instruction in legal studies, made a strategic decision to teach the universal forms of law, since the teaching of particularist legal systems would be of interest only to the local inhabitants, and it was an objective of the university to attract students from all over Europe, which would reactivate the economy of the city 11 Instruction in Roman law was based in Justinianic law, as it was considered to be the best and most cultured model of Roman law, but it was taught within the scholastic ius naturalist framework promoted specially by the members of the mendicant orders This coordination between the two universals (Roman law and natural law), taught at a university full of students and professors from all over Europe, is what we will call mos italicus.12 In this way, the university, through its members and what was taught, was global, or

9 10 11 12

Paolo Prodi, Una storia della giustizia: dal pluralismo dei fori al moderno dualismo tra coscienza e diritto (Bologna: Il Mulino, 2000) García, Del mito …, 97–140 Gonzalo Soto Posada, Diez aproximaciones al medioevo (Medellín: Universidad Pontificia Bolivariana, 1998) 69–93 (capítulo “La presencia de lo económico, político y social en el desarrollo de la universidad medieval (Siglo XII al siglo XV)”) In this paper we will refer tangentially to two of the three main models of understanding or reading Roman law: italicus, gallicus and germanicus The first one prevailed in the University of Bologna and in which it achieved a wide influence, especially between the 12th and 15th centuries, a model in close connection with scholasticism The second is found in the University of Paris and the institutions over which this achieved some ideological control, closely associated with humanism and rationalist natural law, fundamentally present between the sixteenth and seventeenth centuries The third was placed especially in the German nineteenth century, as a reaction to the French exegetical movement, and refers to the new way of seeing Roman law by the German Historical School About it: Harold J Berman, La formación de la tradición jurídica de Occidente (1983) (México: Fondo de Cultura Económica, 1996) 130–153 Equally, Hernán Valencia Restrepo, Derecho privado romano, 3ª ed (Medellín: Señal editora, 1998), 213–222

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rather, universal (hence the name of the institution) 13 This contributed to this law becoming, little by little, valid not only for the cities that housed the universities but for all of Europe This was due in large part to the fact that the princes and the papacy had an interest in it being so, and because the students, when returning to their homes, took the law that was taught at the universities with them, allowing its proliferation 14 In short, Justinianic law became the basis of the medieval ius commune thanks to the rise of the universities and the legal education they provided to the new profession of lawyer and to the mendicant orders 15 Despite this, the five legal systems were maintained, at least formally However, due to the circumstances mentioned above, much changed in terms of the content of the legal systems in question The natural law was no longer read in patristic terms but from the new university canon Specifically, the scholastic view differed theologically from what had been defended by the Fathers of the Church Among the scholastics were several members of the mendicant orders, including Thomas Aquinas Roman law was no longer based on the provincial and vulgar Roman law which was highly customary, rather it became a written law, respected as the best compilation of cultured Roman law, namely the Justinianic law Canon law progressively abandoned the essentially diocesan customs and compilations; thanks to the thrust of the mendicant orders, of the university (with its schools of canons – canonical law – and theology) and Justinianic law became more pontifical (that is, issued under the authority of the Roman Supreme Pontiff) and essentially written This process of adaptation and strengthening of the universal legal systems meant the beginning of a slow but sure process of weakening the particularist legal systems (the estates and the territorial laws) The first phase of this weakening was the ius commune itself The princes and the papacy assumed as their own objective, the task of weakening the particular systems with the promotion of “good law”; that is, the ius commune, Justinianic law and university-based understandings The resulting reduction of juridical pluralism, thanks to the ius commune, would allow, as indeed it did it, a concentration of the power of the governor This was due, in part, because the ius commune, being a law that retook institutions from the imperial ius civile, started from the fact that power and law were attributes of the (Roman or Byzantine) Emperor; a function that was claimed by the princes and the Pope for their own benefit 16 13 14 15 16

Gonzalo Soto Posada, Diez aproximaciones …, 57–68 (capítulo “Santo Tomas de Aquino y la universidad”) In the case of Spain: Antonio Pérez Martín, “Los colegios de doctores de Bolonia y su relación con España”, Anuario de Historia del Derecho Español 48 (1978): 5–90 Paolo Grossi, L’ordine giuridico medievale (Roma-Bari: Laterza, 1995) Alexis Tocqueville, El antiguo régimen y la revolución (1856) (Madrid: Alianza editorial, 1989), tomo I, 77–105 (libro II, capítulos II–VI) Likewise, this centralization of power went hand in hand with the passage of the medieval king-judge to the modern active-king That is, the passage of the jurisdictional regime (the prince understood fundamentally as a balancing power, with a passive and

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This process of weakening the particularist legal systems was made in several ways, for example: i) With written and intentional recompilations of customs and particular laws, which included elements of the other legal systems – the fruit of prolonged exchange between the five laws, under the proper scheme of ius commune and natural law Thus, these recompilations managed to domesticate particularist legal systems for two reasons: the recompilation was focused on what interested those in power, the rest was then, with the passage of time, forgotten; and by submitting what was compiled to the basic scheme of the ius commune, it reduced autonomy and power of the laws of the estates and territorial laws But the result of these recompilations was, not an unequivocal universalist legal system, rather it produced a hybrid legal system, with an intermediate form of validity grounded in personal and territorial considerations ii) Princes promulgated fueros or territorial laws for cities or territories that requested them or that were instituted while they were conquered Fueros were built under the logic of the ius commune and facilitated the increasing closeness between the ius commune and the territorial laws, giving rise to a hybrid law shared between cities and territories iii) Princes, through their increasingly strong participation in the pursuit of justice within their societies, sought to ensure that the rulers/judges applied the ius commune or the hybrid law, instead of particularist laws 4. Modern Age In the Modern Age, we find the consolidation of the idea of the individual, with a selfwill and the owner of his destiny, which in the legal field gave rise to the concept of subject or legal person17 and the strengthening of the proposition that contract is a source of obligations Also the appearance of the mos gallicus was deeply linked to Renaissance, Humanism18 and Rationalism,19 all in an environment of increased centralization of power The Pope collected power to the detriment of the bishops, and the kings did so at the expense of the feudal lords, the cities and estates Here we see a significant change in the number of legal systems Each prince appropriated the hybrid law that governed his domains and privileged it over other legal systems, both when establishing what should be taught and what should be applied This

17 18 19

administration-centered government of justice based on rules discovered in the History) to the enlightened monarchy (with a nation in consolidation, with a more active government, even a legislator – a law based on the will – that begins to take control of the economy, etc ) Alejandro Guzmán, “La introducción del concepto de derecho-facultad (“derecho subjetivo”) en la ciencia jurídica y en la política”, Legal Roots: The International Journal of Roman Law, Legal History and Comparative Law 1 (2012): 23–61 António Manuel Hespanha, Cultura jurídica européia: síntese de um Milênio (Florianópolis (Brasil): Boiteux, 2005), 255–258 Hespanha, Cultura jurídica …, 293–297

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hybrid system was denominated as ius patrium, law of the king, royal law or own law Thanks to the growing influence of mos gallicus, along with other movements (Such as Humanism, Renaissance, Rationalism, etc.) and the increasing power of kings, these patrium or hybrid systems were consolidated and imposed on the same ius commune It was no longer about teaching and applying the ius commune to the detriment of particular systems, but rather the application of the own or royal law to the detriment of the ius commune This hybrid law did not have pretensions as strong as those of the universal systems, because it was not for the whole “Christian civilization”, but it was not as weak as those of particularist systems, since it did not seek to restrict itself to certain specific groups or territories In this sense, hybrid law is an intermediate law between universals and particularist laws, because it was neither targeted to everyone nor to just a few It was a system in which the territories of the king, taken as a general unit, became the scope of jurisdictional validity This is the reason why this hybrid law gradually abandoned scholastic Latin, which was common to Europe, and assumed the language that was outlined as the official or as the most used in this general territory In this way, the hybrid law, when expressed in a territorial language – and no longer in Latin – consolidated and institutionalized that language adopted as the official national language 20 In conclusion, formally speaking, the three universal and two particularist systems continued to govern, but in practice there arose between them, and with great force, a new intermediate form, the patrium, own or royal law.21 The gradual consolidation of royal law gave rise to the fact that, over time, a national law was spoken of as an essential part of any legal system, and the other systems (universal and particularist) would only be applied to the extent that they helped that national law In the eighteenth century, as a projection, and in the nineteenth as an actuality, we see the emergence of the modern State in the strict sense and, with it, of legicentrism; that is, the proposition that there is only one valid law, idea of the nature of law that we shall call legal monism In this case, the only valid law would be law issued or authorized

20

21

In the case of Castile (Spain): Johannes Kabatek, “¿Cómo investigar las tradiciones discursivas medievales? El ejemplo de los textos jurídicos castellanos”, en Lengua medieval y tradiciones discursivas en la Península ibérica: descripción gramatical – pragmática histórica – metodología, editado por Daniel Jacob y Johannes Kabatek (Frankfurt/Madrid: Vervuert Iberoamericana, 2001), 97–132 Italo Birocchi, “La formazione dei diritti patrî nell’Europa moderna tra politica dei sovrani e pensiero giuspolitico, prassi ed insegnamento”, en Italo Birocchi e Antonello Mattone (a cura di), Il diritto patrio tra diritto comune e codificazione (secoli XVI–XIX) (Roma: Viella, 2006), 17–71 About the german case: Klaus Luig, “Il diritto patrio in Germania”, en Italo Birocchi e Antonello Mattone (a cura di), Il diritto patrio tra diritto comune e codificazione (secoli XVI–XIX) (Roma: Viella, 2006), 91–100 To Castile (Spain): Maria Paz Alonso Romero, “Derecho patrio y derecho común en la Castilla moderna”, en Italo Birocchi e Antonello Mattone (a cura di), Il diritto patrio tra diritto comune e codificazione (secoli XVI–XIX) (Roma: Viella, 2006), 101–126

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by the State 22 Legicentrism addressed two initial challenges to such legal monism The first was to provide a singular understanding of the law through codification, especially the civil code 23 For example, Kant considered that the law schools should not claim a “public use of reason” (i e , full autonomy) He did not wish law professors to teach anything contrary to the civil code of the State 24 The second, was the total suppression or, in the best of cases, the marginalization of the other legal systems, which ceased to be as strong as they were in the Middle Ages; a process that resembles expropriation The law, formerly common and of the estates, was now the property of the State In this way, hybrid law became royal or own law, and ultimately state law State law, however, no longer served as a metaphorical trunk from which other legal systems emanated as if they were branches, but as the only valid law The consolidation of state law depended, as we said at the beginning, on a series of transformations in many fields, that ended up resetting the jurist’s mind, making him believe that law, throughout history, marched triumphantly from its barbaric medieval state25 until its greatest civilizing moment in joining, as in an infinite embrace, the State This idea of a linear progression in the history of law, ended up making us believe that there is no worthwhile law outside the Nation-State, which meant ignoring the past or reading it in a capitalist key (economically), nationalist (socio-politically),26 statist (politico-institutionally), and legiscentrist (legally) As an example, the most recalcitrant Romanists reconstructed history in the nineteenth century to show Roman law as if it had been the national law of the Roman state that protected private property Already with this short and very general explanation, we realize that the law, in its history, is more accurately described as “glocal” (global-universal and local-particular) than as nation-statist But if we are allowed to go further, the experience and the idea of a state law, an intermediate system between the universal and the particular, is already in crisis 27 This crisis is increasingly palpable when one considers the globalization of 22 23

24 25 26 27

Maurizio Fioravanti, Los derechos fundamentales: apuntes de historia de las constituciones, 2ª ed (Madrid: Trotta, 1998), 25–53 Pietro Costa, Soberania, representação, democracia: Ensaios de história do pensamento jurídico (Curitiba: Juruá Editora, 2010), 235–284 Pio Caroni, “El código para una nueva sociedad” en Lecciones catalanas sobre la historia de la codificación, Pio Caroni (Madrid: Marcial Pons, 1996), 39–52 Paolo Cappellini, “Il codice eterno: La Forma – Codice e i suoi destinatari: morfologie e metamorfosi di un paradigma della modernità”, en Codici: Una riflessione di fine millennio, Paolo Cappellini e Bernardo Sordi (Milano: Giuffrè, 2002), 11–68 Carlos Petit, “Derecho civil e identidad nacional”, InDret: Revista para el análisis del Derecho 3 (2011): 1–36, disponible en http://www indret com/pdf/843_es pdf Immanuel Kant, La contienda entre las facultades de filosofía y teología, trad Roberto Rodríguez (Madrid: Debate-CSIC, 1992) Soto examines the terrible image that was imposed, in the eighteenth century, of the Middle Ages: Soto, Filosofía medieval …, 13–44 On how history was reconstructed so that the dogma of nationalism-statism emerged, see: Eric Hobsbawm y Terence Ranger (Eds ), La invención de la tradición (Barcelona: Crítica, 2002), 107–171 Stefano Rodota, “¿Cuál derecho para el nuevo mundo?”, Revista de Derecho Privado 9 (2005): 5–20 Luigi Ferrajoli, Derechos y garantías (Madrid: Trotta, 1999), 125–175 (capítulos “La soberanía en

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law that is presented to us with the increasing advocacy for rights and norms every day more universals (for example, think about the universalization of human rights,28 the global expansion of the lex mercatoria of economic globalization29 or the strengthening of the supranational law that governs the destinies of Europe) and more local (with the strengthening of cultural identities and rights of minorities that demanded the recognition of their own customs30) We are ad portas of a glocal law, which reminds us, to some extent, of the past 31 The challenge for political philosophy and for the philosophy of law is how to prevent legal pluralism and legal glocalism generate chaos that puts the social system in danger, especially since the controls that were in place in the Middle Ages are no longer pertinent to the multicultural society of today In other words, if we continue with our quantitative example, the idea that human culture has lived under a state law, under legal monism, is the exception not the rule Our belief in the myth of state law under legal monism is thanks to the strength with which we have been indoctrinated with the ideas of capitalism, nationalism, statism and legicentrism When it comes to how humanity has conceived its legal forms, we have been led to believe that the exception was the general rule

28

29 30

31

el mundo moderno”) Luigi Ferrajoli, “La crisis de la democracia en la era de la globalización”, Anales de la Cátedra Francisco Suárez 39 (2005): 37–51 Eduardo Rodríguez, “Globalización jurídica y su impacto en el derecho interno”, Opinión Jurídica 11, no 22 (2012): 145–160 Francisco Vásquez, “Impacto de la globalización en el mundo jurídico”, Opinión Jurídica 8, no 15 (2009): 17–28 Gregorio Peces-Barba, “La universalidad de los derechos humanos”, Doxa 15–16 (1994): 613–633 Aspecto que sigue generando interesantes debates, verbigracia: Neil Walker, “Universalism and particularism in human rights”, en Human Rights: The Hard Questions, ed Cindy Holder y David Reidy (Cambridge (UK): Cambridge University Press, 2013), 39–58 Rex Martin, “Are human rights universal?” en Human Rights: The Hard Questions, ed Cindy Holder y David Reidy (Cambridge (UK): Cambridge University Press, 2013), 59–75 Tony Evans, “Universal human rights in the global political economy”, en Human Rights: The Hard Questions, ed Cindy Holder y David Reidy (Cambridge (UK): Cambridge University Press, 2013), 174–192 Manuel Restrepo, “Adaptación del modelo de Estado y del derecho nacional a la globalización económica y compatibilización con la vigencia del estado social de derecho”, Opinión jurídica 11, N° 21 (2012): 73–82 Alain Touraine, ¿Qué es la Democracia?, 2ª ed , trad Horacio Pons (México: Fondo de Cultura Económica, 2000), 15–34 (specially, p  26) Joaquín Bosque Maurel, “Globalización y nacionalismo: una reflexión”, en La ciudad y las ciencias sociales: ensayos y aproximaciones, ed Fabio Zambrano y Germán Mejía (Bogotá: CEJA, 2000) Ángel Aday Jiménez Alemán, “Derecho global”, Eunomía 11 (2016–2017): 237–245

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Jiménez Alemán, Ángel Aday “Derecho global” Eunomía 11 (2016–2017): 237–245 Kabatek, Johannes “¿Cómo investigar las tradiciones discursivas medievales? El ejemplo de los textos jurídicos castellanos” En Lengua medieval y tradiciones discursivas en la Península ibérica: descripción gramatical – pragmática histórica – metodología, editado por Daniel Jacob y Johannes Kabatek, 97–132 Frankfurt/Madrid: Vervuert Iberoamericana, 2001 Kant, Immanuel, La contienda entre las facultades de filosofía y teología, trad Roberto Rodríguez (Madrid: Debate-CSIC, 1992) Kaser, Max “El Derecho romano-vulgar tardío” Anuario de Historia del Derecho Español 30 (1960): 617–631 Levy, Ernest, West Roman Vulgar Law, The law of property. Philadelphia: American Philosophical Society, 1951 Luig, Klaus, “Il diritto patrio in Germania”, en Italo Birocchi e Antonello Mattone (a cura di), Il diritto patrio tra diritto comune e codificazione (secoli XVI–XIX) (Roma: Viella, 2006), 91–100 Martin, Rex “Are human rights universal?” en Human Rights: The Hard Questions, editado por Cindy Holder y David Reidy Cambridge (UK): Cambridge University Press, 2013 59–75 Nussbaum, Martha “La crisis silenciosa” en: Sin fines de lucro: ¿Por qué la democracia necesita de las humanidades?, Martha Nussbaum Buenos Aires: Katz, 2010 19–31 Ossa Henao, Mario “El derecho natural” en Filosofía del derecho, coordinado por Andrés Botero Medellín: Universidad de Medellín, 2012 85–142 Peces-Barba, Gregorio “La universalidad de los derechos humanos” Doxa 15–16 (1994): 613–633 Pérez Martín, Antonio “Los colegios de doctores de Bolonia y su relación con España” Anuario de Historia del Derecho Español 48 (1978): 5–90 Petit, Carlos “Derecho civil e identidad nacional” InDret: Revista para el análisis del Derecho 3 (2011): 1–36, disponible en http://www indret com/pdf/843_es pdf Prodi, Paolo Una storia della giustizia: dal pluralismo dei fori al moderno dualismo tra coscienza e diritto Bologna: Il Mulino, 2000 Restrepo, Manuel “Adaptación del modelo de Estado y del derecho nacional a la globalización económica y compatibilización con la vigencia del estado social de derecho” Opinión jurídica 11, N° 21 (2012): 73–82 Rodota, Stefano “¿Cuál derecho para el nuevo mundo?” Revista de Derecho Privado 9 (2005): 5–20 Rodríguez, Eduardo “Globalización jurídica y su impacto en el derecho interno” Opinión Jurídica 11, no 22 (2012): 145–160 Soto Posada, Gonzalo Diez aproximaciones al medioevo Medellín: Universidad Pontificia Bolivariana, 1998 Soto Posada, Gonzalo Filosofía medieval Bogotá: Universidad Pedagógica Nacional y Librería San Pablo, 2007 Tocqueville, Alexis El antiguo régimen y la revolución (1856) Madrid: Alianza editorial, 1989 Tomo I, 77–105 Touraine, Alain, ¿Qué es la Democracia?, 2ª ed , trad Horacio Pons (México: Fondo de Cultura Económica, 2000) Valencia Restrepo, Hernán Derecho privado romano, 3ª ed Medellín: Señal editora, 1998 Vásquez, Francisco “Impacto de la globalización en el mundo jurídico” Opinión Jurídica 8, no  15 (2009): 17–28 Walker, Neil “Universalism and particularism in human rights”, en Human Rights: The Hard Questions, editado por Cindy Holder y David Reidy Cambridge (UK): Cambridge University Press, 2013 39–58

Contemporary States of Exception and Rule of Law General considerations from the French State of Emergency November 14th, 2015 – November 1st, 2017 Véronique Champeil-Desplats* Some background information The French state of emergency was created by the Act of 1955, April 3rd, in response to the Algerian war for independence It is an exceptional administrative policing regime involving a derogation of the law and increased administrative police powers for prefects and the Minister of the Interior Since the Ordinance of 1960, April 17th, the Council of Ministers, under the direction of the President of the Republic, has had the authority to declare a state of emergency, which can be declared when there are “situations involving imminent danger resulting from serious breaches of public order” or “in circumstances which, due to their nature and seriousness, have the character of public disaster” (art  1) As a jurisdictional matter, a state of emergency can be enforced in all or part of France as well as in the overseas departments (territories) Regarding the duration of a state of emergency, unless extended, a state of emergency cannot exceed 12 days The parliament can, however, extend the length of a state of emergency by explicitly determining a definitive duration (art  2 and 3), and parliament has broad discretion in determining the extension (6, 3 or 2 months) Furthermore, the events that transpired between 2015 November-2017 November demonstrated how fixing the “definitive duration” does not necessarily provide a significant limitation to the length of a state of emergency, since the identification of a definitive duration was shown to be compatible with successive renewals On the one hand, the declaration of a state of emergency gives the state automatic powers The precise nature of these powers has changed with successive Acts, extending the duration of and modifying the state of emergency adopted in November 2015 The state of emergency has also been affected by the fact that some decisions have been determined to be unconstitutional by the Constitutional Council As a summary

*

Professor in public law, University of Paris-Nanterre

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of the central elements of the powers provided by the state of emergency, the prefects in their department (municipality) can decide: a) to establish curfews, including prohibiting the movement of persons and vehicles at the places and times fixed by decree in order to prevent and avoid harm to the public order and security; b) to identify and define protection or security areas where inhabitants are regulated; and, c) to prohibit persons from staying in any part of the department (municipality) for whom there are serious grounds to believe that their behavior constitutes a threat to public order and security On the other hand, the declaration of a state of emergency makes possible additional powers, the enforcement of which are subordinated to a special decree adopted by the President of the Republic The Act of April 1955 initially permitted the following: day and night administrative house searches; seizure of weapons; control of the press, including entertainment; postponement or prohibition of the sale of certain goods (e g petrol, alcohol, etc ); banning meetings; and, house arrests From 2015, November to 2017, July, Acts that extended and altered the terms of the state of emergency, modified some of those powers New powers were given to the prefect and, more and more, to the Minister of the Interior: the power to dissolve associations or groups involved in the commission of acts causing a serious breach of public order or whose activities would facilitate or incite the commission of such acts; the ability to compel the temporary administrative closure of religious places where hate, violence or terrorism are glorified or provoked; the ability to require identity verification and the inspection of bags or vehicles; and, the ability to extend and, after constitutional review, frame the rules for house arrest As a symbolic counterpart, the Act of 2015, November 16th has rescinded the control of the press and has prohibited administrative searches for certain professions (lawyers, magistrates and journalists) Theoretical approaches The experience of the state of emergency declared in France between November 14th, 2015 and November 1st, 2017, presents many salient and novel questions From a theoretical point of view, it challenges two important assumptions about the relationship between the law and the state of emergency: on the one hand, the relationship between norm and exception and, on the other hand, the relationship between the concepts of the rule of law and a “regime” or “state” of exception It causes one to wonder if the French state of emergency is a state of exception, and if it is compatible with the rule of law If the answer to the former question is yes, what does this imply about the understanding of the rule of law? If we are to understand the concepts of ordinary legislation, exception, state of exception and rule of law, these questions must be resolved A satisfactory answer requires that one consider the French state of emergency in the light of these meanings The challenge is serious and demanding An alternative approach may be to compare the regime of the state of emergency, as defined by the Act of April 3th, 1955 and its successive modifications, to the preeminent theories of states – or paradigms – of exception mobilized in France since November 2015 This alternative approach would

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likely lead to the conclusion that the French state of emergency cannot be understood as a “state” of exception, if a state of emergency is conceived as being opposed to the rule of law As noted above, the state of emergency implemented in France is a special administrative police regime involving the derogation of the law, that overlaps in various and sophisticated forms with the concept and the quotidian life of the rule of law (I) Consequently, there is an argument to be made that there is no conflict with the rule of law, thus undermining this alternative approach The hypothesis put forward here is that the French experience of states of emergency can serve as an example of the political and legal responses that current democratic States, claiming to respect rule of law, bring in response to various security and terrorism challenges The general lessons to be learned from these two years of a state of emergency are that States committed to the rule of law can integrate the enforcement of exceptional norms or legal sub-regimes without undermining their commitment to the rule of law A detailed analysis of the implementation of the French state of emergency reveals several interactions between “ordinary” legislation and an “exceptional” regime, the distinction between them becoming increasingly blurred These interactions highlight the implications such states of emergency, thought to be exceptional and provisional, have for our understanding of the concept of the rule of law What new conceptions of the rule of law result from the fact that the state of emergency has been integrated in a way that respects the rule of law? (II) I. Strength and weakness of the classical paradigms of exception for understanding the French experience of states of emergency. Numerous relationships are revealed when comparing the main contemporary theories of states of exception with the regime of the state of emergency defined by the Act of 1955, April 3rd, and successively modified until July 2017 Notwithstanding this, and in full recognition of the widely accepted understanding of the contentious relationship between the rule of law and states of exception, the French state of emergency should not be understood as a state of exception necessarily opposed the rule of law If anything, assuming the conceptual and analytical distinction between states of emergency and the rule of law are to remain relevant, the state of emergency enforced between November 2015 and November 2017 appears as a hybrid state, or regime, that is linked in sophisticated ways with the rule of law and its ordinary norms So, the analysis of the French state of emergency leads us to refine our understanding of states of exception and their relationships with the rule of law Constructing this new understanding will not be a matter of re-examining the complete theories of authors already well analyzed, but of highlighting their main theses, thus helping us to understand the French state of emergency, and reciprocally, what this understanding of the French state of emergency calls into question Looking to such theses for

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guidance, one is compelled to assess the regime of the state of emergency with (A) the Schmittian problematic of transcendence and sovereign decisions, (B) Agamben’s thesis of suspension of the legal order and, finally, (C) the supposed temporality of states of exception A The French state of emergency in the light of the transcendence and sovereign decision structuring the Schmittian dictatorship Carl Schmitt’s theory of a state of exception1 is built around a strong ontological opposition between an immanent liberal State, entirely framed by the law, and a state of exception that would be transcendent and in which political decision-making regains its sovereignty and supremacy This ontological opposition is also present in Schmitt’s least brutal version of the state of exception, conducted by a “dictator commissioner”, acting temporarily according exceptional – but legal – rules, in order to respond to specific circumstances This conception of the state of exception and of the forms of dictatorship associated with it in Schmitt’s thought, presents deep conceptual differences with the French state of emergency regime Assuming the French state of emergency regime can be considered as an exceptional regime, it is not an alternative to the liberal state and is certainly not a negation of it The Schmittian theory of the state of exception nevertheless offers keys for understanding the experience of the state of emergency in France, but that understanding is constrained by various limitations Among them, we can specially consider the notion of sovereign decision that characterizes the Schmittian state of exception On the one hand, no decision adopted under the French state of emergency is unbounded or can be made without consensus As was noted, the President of the Republic declares a state of emergency in the Council of Ministers, but it is Parliament that extends it and the Prefects and the Minister of the Interior who implement it Moreover, out of respect for the rule of law, all acts relating to the state of emergency are reviewable by judges (Constitutional Council, administrative judges and, trial and appellate judges) 2 On the other hand, due to the political context, the choice by those with the authority to provide judicial review of those acts related to the state of emergency, is most often to confer de facto sovereign power to the executive branch and, particularly, to the President of the Republic

1 2

Carl Schmitt, Dictatorship, Polity Press, November 2013 Council of State, ord., 2005, November 14th, Rolin, req  n° 286835; Council of State, 2005, December 9th, Mme A. et autres, req n° 287777; Council of State, 2016, January 2016, 27th; Ligue des droits de l’Homme, req n° 396220; Constitutional Council, n° 2016–536 QPC, 2016, February, 16th

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There are several other relevant points to be made regarding our understanding and expectations of such judicial review First, the actual exercise of the relevant powers can be discussed considering the exceptional circumstances In a political regime where presidential prerogative prevails, the decisions of the various competent authorities are often reduced to endorsing the presidential will The chance that an opinion that conflicts with the president’s will, becomes highly improbable, especially when security issues are involved For instance, in our case, on the night of 2015 November, 13th, faced with the emergency and gravity of the events, the President of the Republic announced the enforcement of a state of emergency before the meeting of an exceptional Council of Ministers It is the latter that has the legal authority to decide the matter Similarly, as a result of the political consensus on the security issue, the Acts extending and amending the state of emergency were adopted by a large majority Because of the speed of the procedure allowed by the Constitution (arts 42 and 48) for Acts relating to crisis or emergency situations, parliament has done little more than register and support the presidential will Second, the effectiveness of judicial control is not unequivocal Would the Council of State determine the decision of the President of the Republic to declare a state of emergency or recognize the absence of a decision to put an end to it to be illegal? Would the Constitutional Council declare an Act extending the duration of the state of emergency to be unconstitutional? Judicial review is intended to provide some protection, but, for the time being, it is assumed that abuse must be extreme to justify the judiciary’s decision to annul declarations or extensions of a state of emergency In addition, in spite of the power administrative judges have to serve as a check on each administrative decision implementing the state of emergency, a sovereign decision could well regain its relevance based on secret defense information This is of particular concern when the case for individual administrative decisions is based on internal intelligence documents (“white notes”)3 and general decisions based on the argument of foiled attacks In both cases, the information is held and provided by the Ministry of the Interior without the possibility of external detailed verification These experiences of the state of emergency lead to the conclusion that, regarding the sensitive decisions of declaration, extension and ending a state of emergency, judges affirm their power but exercise it with a high degree of self-restraint They therefore leave the sovereign power to the executive and legislative bodies, if not de jure, at least de facto They thus tend not only to legally validate the decisions related to the state of emergency, but also to politically legitimize them

3

État d’urgence – L’empire des notes blanches, lundimatin#45, 25 janvier 2016

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B The state of emergency: suspension, deviation or derogation? In his book devoted to the state of exception, Girogio Agamben4 links states of exception with the suspension of the legal order Agamben’s claim regarding the implications of suspension for the legal order was, nevertheless, called into question when considered from the perspective of a theory of political philosophy based on Foucault’s analyses on contemporaneous forms of governance5 as well as from a general theory of law developed in France by Michel Troper 6 The thesis defended by these authors is that, far from excluding the law, contemporary states of exception are defined by it and filled with binding norms regulating public and private behaviors The case of the French state of emergency and its implementation over two years tends to confirm this analysis It does not operate as a total, nor even a partial, suspension of the legal order; it is not unbounded by normative commitments On the contrary, it could even be distinguished by an increase in normative activity According to the data provided by the Ministry of the Interior, nearly 10000 general and individual legal administrative decisions have been listed 7 This number does not include any judicial decisions relating to the Ministry of the Interior itself Consequently, whatever might be said about the intensity of jurisdictional control, the judges have affirmed their authority to review such legal and administrative decisions Some judgments even reference the ECHR Its application has not been suspended The invocation by French authorities of Article 15 of the Convention allows only some limited derogations, and certain human rights remain beyond derogation Considering this, the experience of these two years of implementation of a state of emergency in France could more closely coincide to the concept of “deviation” proposed by Bernard Manin to characterize his paradigm of exception,8 as well as the concept of “derogation” used by François Saint-Bonnet 9 The former defines the “paradigm of exception” by three criteria: (1) the authorization to deviate from higher norms, such as those contained in the Constitution; (2) the submission to special conditions to address what the exceptional circumstances require; and, (3) the temporal delimi-

4 5 6 7 8

9

Georgio Agamben, State of Exception, The University Chicago Press, 2005 Marie Goupy, “L’état d’exception, une catégorie d’analyse utile? une réflexion sur le succès de la notion d’état d’exception à l’ombre de la pensée de Michel Foucault”, RIEJ, 2017, n° 79, pp  98–99 Michel Troper, “L’état d’exception n’a rien d’exceptionnel”, in Le droit et la nécessité, Paris, PUF, 2011 p  99 http://www2 assemblee-nationale fr/14/commissions-permanentes/commission-des-lois/con trole-parlementaire-de-l-etat-d-urgence/controle-parlementaire-de-l-etat-d-urgence Bernard Manin, “Le paradigme de l’exception L’État face au nouveau terrorisme”, La Vie des idées, 15 décembre 2015; “The Emergency Paradigm and the New Terrorism”, in Sandrine Baume, Biancamaria Fontana (eds ), Les Usages de la Séparation des Pouvoirs – The Uses of the Separation of Powers, Paris, Michel Houdiard, 2008, pp  135–171 François Saint-Bonnet, L’état d’exception, Paris, Presses universitaires de France, 2001

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tation of the deviation 10 The latter characterizes the state of exception as “the meeting point of three elements: the derogation to the ordinary legislation, the reference to an out of ordinary situation and the design of a superior finality” The derogations may concern norms guaranteeing rights and freedoms as well as norms regulating powers of the public authorities 11 To our knowledge, neither author explicitly discussed their concepts of “deviation” or “derogation” with the specific case of the French state of emergency regime as implemented in November 2015 Nevertheless, these concepts can be helpful in analyzing it If the concepts of “deviation” or “derogation” are indeed understood in a strong sense, as meaning the impossibility to invoke constitutional norms, especially those recognizing rights and freedoms, there is not “deviation” or “derogation” to be found in the French state of emergency The only explicit derogation allowed is that provided for in Article 15 of the European Convention on Human Rights But this derogation is strictly defined It is not meant to apply to certain fundamental rights and freedoms It is relevant only in the context of the implementation of a state of emergency The European Court has authority to control some aspects of this implementation, specifically those regarding the protection of fundamental rights, even if it leaves a wide margin of discretion to the Member States 12 In the domestic legal context, if the degree of control depends on the type of decision taken and the authority of the judges, none has, in principle, excluded the application of any constitutional norms Nevertheless, on the one hand, they subject them to a test of proportionality, the outcome of which is most often favorable to the security requirements and to the detriment to constitutional rights or freedoms On the other hand, regarding the specific case of constitutional review, the constitutional Council is now used to neutralize its decisions of unconstitutionality through the power, permitted by article 62 of the Constitution, of modulating the effects of such decisions over time 13 This behavior, as a matter of practical effect, leads to the validation and effectiveness of unconstitutional norms, violating rights and freedoms guaranteed by the Constitution until the moment determined by the Constitutional Council itself This procedure has been regularly used by the Constitutional Council in the institutional frame-

10 11 12

13

Bernard Manin, op. cit François Saint-Bonnet, op. cit., p  27 Vincent Souty, La constitutionnalisation des pouvoirs de crise. Essai de droit comparé, Pdh Thesis, 2015, Junuary, Sorbonne-Nouvelle 3, pp  115 et s; Anaïs Lambert, Laeticia Braconnier Moreno, “La marge de manœuvre de la France dans le déclenchement d’un régime dérogatoire aux libertés fondamentales, une dénaturation de l’article 15 de la CEDH?”, La Revue des droits de l’homme [En ligne], Actualités Droits-Libertés, 22 janvier 2015 See decisions n° 2017–635 QPC, 201, June 9th; n° 2017–624 QPC, 2017, March 16th; n° 2016–600 QPC, 2016, December 2nd; n° 2016–567/568 QPC, 2016, September 23th; n° 2016–536 QPC, 2016, February 19th; n° 2016–535 QPC, 2016, February 19th; n° 2015–527 QPC, 2015, December 22nd

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work intended to control the state of emergency Consequently, if a gap is emerging between the supreme norms and a state of emergency’s legal regime, it is less because of the Act regulating the state of emergency itself than the result of how constitutional review functions under such circumstances C The state of emergency and time: perpetuation and normalization of the exception Limitation in time is one of the key characteristics most commonly associated with regimes of exception This limitation is analyzed as the counterpart of the derogation of legal norms and exceptional measures which these regimes allow the state to adopt In France, the duration of the state of emergency was one of the first and main changes introduced by the Ordinance of 1960, April 17th While the original version in the Act of 1955 did not specify the duration, leaving it to the discretion of the parliament, the Ordinance of 1960 provides that the state of emergency may not last more than 12 days As mentioned above, any extension beyond 12 days must be authorized by law (art  2) which fixes “its definitive duration” (art  3) However, despite this wording, which could have been read to discourage decisions to extend the exceptional regime, each state of emergency declared has been extended by the parliament Moreover, the past two years have shown that neither the legal requirement to determine a “definitive duration” nor the judicial and political repetition that “the state of emergency is not intended to last longer than necessary”14 have not deterred those with the ability to do so from extending this “definitive” duration Between 2015 November 14th and 2017 November 1st, no less than 6 Acts have been successively adopted for extending the duration of the state of emergency The reference to “definitive” duration can therefore no longer be interpreted as strict It only requires that the parliament provides definitive terms for each extension But one Act of extension can be followed by another These repeated extensions of the duration of the state of emergency, followed by the vote of the Act of 2017, October 30th which strengthened internal security measures and intensified the fight against terrorism (SILT), transposing mutadis mutandis several measures of derogation, provided for the incorporation of a state of emergency into ordinary legislation, tending to increase the propensity for regimes of exception to be

14

Minister of Interior, Débats au Sénat, 2016, February 9th; Débats Assemblée Nationale, 2016, December 13th See also Council of State, 2005, December 9th, Mme A. et autres, req n° 287777; Council of State, 2016, January 2016, 27th; Ligue des droits de l’Homme, req n° 396220; Constitutional Council, n° 2016–536 QPC, 2016, February, 16th; Jean-Marc Sauvé: “L’état d’urgence ne peut être renouvelé indéfiniment”, Le Monde, 2016, November 16th

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normalized As noted, for Walter Benjamin, Michel Foucault15 and Giorgio Agamben, these regimes are moving from provisional and exceptional measures to an ordinary “technique of government” 16 Thus, from the first Act extending the French state of emergency, this risk of normalization, of survival “of the extraordinary measures” out of concern for the circumstances that gave rise to them, are concerns that have been frequently emphasized The objectively ascertainable phenomenon caused by the repetition of the exception has initiated a qualitative process, transforming the exceptional regime to a “normal” situation This movement is in France crowned by the vote of the previously referenced SILT Act II. The French state of emergency: a regime of exception within the rule of law The general lesson that emerges from the two years of a state of emergency experienced by the French is a confirmation of the hypothesis that contemporary States with a commitment to the rule of law believe that they can, without inconsistency, accommodate the enforcement of an exceptional legal regime while still respecting the rule of law A thorough assessment of the implementation of an actual state of emergency (A) provides examples of several points of contact between the so-called ordinary legislation and an exceptional legal regime And, (B) such contacts raise questions about the meaning of the rule of law A Porosity between exception and ordinary legislation Regarding the close relationship that regimes of exception maintain with security measures based on ordinary legislation, the hypothesis of a trivialization of the exception is no longer a slogan defended by human rights activists or by philosophers loving paradoxes The abstract concern over the trivialization of the state of emergency is made real in the French legal order In several respects, in addition to the question of the durability of the exception analyzed above, the implementation of the state of emergency since November 2015 has contributed to the blurring of the conceptual and normative boundaries between a regime of exception and ordinary legislation This ambiguity over where the boundaries lie can be understood from three distinct but related perspectives: procedural, teleological, and material

15 16

See Marie Goupy, op. cit., p  106 Georgio Agamben, op. cit., p  12

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At the procedural level, the implementation of the state of emergency, its extensions and its amendments have given rise to several intersections First, the state of emergency regime was amended by four Acts which, at the same time, extended it (Acts of 2015, November, 2016, July, 2016, December and 2017, July) The specific and accelerated procedure provided for in the Constitution (Articles 42 and 48) for voting laws relating to crisis or emergency situations has made it easier to extend the time limits of exceptional legal regimes and to modify the rules defining them The rules of the game were changed at the same time as the game was being played and extended Second, the state of emergency Act was also amended by ordinary legislative procedures (Public Security Act 2017, February 28th) in order to limit the conditions for administrative searches by day and night Third, and finally, the specific and accelerated procedure provided in articles 42 and 48 of the Constitution has not only supported those decisions concerning the state of emergency but also those related to legal provisions external to this exceptional regime The Act of 2016, July 21st has amended several provisions of the Criminal Code, the Code of Criminal Procedure and the Code of Internal Security in order to strengthen anti-terrorism legislation The process is essentially an unjustified usurpation of the ordinary legislative process With respect to teleological considerations related to the justification for the implementation of the state of emergency, the state of emergency regime was intended to do more than prevent similar attacks to the ones providing its original justification In addition to being used to support decisions restricting freedoms in order to prevent “imminent peril”, it has been used to provide the legal basis for decisions that go beyond its “raison d’être” 17 Among the most controversial cases are the house arrest of environmental activists at COP 21, the issuance of hundreds of individual travel bans, the prohibition on demonstrations by social activists, the demarcation of protection zones in refugee camps in Calais, and the evacuation of a squatter’s community in the Paris suburbs Finally, the blurring of the boundaries between exceptional legal regimes and ordinary legislation can be observed through the previously discussed integration of measures which were previously conditioned on the enforcement of the state of emergency into ordinary legislation The legal spirit of the state of emergency was first implemented in several branches of law (public freedoms, administrative police, criminal law and procedure, immigration and asylum legislation, etc ) through the adoption of measures that extended or strengthened the state of emergency There are several examples worthy of our attention First, there was the controversial disregard for usual consultation regarding jihadist websites, which was partially declared unconstitutional by the Constitutional Council Second there was the vote

17

Olivier Beaud, Cécile Guérin-Bargues, L’état d’urgence. Etude constitutionnelle, historique et critique, Paris, LGDJ, 2016, p  150

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of the SILT Act presented as the condition for leaving the state of emergency regime As mentioned, the SILT Act incorporates, with euphemistic language, provisions directly inspired by the state of emergency regime; powers for the prefects to determine “perimeters of protection”, powers to order the closure of places of worship, powers to pronounce administrative house arrest measures, powers to proceed to visits and seizures, etc The perpetuation of the state of emergency is therefore no longer the consequence of its repeated formal and temporal extensions It is a result of its material integration mutatis mutandis into ordinary legislation without any limitation of duration, nor requirement of exceptional circumstances conditioning its implementation or extension In other words, the so-called “ordinary legislation” becomes less and less ordinary and comes to be defined in negative terms of the right of exception It is a right whose implementation is not conditioned by an exceptional event B Transformation and weakening of the concept of the rule of law The integration of the state of emergency, as well as other kinds of exceptional legal regimes, within the framework of the rule of law, tends to transform the classical conception of the rule of law, according to which the State is required to respect fundamental rights and freedoms; a conception that has informed the reconstruction of the legal orders of contemporary democracies since the Second World War As a result of such integration, the concept of the rule of law is less about the requirement that the State respect fundamental rights and freedoms and more about the priorities of and objectives sought in exceptional legal regimes First, (1 ) the State is giving supremacy to security requirements, second, (2 ) the State, which is interfering with rights and freedoms it has been required to respect under the classical conception of the rule of law, is promising compensation for such interference, and, third, (3 ) in targeting its enemies, the State has built a legal regime around the derogation of legal norms, supposed to be specific to those enemies In other words, the substantial conception of the rule of law is transforming respectively into formal-security, compensatory and discriminatory conceptions 1. The formal-security conception of the rule of law Those within the executive branch of the French government have never failed to affirm their commitment to a substantial conception of the rule of law, requiring respect for fundamental rights and freedoms Nevertheless, their speeches are full of proposals asserting the priority of security Consequently, the rule of law is gradually reduced to a formal conception that, in a state of emergency, only requires that the state be

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subjected to the law without greater consideration of the substance of legal prescriptions Moreover, when the content of this conception of the rule of law is considered, it affirms the primacy of security considerations, regardless of the nature of the limits opposed to police powers 18 Everything therefore happens as if the rule of law were compatible with “two states”, a “normal” state in which fundamental rights and freedoms must be perfectly protected and a “state of exception” in which some of them could be temporarily set aside “because the legislation or the Constitution provides for this suspension or limitation” 19 The completion of this conceptual shift is reached when the state of emergency is no longer presented as only an exceptional regime implemented within the rule of law which then must be articulated with its norms and is instead thought of as much more, as a condition, a “shield” of the rule of law In this way, assuming this military metaphor, the Minister of the Interior has recalled many times, “The state of emergency is not the opposite of the rule of law; it is when the situation requires it, a shield” 20 Finally, based on a well-known dialectic built around the conceptual relationship between freedom and security, the state of exception tends to come first The state of exception is imposed “given the situation”, as a perfect and inescapable means to protect fundamental rights and freedom and the rule of law 21 2. A compensatory conception of the rule of law Many references to the rule of law during the French experience of the state of emergency tend to support a compensatory conception of the rule of law, according to which violations of rights and freedoms by police and other authorities can be justified by security reasons and the victims of such violations can claim compensation 22 The rule of law is then reduced to the possibility being compensated in the event of damages This approach is often based on an overvaluing of judicial review and legal compensation However, the mere institution of these procedures does not ensure that the judges satisfactorily address the victims’ claims On the one hand, not all victims whose rights and/or freedoms have been violated during the implementation of the state of emergency are able to pursue a judicial appeal Victims may ignore the pro18 19 20 21 22

See for instance, Manuel Valls, Prime Minister, “Examen du projet de loi de révision constitutionnelle”, 2016, February, 5th Wanda Mastor, François Saint-Bonnet, “De l’inadaptation de l’état d’urgence face à la menace djihadiste”, Pouvoirs, 2016, n° 158, p  53 National Assembly, Speech, 2015, november 20th; National Assembly, Question to the government 2015, december 1st; National Assembly, Speech, 2015, december 2nd, National Assembly, 2016, February 9th … See Wanda Mastor, François Saint-Bonnet, op. cit Manuel Valls, Prime Minister, Speech, National Assembly, 2015, december 23rd

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cedures or choose not to use them, thinking that a trial would be futile On the other hand, even for those who might choose to pursue a legal remedy, the possibility to appeal does not mean that the trial will be won since in the French administrative legal system a presumption of legality is often made to the benefit of the administration Finally, in material terms, the compensatory judgments have reduced the concept of the rule of law to an average compensation of $ 1000 USD for approximately 200 people, more than a year after the violations committed by the authorities 23 3. A discriminatory concept of the rule of law The measures adopted during the state of emergency have tended to target certain groups and individuals 24 In other words, the enforcement of the state of emergency was largely painless and almost imperceptible for a large part of the population Yet it was very intrusive and restrictive of rights and freedoms for a small part  It may explain why the protests expressed by activists or by French and European institutions dedicated to the protection of human rights have had very little impact Anyway, the lesson is that individuals are not equal in front of the new scales of justice in the emerging “suspicious society” 25 Faced with a state of emergency, as with other forms of emergency regimes, it is better not to be a Muslim, an ecologist, an extreme leftist activist, or to be diagnosed with psychiatric troubles 26 Police practices under the auspices of emergency legislation, and claimed to be a part of the fight against terrorism, might transform the rule of law into a “discriminatory state of police” 27 Conclusion To begin, the experience of two years of a state of emergency in France has confirmed the propensity of exceptional legal regimes to be perpetuated and to become commonplace It also highlights the capacity of contemporary democracies, committed to

23 24 25 26 27

Voir http://www2 assemblee-nationale fr/15/commissions-permanentes/commission-des-lois/con trole-parlementaire-de-l-État-d-urgence/controle-parlementaire-de-l-État-d-urgence; Paul Cassia, “indemnisation des perquisitions administratives de l’état d’urgence”, Blog Médiapart, 25 mars 2017 Nils Muiznieks, Council of Europe Commissioner for Human Rights, “Luttons contre le terrorisme dans le respect du droit”, Le Monde, février 2016; Defensor of rights, Rapport annuel d’activité, 2016 Mireille Delmas-Marty, “De l’état d’urgence au despotisme doux”, Libération, 16 juillet 2017 https://www francetvinfo fr/sante/maladie/lamalgame-entre-terrorisme-et-maladie-mentalena-pas-de-sens_2350947 html Patrick Weil, “Le projet de loi antiterroriste rappelle le code de l’indigénat”, Le Monde, 2 septembre 2017

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the rule of law, to incorporate exceptional regimes that derogate from ordinary legislation and restrict fundamental rights and freedoms These exceptional regimes integrate the ordinary and regular functioning of public authorities This situation makes it inappropriate to defend a strict opposition between, on the one hand, the norm and the exception and, on the other hand, the rule of law and the state – or regime – of exception More precisely, if conceptual oppositions are possible and relevant from an analytical point of view, the experience of the implementation of exceptional regimes within states based on the rule of law shows the ability of contemporary governments to make them coexist, rather than to present them as alternative forms of the exercise of power With the French state of emergency experience, as with other emergency regimes or exceptional legislation, we are not dealing with general and absolute suspensions of the rule of law and its requirement that rights and freedoms be respected; rather, we are faced with partial limitations and derogations These limitations are in principle procedural and formally limited to the circumstances for which the exceptional regime has been declared However, the French experience puts in light the predisposition of emergency regimes to be invoked to govern situations external to the circumstances, the emergency being invoked to justify their implementation In other words, the implementation of exceptional regimes within the framework of the rule of law is a matter of porosity, blurring the exceptional and the ordinary legislation, at both practical and theoretical level The French experience of the state of emergency may be one of the laboratories in which the degree to which contemporary societies committed to the rule of law are able to accept limitations on rights and freedoms justified by security requirements is being tested It could also be an in vivo illustration of the clear-sighted reflections that Michel Foucault proffered regarding exceptionality in liberal states As Marie Goupy sums it up, this would indeed imply “in no way” a “suspension of law”, nor “the brutal assertion of the power of sovereignty” It would rather illustrate “a completely different way of exercising power” which, through exceptional legislation and the use of surveillance technologies, are the expression of a “security pact, i. e. the implementation of forms of population management involving the regulation of flows and the control of the particular case” Such a form of government would then shape “a new stage in the development of the liberal State, one in which the ‘State’ is never more than the name given to a set of techniques of government acting in particular situations by controlling and preventing risks” 28

28

Marie Goupy, “L’état d’exception, une catégorie d’analyse utile? Une réflexion sur le succès de la notion d’état d’exception à l’ombre de la pensée de Michel Foucault”, op. cit., p  106

Questioning the Moral Understanding of Law Marijan Pavčnik* I. Introduction Boris Furlan says: ethics is “potential law – law is topical ethics ”1 Furlan’s point must not be understood literally A literal understanding would mean that law and morality are – where they overlap – equivalent The thought about morality as the possible and future law and about the law as the current morality is a metaphor, which should not be allowed to conceal the important differences between law and morality If we follow Kant, the fundamental difference is that the law refers to man’s external behaviour (the so-called external lawgiving), whereas moral rules are internalized and based on man’s morality (Germ Sittlichkeit) 2 Kant expressly states that one can imagine external lawgiving, in which the lawgiver produces a system of positive laws, “but then a natural law would still have to precede it, which would establish the authority of the lawgiver (i e , his authorization to bind others by his mere choice) ”3 II. The Issue of Legal Positivism The fact that positive law must have ethical foundations if its claim to authority is to be valid and if it is to be effective in the long run, does not exclude legal positivism Legal positivism separates law and morality (the so-called separability thesis), but not because positivists deny that the law must have moral foundations, but instead because positivism’s object of investigation is merely the positive law The pure legal positivist

* 1 2 3

Professor of Law, University of Ljubljana, Poljanski nasip 2, 1000 Ljubljana, Slovenia E-mail: (Marijan Pavcnik@pf uni-lj si) An earlier version of this article was published in Danube: Law and Economics Review, 2017, Vol  8, Iss 2, p  111–116 Furlan (1921, p  22) See Kant (1990, p  53 [219]) Kant (1990, p  60 [224]) The English quotation is taken from Kant (1996, p  17)

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tries to answer “the questions of what the law is and how the law is made, not the questions of what the law ought to be or how the law ought to be made ”4 Legal positivism can be considered corrupt if it employed to justify any positive law irrespective of its possible lack of morality In fact, this is not legal positivism as a science but an apologetic legal positivism as a servant of politics Scientific legal positivism has other and different ambitions Its ambition is to identify the properties of valid law and to try to understand positive law as it is We have a clearing before us where it can be distinctly seen who the players are and what possibilities they face when making legal decisions Such scientific legal positivism does not bother me at all I even believe that such positivism is wholly compatible with those views about law that deal with contentrelated issues A prerequisite for a content-related discussion is a good knowledge of the valid law, of its structure and of its possible meanings III. Basic Human Rights as the Modern Natural Law No one involved in the practice of law can avoid moral issues He must be blind who thinks that he can make legal decisions without being required to solve moral issues as well We must be careful, as we are moving on slippery ground The primary content-related framework we are bound to is one grounded in basic human rights as established in the constitution Basic human rights are a legacy of our civilisation and legal culture, and such rights boast such a solid and far-reaching consensus that only a “dogmatic sceptic” (G Radbruch)5 can doubt it The catalogue of these rights in constitutions is an achievement of natural law entering constitutional law 6 The law of basic human rights is no supra-statutory law, but an integral part of positive (constitutional) law It is in the nature of basic human rights that, as a tradition, they represent the moral foundation of the law and, as a legal (constitutional) act, they represent, as to their content, a sufficiently open framework, which can be further developed This also applies to basic constitutional principles Basic human rights are connected to these principles (e g to the principle of the rule of law) and, to a considerable extent, they possess themselves the nature of principles

4 5 6

Kelsen (1992, p  7) Radbruch (2006, p  15) See Hassemer (2002, p  135–150)

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IV. Basic Human Rights as Legal Principles It is said that legal principles are “value measures directing the definition of legal rules as to their contents, the understanding of the rules, and the manner of their application ”7 Practically all basic rights imply principles outlining the goal, the weight and the scope of such rights The goal of a right (e g of the right to social security) determines the direction its constitutional and statutory regulation should take If the progress towards the goal slips beneath a reasonable threshold, the content of the right is no longer in conformity with the constitution The weight and scope of basic human rights are important as well The weight of basic human rights is especially relevant when there is a conflict between two or more rights (e g a conflict between the protection of privacy and the freedom of expression) It depends on the weight of the rights whether one right should have priority over the other or both rights can coexist It is also important to recognize the significance of the constitutional scope of the rights (e g the scope of the freedom of the press) A right is only constitutionally exercised if its exercise remains within the constitutional semantic field The boundary of this field must be true to the core meaning of the right If this fidelity is not present, we are beyond the scope of what is in conformity with the constitution For example, regarding the freedom of the press, if it loses the sharpness of serious criticism – such sharpness is a necessary component of political communication – and passes into the humiliation of the other, the scope of the right to the freedom of the press has been transcended The moral values expressed by basic human rights provide the most solid moral basis for law in pluralist societies Admittedly, because of the assumed value pluralism, this basis is rather diverse and has the potential give rise to conflicts, but the law, as its binding material, gives it a sufficiently solid content direction and legal remedies to solve conflicts if and when they cannot be solved voluntarily As the moral basis for law, basic human rights are not perfect, yet these rights represent that minimum of morality that the law stands with by protecting and developing it further and falls by not respecting it or trampling on it V. The Meaning of Man’s Freedom Legally protected basic human rights are the necessary normative framework needed by man as a free being Freedom is the fundamental presupposition of the existence of the ability and the conditions allowing man to make decisions Next to each man’s freedom is the freedom of the other, which each must respect and with which each must

7

Pavčnik (2013, p  130)

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coexist The lack of such coexistence or a considerable narrowing thereof narrows the room for making decisions Kant spoke convincingly about the relationship between law and the capacity for individuals to have freedom alongside one another Specifically, for Kant, the law is “the sum of the conditions under which the choice of one can be united with the choice of another in accordance with the universal law of freedom ”8 The sharp distinction between morality and law is possible on the conceptual level, yet in practice they are two normative systems that influence each other It is of special importance to recognize, in our understanding of the law, that respect for the law as well as its effectiveness are dependent on the moral valuation of the law A law that turns a deaf ear to the values of basic human rights is doomed to failure Of equal importance is how the constitution, the laws and other legal acts are interpreted Interpretation is by its nature value-based and often allows for making decisions co-defined by morality In a state governed by the rule of law, the legal decision-maker must always act as if he had an indefinite number of equal cases in front of him 9 It is an essential feature of such decision-making that the decision-maker (e g the judge) generalizes his standpoint in a concrete case, and a standpoint shaped in such a generalized way is also valid for new cases essentially matching the decided one(s) The adopted standpoint may be changed for new and convincing (better) reasons, but they must be explicitly and coherently stated in the substantiation of the decision VI. Generalization as Transformation The above-mentioned issue of generalization is a special transformation that occurs regularly in legal and court practice If the central reason for the transformation is a moral value allowed by the discretion permitted by the interpretive framework of the decision-making, we see the influence of morality upon law, i e an influence when the morality co-defines the content of law The transformation that has occurred begins to have its own legal existence independent of the values that initially motivated the transformation in the first place, and thus, in its own way, is distinguishable from the moral values having co-shaped it New meanings and their moral valuation result in new variants of the interpreted text, and they may also lead to a situation where the uniform and established legal (e g court) practice has to be supplemented and changed

8 9

Kant (1990, p  66–67 [230]) The English quotation is taken from Kant (1996, p  24) See the Slovenian Courts Act: “The judge has to decide in such a way as if he had an indefinite number of equal cases in front of him ” (Art 3/3)

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VII. The Moral Charge of Law A special issue is the morally charged procedural values serving as elements of the law Using the language of Nikola Visković, I am thinking of the procedural values often used to justify the content of legal regulation10 and at the same time allowing legal decision-making Let us take the characteristics of general and abstract legal norms that can ensure legal equality, legal predictability and legal security Equality, predictability and security are certainly moral values as well Further, let us accept that laws and other legal sources have to be published, that, as a rule, they must not be retroactive, and that the rights and obligations of legal subjects have to be defined in a relatively certain manner Mutatis mutandis this also applies to the jurisdiction of state authorities and to all those limitations and prohibitions which are meant to prevent the arbitrary and inconsistent behaviour of these authorities And, last but not least, there are process norms giving a framework to the legal play and contributing to fair play An example of fair legal play is the rational legal discourse promoted by theories of legal argumentation 11 VIII. Conclusion It is wrong to expect from the structural and process characteristics of the law to automatically produce high-quality (also moral) law These characteristics do not possess such power, yet they can certainly contribute, in a significant way, to the production of high-quality legal decisions And this is the main point; the lawyer’s professional morality demands of him to act lege artis and to consider all characteristics and elements of law that are a conditio sine qua non for legal acts (e g laws) to have balanced content and to be nomotechnically refined Another important issue is the moral criticism of law, which is practically unavoidable whenever positive law and its solutions are not in accordance with the generally accepted moral values, with moral tolerance, nor with moral freedom that is also to be protected by the law Such criticism is often upsetting to the authorities, but it cannot be avoided if one seeks to fulfil his/her responsibility towards nature, society and future generations A lawyer who is not interested in these issues and sticks to the letter of the law acts in an overly formalistic manner and fails to advance the moral goals of the law Legal thought should always have its purpose as Smole’s Antigone would say 12

10 11 12

See Visković (1981, p  135) See also Pavčnik (2015, p  504 ff ) Compare with the criteria discussed as the elements of the internal morality of law by Fuller (1972, p  33 ff ) Smole (1988, Verse 118): “[S]he seeks the inmost meaning of some thought ”

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References Fuller, L L (1972) The Morality of Law. Revised edition New Haven, London: Yale University Press Furlan, B (1921) Pravo in etika (Law and Ethics) Pravni vestnik (Trst), 1 (3–4), 17–23 Hassemer, W (2002) Naturrecht im Verfassungsrecht In A Donatsch, M Forster in Ch  Schwarzenegger (eds ) Strafrecht, Strafprozessrecht und Menschenrechte. Festschrift für Stefan Trechsel zum 65. Geburtstag Zürich: Schulthess Verlag, 135–150 Kant, I (1990) Die Methaphysik der Sitten Stuttgart: Reclam Kant, I (1996) The Methaphisics of Morals Translated and edited by Mary Gregor New York, Melbourne: Cambridge University Press Kelsen, H (1992) Introduction to the Problems of Legal Theory (1934) Translated by Bonnie Litschewski and Stanley L Paulson Oxford: Clarendon Press Pavčnik, M (2013) Argumentacija v pravu (Argumentation in Law) (3rd ed ) Ljubljana: GV Založba Pavčnik, M (2015) Teorija prava (Theory of Law) (5th ed ) Ljubljana: GV Založba Radbruch, R (2006) Five Minutes of Legal Philosophy (1945) Translated by Bonnie Litschewski and Stanley L Paulson Oxford Journal of Legal Studies, 26 (1), 13–15 Smole, A (1988) Antigone Translated by Harry Leeming Ljubljana: Mladinska knjiga Visković, N (1981) Pojam prava (The Notion of Law) (2nd ed ) Split: Logos

On the Nature and Purpose of Law: What Is It That We Study When We Study Law? Ricardo A Guibourg* 1. The Question We are, all of us, experts in law: we are certified by our universities as such experts So, we have of course some knowledge, seen as knowledge on law, or even about the science of law But what is it that we study and know? And, above that, how do we acquire such knowledge? Those questions are relevant to our present discussion What we know could depend on our concept of the nature of law, and how we acquire our knowledge could depend on what we call legal knowledge and, indirectly, on what we think is the real purpose of (a science of) law It is commonly accepted that law is a set of rules, normally enacted by a government, aimed to organize the relations among the members of a community That is why we study legal texts and legal decisions or precedents Yet what a legislator – or a judge – says law is (supposedly, the core of our object) is different from the way we describe law after interpretation and systematization (i. e. a deep intervention by the observer) The observer’s attitudes may be different from one another The subject, of course, wants to know how to behave in order to prevent sanctions or satisfy her interests Helping subjects in such way is the job of practicing lawyers Our job in legal theory, however, is to systematically describe the work done by lawyers, judges and legal experts So, what do we expect from a systematic description of the law, commonly called legal science? The expectations on legal knowledge can be placed on a continuum between two extreme points One endpoint is (extreme) realism – not the realism of Holmes or Ross, but something nearer Olivecrona’s view This is to say, this extreme sees the law as a strictly factual matter, a set of regularities in the use of power and force This kind *

Professor Emeritus of the General Theory of Law at the University of Buenos Aires Adapted from “Legal Science”, in IVR Encyclopedia of the Philosophy of Law and Social Philosophy

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of legal knowledge could be perfectly scientific, but it hardly captures the argumentative function we lawyers want to exercise The other end of the continuum is Natural Law theory – not the usual theory, which includes Radbruch’s principle, but the extreme version, which identifies law as justice This theory provides a solid basis for argumentation and fighting for our views and principles, but lacks a suitable method to decide legal controversies, which become moral ones In the middle of those ideal but inconvenient extremes, many theories try to compromise between a reasonable description of facts and the perspective of arguing on behalf of our own interests or values Such compromise is unstable, and each theory tends to slip toward one of the extremes Thus, Kelsen’s theory slips toward realism through its concept of custom and res iudicata Similarly, the usual conception of Natural Law (including the present doctrine based upon democratic principles and human rights) tends to slide toward its own extreme, led by the lack of an objective method able to distinguish justice from injustice and extreme injustice from “mild” injustice Admitting all this leads us to an analysis we have owed the law and those who participate in its operation or are subject to its constraints for millennia: the clarification of our legal thinking to acknowledge the difference between description and evaluation without necessarily renouncing either of them This proposal needs some reflection about the terms we use when we talk of a legal science 2. Science Beyond certain doubts set by recent epistemological tendencies (as in Feyerabend’s views), a definition of “science” is not difficult: a science is a collection of sentences about a certain segment of the real universe (as in descriptive sciences, i e astronomy, physics or biology) or about a certain systematic set of concepts or reasoning (as in formal sciences, i e mathematics or logic) Those sentences are not always true, but the aim of any science is to get and gather true sentences Therefore, the science tends to reject sentences when they are proven false, and to conserve sentences which are (still) considered true Science also conserves hypotheses that are (still) considered probably true 3. Truth Truth is a contaminated concept It is often used to qualify sentences we try to sustain (like moral or political preferences), or to emphasize metaphysical pretensions (as in religion) From an Aristotelian point of view, a sentence is true if, and only if, it is a description corresponding to some point of reality Of course, this point of reality is

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always individuated by a relevance judgment, which depends on the subject’s interest On this Aristotelian account, in order to use the terms “truth” and “reality” in a useful way, we should accept that the reality, independently of the point we individuate as relevant, does not depend on our interest: it is simply there, and the truth or falseness with which we describe it is not affected by our emotions about the descriptive sentence There is another kind of truth In mathematics or logic, a sentence is not true because it describes a material reality, but if and only if it is deductible from the axioms of the same formal system This kind of truth is not related to observation, but to logical inference: we decide first which deductive system we will use (decimal arithmetic, Euclidian geometry, deontic logic) and accept its axioms and inference rules; once that is done, every sentence deductible from all that becomes absolutely true within the limits of the chosen system 4. Knowledge When we think we have got to a truth, we call that situation knowledge Of course, we could be wrong, and believe that a false sentence is true, and, therefore, incorrectly say we have some knowledge about it But our wrong belief does not make true what is false; and, when we discover the mistake, we say: sorry, I said we knew that it was true, but I was wrong: I did not know, I strongly believed a false sentence, but now I say (I strongly believe) that such sentence is false So, a science is made of knowledge (or hoped knowledge): it grows in the measure of the quantity and quality of such knowledge, and it changes in the measure in which it rejects sentences proven false, incorporates new true sentences, or proposes new relations among the accepted sentences 5. Method In the just proposed nomenclature, reality and truth are objective, but individuation, assignation of relevance, and knowledge are subjective, because they are exercised or experimented by the subject and may differ from one subject to another In order to arrive at true sentences, a subject need try a process that justifies our beliefs This process is called a method (in Greek, a way to go beyond) In order to get knowledge, method is unavoidable: if we believe strongly that a sentence is true, but our belief is based upon a dream we had the night before, we do not have knowledge, even if the sentence is eventually found true: we have but a poorly founded belief (and maybe a bit of luck) Not all proposed methods are dependable A method can be considered dependable if (a) it gets always to the same result, in appropriate circumstances; (b) it can be reproduced by any subject, in the same appropriate circumstances; and (c) those

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circumstances do not depend on particular capacities of the subject, which cannot be scientifically explained (i e the condition of mediums or some kind of divine illumination) It is to be noted that commonly invoked methods, as the voice of the conscience, or mental intuition, are not dependable in that sense, because they lead different subjects to different results This is easily explained by an example We all, or almost all, agree that the human life has to be respected Yet this agreement leads some people to reject the death penalty, and others to embrace the death penalty for those who have committed homicide Similarly, agreement about respect for life encourages some people to forbid abortion but others to permit it in order to respect a woman’s reasonable life Therefore, it could be said that there are only two dependable methods: (1) the calculus to obtain true sentences from within a deductive system; and (2) the observation (empiric experience) for true sentences that try to describe the real universe If a science is made of knowledge, and if knowledge is to be obtained through dependable methods, it becomes clear that any science should be founded upon one or both of these two methods 6. Law If we are to be thought of as being engaged in a legal science, we have to determine what we call science and what we call law We have just considered what we call science, but what we call law is very controversial Several conceptions have been proposed, which can be approximately described as follows: law is (a) a set of rules enacted by the political authority; (b) a set of morally valid rules or principles, the validity of which depend on God or the nature of mankind, but is independent of the relevant political authority, which is obliged to adapt its rules to such natural law, or risk a loss of its validity; (c) the description of probable social consequences of each behaviour, or of some of them; (d) a combination of (a) and (b), or still (c); or (e) an argumentative field, full of fictions, symbols and rhetorical traps, where people, groups or classes try to exercise their power upon one another, or defend themselves from the domination by others It is evident that the perspective of a legal science depends on the definition of law we choose: each possible definition has to find a method able to generate a correspondent legal knowledge and organize that knowledge into a legal system 1 Option (a), the positivist conception, requires something similar to calculus: given an axiom (the Grundnorm, the rule of recognition, the original set of rules) and a rule of inference (the enacting of norms by legally competent organs), it should be possible to develop a legal system (and its description) by means of a rational method Never-

1

See Guibourg, R A , Saber derecho, Abeledo Perrot, Buenos Aires, 2013

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theless, this perspective has a flaw: real-world (non-formal) facts have an influence that cannot be denied as is acknowledged by institutions like custom or res iudicata Such concepts corrode the idea of a hierarchic order and introduce results logically incompatible with the axioms previously accepted 2 Option (b), natural law, exhibits an even greater flaw: there is not a method able to construct real knowledge about moral facts Studies on metaethics show that different definitions of “good” or “justice” propose references to subjective emotions, or to metaphysical facts: definitely, no method can provide everyone with the same results The same criticism applies to any conception including a moral element within the core concept of law, unless we define morals as a social, historic fact But, in such case, the idea is affected by the following comment, as option (d) does too Option (c), what we might call a realistic legal science, has a dependable method, because it turns the law into a sociological phenomenon, observable and describable according to empirical experience But a legal science based upon this conception of law does not allow us to develop a hierarchical view of the legal system It also fails to provide jurists a way to invoke the law to change real, present facts: things are as they are, and that is all a realistic legal science can tell us The final option, as often selected by critical legal studies, has none of the previous failures because it does not propose a real legal science, but a description of a permanent struggle; and its aim is not just descriptive, but a compromise with some of the (other) contenders Its observation about fictions, symbols and traps are interesting indeed, but the proposal does not include the use of a method able to reach scientific knowledge 7. A Provisional Conclusion As the previous analysis indicates, it may be too soon to describe the idea of a legal science; first, it is necessary to elaborate a coherent idea of legal knowledge Most of the practical reasoning on law proposes a mixed conception of legal knowledge: part consists of the knowledge of legal texts and of legal decisions made by judges; another part is the moral or political evaluation of alternative solutions, disguised as “right” interpretations of legal texts, or of different legal decisions, or of the general principles or human rights which are above any other consideration Authors who do this job with elegance and get some professional approval are considered good scientists, even if other good legal scientists fill their books and papers with an alternate library cited by other jurists At the end, this situation seems to confirm Humpty Dumpty’s cynical sentence: “The question is which is to be master – that’s all ”

2

See Guibourg, R A , Derecho, sistema y realidad, Astrea, Buenos Aires, 1986

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Maybe this phenomenon can be explained by a professional condition Two chemists may disagree about a particular statement in chemistry, but at the end they can reach an agreement about how to confirm or refute that statement by means of a method – observation – that they both trust The shared aim of the chemists is to make an advance in chemistry But two lawyers can maintain their disagreement forever, by means of different, opposed arguments, without a common way to set the discussion (and that is the reason why we have judges) The primary job of lawyers is not to make advances in law (even if they do so), but to win their cases Therefore, constructing a useful concept of legal knowledge, or eventually, of legal science, could be a very hard task, and must overcome serious opposition In the meantime, what we study when we try to study the law is this: we study material we try to use for several mixed purposes: (a) an approximate foresight of the eventual result of legal controversies; (b) a set of different arguments to be invoked on behalf of the interests we could want to sustain; and, (c) a systematic view of all that, a view composed of history, expectations, and desires, conveniently coordinated and expressed in persuasive words 8. A Way (Relatively) Out The discussion about the nature and purpose of law or the method appropriate to its apprehension may darken the field of practical analysis: as a matter of fact, if there is a legal system, we need to know its content in the first place and only then apply it to our conflicts or try to modify it according to our values, preferences, or interests This way, it could be less important to investigate the origin of rules than to discover how rules affect our behaviour by connecting it to some consequences Typically, those consequences, in cases of conflict, are decided by the judges, who take into consideration the positive norms, the principles, the more or less accepted values, the voice of their conscience and every other circumstance able to have an influence upon their decision If we ask judges how they consider each relevant condition or fact in order to arrive at their decisions in some particular type of conflict, and if the judges were willing to answer sincerely about their general criteria (even after discussing each point among them), the dispositional state of the judiciary, or of a considerable part of it, could count as a kind of legal knowledge; the systematization of such knowledge could be considered as a (mild) legal science Let us suppose that a number of judges meet to discuss the criteria they apply to a certain kind of controversy, in order to set a protocol or a flowchart, where each relevant circumstance is taken into account, and its presence or its absence, or degree of presence, has its consequence determined within the flowchart, until a final decision is indicated It is usually stated that such reasoning depends on the particular circum-

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stances of each case, but this is not completely true The real circumstances of a case are infinite, but the relevant ones are but a few, depending on and determined by the applicable legal rules or the general criteria adopted by the judges themselves By means of introspection, each judge could identify those criteria and the operative incidence of each one of them, at least to the point their experience shows as necessary Of course, the flowchart could be modified anytime, if the judges change their collective opinion about a certain detail If this could be done (and, of course, published, not as a legal decision, but as a mere piece of information), many consequences would arise: more predictability of legal decisions, a lower caseload in the judiciary, a greater respect for the law by common people, a better public control of the judicial function without diminishing its independence, and, last but not least, the opportunity for a real legal knowledge Certainly, two difficulties arise for this proposal One of them is the traditional attitude of judges, turned into a sort of rule: a judge talks only through her decisions and does not decide abstract questions The other, that to express general criteria requires to dig, up to a certain limit, into the subconscious level of the mind: this is not impossible, but it could be at least complicated by the fact that it might reveal hidden conflicts among personal emotions 3 Both difficulties are real, but they can be overcome by a conscious effort and a change of attitude: after all, it is not forbidden for a judge to publish a paper of legal doctrine, and producing a decision seriously often requires a sound examination of the subject’s conscience Anyway, the prize would not be so high if by it we could get a more consistent legal knowledge instead of crossroads of partial opinions And, of course, this knowledge might raise proposals to change the known reality, as in medicine the knowledge of the real situation of the patient can lead to the administration of treatment to recover her health 9. Final conclusion In practice, the most commonly used concept of legal science oscillates between a hope taken for a reality and a political game whose elements are disguised as moral facts or as respected opinions A real legal science, a real legal knowledge, would be of great benefit to the community in general and would radically change the attitude of people towards the law, their legal obligations, and the judicial way of enforcing them

3

Those reflections are originated in research carried on at the University of Buenos Aires by the Group of Legal Criteria Analysis and published as: Análisis de criterios de decisión judicial: el artículo 30 de la LCT, Buenos Aires, GAC, 2003; Análisis de criterios de decisión judicial: la graduación de la pena, Buenos Aires, GAC, 2008; “Análisis de criterios de decisión: el daño moral”, in Revista de Responsabilidad Civil y Seguros 12, 2010, La Ley, Buenos Aires, page 243

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Alas, actual legal thought has lagged behind other fields of human knowledge: it never had its Copernican Revolution, and its fruit has been deemed unsatisfactory for centuries The reason is not lack of intelligence, but, probably, a deviation from the abstract way of intellectual advancement in favour of a path developing particular views about concrete, circumstantial disputes Now, we could propose our question again: not only “What do we study when we study law?”, but also “What do we know when we know the law?” Put differently, what do we expect from our job? The answer depends on the nature we assign to that job A lawyer has to help her client, and they both try to win their case An expert in law, a jurist, tries to improve the general knowledge of law, through a true description and an intelligent systematization A lawyer needs to know the best argumentative ways to defend her client’s interest, and her job starts from a knowledge of the legal situation but is moved by an evaluative impulse A jurist needs to define the theoretical nature and limits of what she could call “the legal situation”, build some notion of “truth” applicable to it and then describe the law in a way useful to everyone, including the lawyer, the judge and the citizen These two definitions of the legal job are not the same, but they become mixed very often Such confusion is commonly rooted in certain philosophical views, which obscure the differences between the job of lawyer and jurist The first obscuring view is the idea of a reality composed of two segments, one material and another immaterial, where the immaterial one includes essences and especially values (moral, legal and political ones) The second view leading to confusion is that there is a dependable method to apprehend immaterial entities, such as intuition or reason 4 The third problematic view is that the circumstances we prefer, like certain rules, elaborated by legal interpretation or extracted from our view on principles or rights, can be proposed as true or valid, as a result of our knowledge of immaterial reality got through our personal “reason ” All of these views prove rhetorically useful in particular instances but collectively they should remind us of the arguments used against Galileo to sustain the geocentric conception of the Universe This is why I said that the law is waiting for its Copernican Revolution Maybe it is time for a reaction which rejects the old confusion between description and preference The way to be followed may be the one proposed here (the public analysis of current legal criteria) or another one, but any step in a right direction must consider the need for really dependable methods to construct useful concepts of legal knowledge, in order to get, eventually, to something that could be properly called a legal science If we succeed in building such a science, our present discussions on the 4

In this case, the use of the word “reason” could be deemed abusive Originally, reason is our way of reasoning, i e logic Reason allows us to extract true conclusions from true premises but does not teach us the true or right premises, which are but the raw material of our operation and have to be furnished by the user, at her own risk

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nature and purpose of the law could be left in the past and replaced by more clear questions: Which criteria are now in use for ruling on legal controversies? How do we want to change these criteria? What are legitimate reasons we can offer to ask for such change? Who is competent to decide on our pretensions? In philosophy, it can be said that questions are more useful than answers If we ask rational questions, we could open a gate towards some (eventually) right answers

How Should a Feminist Think about Legal Positivism? Leslie Francis* At least since the publication in 1958 of the debate between H L A Hart1 and Lon Fuller2, the divide between legal positivism and natural law theory has been a fundamental feature of the landscape of philosophy of law Feminist philosophy of law has developed largely apart from this picture, shaped by debates between liberal feminists who emphasize non-discrimination and equality of opportunity and feminists who offer more far-reaching criticisms of the law as a structure of patriarchal power 3 Another more recent development in political philosophy has been the distinction between ideal and non-ideal or partial compliance theory Apart from discussions of transitional justice,4 this literature also has had little intersection with the landscape of positivism and natural law theory In this contribution in honor of Mortimer Sellers, I develop some suggestions about why a feminist, non-ideal theorist might prefer the positivist portion of the landscape to the natural law sector These suggestions are intended to take seriously, but ultimately reject, Sellers’ republican commitment to the claim that “the principles that justify international law are also the principles that identify its content ”5

*

1 2 3 4 5

Distinguished Alfred C Emery Professor of Law, Distinguished Professor of Philosophy, and Director of the Center for Law & Biomedical Sciences, University of Utah Some of my arguments in this contribution were developed in earlier form in Francis, Leslie P 2017 Feminist Philosophy of Law, Legal Positivism, and Non-ideal Theory In Ann Garry, Serene Khader, and Alison Stone, ed The Routledge Companion to Feminist Philosophy. New York: Routledge, pp  701–712 Hart, H L A 1958 Positivism and the Separation of Law and Morals Harvard Law Review 71, no  4: 593–629 Fuller, Lon L 1958 Positivism and Fidelity to Law: A Reply to Professor Hart Harvard Law Review 71, no 4: 630–672 Francis, Leslie, & Patricia Smith 2017 Feminist Philosophy of Law  The Stanford Encyclopedia of Philosophy  (Winter 2017 Edition), Edward N Zalta  (ed ), URL = Sreenivasan, Gopal 2012 What Is Non-Ideal Theory? In Williams, Melissa, Rosemary Nagy, & Jon Elster, eds Transitional Justice (NOMOS LI), pp  233–256 Sellers, Mortimer N S 2006 Republican Principles in International Law: The Fundamental Requirements of a Just World Order. Basingstoke, UK: Palgrave Macmillan, p  2

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Non-ideal theory I begin with a brief overview of non-ideal or partial compliance theory Contemporary theorizing about non-ideal justice begin with John Rawls in his Theory of Justice.6 Rawls famously set aside non-ideal theory for purposes of developing his account of justice as fairness Rawls developed his theory of justice on the assumption of natural and historical circumstances favorable to the realization of justice He assumed as well for purposes of theoretical development that people would in general comply with the requirements of justice He then fleshed out the theory in a four-stage sequence, beginning with highly general principles of justice, moving through creation of a constitution and legislation, and finally to implementation In moving through these stages of ideal justice, Rawls famously set aside questions about what justice would require in less favorable situations In so doing, he clearly understood that different approaches might be needed where either natural or social circumstances were less than ideal, or where many people were failing to conform to what justice required from them Later in this contribution, I will develop examples of how the requirements of justice may be modified in less than ideal circumstances Soon after it was published, Rawls’s theory of justice for ideal circumstances was confronted by the challenge that in real life sufficient numbers of people might hold illiberal conceptions of the good – that is, conceptions of the good inconsistent with the requirements of an ideal liberal theory of justice 7 These challenges pressed Rawls on whether his views could be publicly justified to those with illiberal conceptions of the good 8 After all, these persons would hold theories of the good that would be inconsistent with full compliance with the requirements of justice Subsequently, Rawls answered these challenges by tempering ambitions for his theory of justice In Political Liberalism,9 Rawls made claim only to developing a theory of justice for a liberal society But arguably he did not fully recognize the force of his critics’ challenge As Jeremy Waldron points out,10 Rawls understood the challenge to concern fundamental disputes about the good – that is, about individuals’ views about the good life for themselves He did not see that disputes might also extend to fundamental disagreement about justice itself The move to political liberalism, therefore, did not solve the problem that had led Rawls to embrace it: that people might hold world views that would undermine compliance with the requirements of justice Nor did the move address how justice should be theorized for non-ideal circumstances 6 7 8 9 10

Rawls, John 1971 A Theory of Justice. Cambridge, MA: Harvard University Press For a discussion of such illiberal conceptions of the good, see Freeman, Samuel 2001 Illiberal Libertarians: Why Libertarianism Is Not a Liberal View Philosophy & Public Affairs 30(2): 105–151 Freeman, Samuel 2003 Introduction In Samuel Freeman, ed The Cambridge Companion to Rawls. Cambridge, UK: Cambridge University Press, pp  1–64, at 29 Rawls, John 1993 Political Liberalism. New York: Columbia University Press Waldron, Jeremy 1999 Law and Disagreement. Oxford, UK: Oxford University Press, pp  152–153

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One of the central debates in contemporary non-ideal theory is the relevance of ideal justice to non-ideal circumstances 11 Should we use an ideal of justice to guide what we ought to do in the here-and-now? Some theorists argue that we should: that an ideal theory of justice functions like a north star to guide societies as they attempt to make progress towards justice Other theorists argue that supposedly ideal accounts of justice are either irrelevant to existing circumstances or implausibly difficult to formulate apart from actual circumstances 12 These non-ideal theorists, with whom I agree, hold that ideal accounts are neither necessary nor sufficient for making judgments about what would be improvements in justice in the actual world Instead, they contend, theories of justice should address issues such as how progress can best be made toward justice, what injustices take precedence to address in given contexts, what strategies are likely to create new roadblocks to overcoming injustice, or what are the obligations of individuals or institutions when others continue to behave unjustly As I see justice, it is a matter of ongoing work at inclusion and flourishing: what next steps, at individual or social levels, will enable individuals in all their differences to do well at what matters to them? Law, as the primary social institution that does justice, plays a central role in this project Answers to foundational questions in legal theory, even to “what is law”, must be informed by this perspective Legal positivism and natural law theory The debates between legal positivists and natural law theorists are generally understood to be about the concept of law – how law is to be defined and thus identified In my judgment, however, normative disputes are central to resolving these conceptual questions What it is to have a legal system, to judge that a rule is a rule of that system, or to determine whether there is an obligation to obey some or all of a system’s supposed rules, all reach deeply to the role and legitimacy of political authority, the purpose of law, and the role of law in the lives of people who live under it To put this point in terms developed by Sally Haslanger, legal positivists and natural law theorists are

11 12

See, e. g., Valentini, Laura 2012 Ideal vs Non-ideal Theory: A Conceptual Map Philosophy Compass 7(9): 654–664 E. g. Wolff, Jonathan 2017 Forms of Differential Social Inclusion Social Philosophy and Policy 34(1): 164–185; Miller, David  2011 Taking up the Slack? Responsibility and Justice in Situations of Partial Compliance In Responsibility and Distributive Justice, eds   Zofia Stemplowska  and  Carl Knight Oxford: Oxford University Press, pp  230–45; Sen, Amartya 2009 The Idea of Justice. Cambridge, MA: Harvard University Press; Cohen, G A 2000 If You’re an Egalitarian, How Come You’re So Rich? Cambridge, MA: Harvard University Press

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engaged in projects in social metaphysics 13 That is, they are constructing accounts of what law is Such accounts are ameliorative if they further justice It is thus no accident that H L A Hart’s defense of positivism was shaped by his liberalism: his view that the law should provide a framework within which different lives could flourish and that conceptual commingling of law and morality risked allowing judges unknowingly to inflict on others their views of what would be good for them 14 Core to the legal positivists’ view is that law and morality should be understood as conceptually separate On this “separation” thesis, “what is law” is a different question from “what law ought to be ” In adjudication, the separation thesis is manifest as the view that judges apply existing law or, more controversially, must recognize that, like legislators, they have the authority to make new law in difficult cases when existing law runs out But when judicial legislation occurs, it should be recognized as such: judges are making new law rather than applying the law already on the books They may have the authority to do this in a given society, just as legislators do – but whether they are exercising this authority appropriately is what must be critically examined in given circumstances Although debates over the relationship between law and morality were as old as Plato, they gained new intensity with the Nuremburg trials in the wake of the Second World War These tribunals punished persons for crimes against humanity, where the defense was that the accused were only following the law in existence at the time Some defenders of the tribunals argued that their judgments were in accord with existing international and German law Others thought the judgments were appropriate moral condemnation, even if not within the ordinary exercise of legal procedures Still others believed that even the most horrific of acts did not warrant legal condemnation unless they were illegal at the time; on this view, to use the law for moral condemnation was to pervert the rule of law In his contribution to the 1958 debate, Hart defended the separation thesis because he believed it would create clarity about what was at stake in deploying the force of the law against the Nazis accused of war crimes: the extraordinary, yet justifiable under the circumstances, use of the law as a statement of moral condemnation 15 In replying to Hart, Fuller rejected the defense that the Nazis were only applying existing law Instead, he argued that the actions of the Nazis violated what he termed the

13

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See, e g Haslanger, Sally and Ásta 2018 Feminist Metaphysics  The Stanford Encyclopedia of Philosophy (Fall 2018 Edition), Edward N Zalta (ed ), URL = https://plato stanford edu/archives/ fall2018/entries/feminism-metaphysics/ Haslanger, Sally 2012  Resisting Reality: Social Construction and Social Critique, New York: Oxford University Press Schauer has also seen positivism as such a project in legal reform Schauer, Frederick 2015 The Path-Dependence of Legal Positivism Virginia Law Review 101(4): 957–976 If there are any natural rights, Hart argued, there is an equal right of all to be free Hart, H L A 1955 Are There Any Natural Rights? Philosophical Review 64, no 2: 175–191 Hart, H L A 1958 Positivism and the Separation of Law and Morals Harvard Law Review 71, no  4: 593–629

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“internal morality of law” and thus were not law at all 16 For Fuller, the aim of law was to enable people to engage in purposive activity; law must be constructed to enable people to conduct their lives in accord with it Fuller’s limited version of natural law aimed to bypass the moral commitments of versions of natural law theory such as those associated with traditions in Catholic theology Instead, Fuller rested the morality of law in what he saw as the nature of law itself Like Hart’s, Fuller’s project can be viewed as a form of social metaphysics, that of constructing a society based on the rule of law In a famous debate with Lord Patrick Devlin, the British High Court Judge, Hart argued that the law should not be used to enforce morality Hart’s contribution to the debate, published as Law, Liberty, and Morality,17 argued for decriminalization of a number of what were thought to be victimless crimes, such as the voluntary sale of sex or homosexual sexual acts Punishment of such consensual acts as crimes, Hart contended, amounted to an unwarranted imposition of conservative social values and could not be justified as legitimate protection of some from harm by others Thus, Hart’s views about the nature of law were ultimately justified by his political liberalism Judgments that what is moral is what is law without more, or that immoral laws are not laws, risk violating liberty by imposing the values of some onto others, or so positivists hold in asserting that meeting a moral test is neither necessary nor sufficient for being law Hart’s views about adjudication were perhaps his most controversial For Hart, judges in applying the law need first to try to understand what the laws of a given system require The laws may run out and there are problems of the penumbra where what the law requires is unclear Prior adjudications may help with this interpretive task But when the law runs out, faced with novel interpretive choices, judges must recognize that they are creating new law Leaving judges to call on moral values in interpreting penumbral law – as though they were merely applying law – risks imposing the values of some, the judges, on others, in unrecognized fashion This is so whether these values protect moral rights or traditional social mores Critics such as Gustav Radbruch18 and David Dyzenhaus19 have argued that positivism requires judges to acquiesce in enforcement of evil laws in authoritarian regimes Radbruch, who had subscribed to positivism before the Nazi regime, later argued that rules that are sufficiently unjust no longer retain their status as legal rules Hart devoted a full section of his 1958 paper to a reply to Radbruch, arguing that positivists were not 16 17 18

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Fuller, Lon L 1958 Positivism and Fidelity to Law: A Reply to Professor Hart Harvard Law Review 71, no 4: 630–672 Hart, H L A 1963 Law, Liberty, and Morality. Stanford, CA: Stanford University Pre Bix, Brian H 2011 Radbruch’s Formula and Conceptual Analysis American Journal of Jurisprudence 56: 45–57 Bix argues that it would be more charitable to understand Radbruch’s “formula” about the de-legalization of sufficiently unjust laws as an account of adjudication rather than as an account of the concept of law itself Dyzenhaus, David 1991 Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy. Oxford, UK: Clarendon Press

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committed to acquiesce in injustice, but only to the view that unjust laws remained laws Hart argued that only with this view – that unjust laws were in fact still laws – could the need for legal change be brought into sharp focus Hart’s view about adjudication was also subject to attack from the other direction, that far from being authoritarian it could account for only the small set of legal decisions in which the law was clear Ronald Dworkin, in his early criticisms of Hart, argued that his view left most judges exercising strong discretion, imposing new law without the guidance of existing law 20 Dworkin rejected this account as a description of how most judges conceive of their roles, or of how they should conceive of these roles In Dworkin’s words, “When we reach these cases, the positivist remits us to a doctrine of discretion that leads nowhere and tells nothing ”21 Instead, Dworkin argued, judges in applying the law call on a variety of principles, often moral, that have a dimension of weight Dworkin later developed his view of adjudication more fully by contrasting Judge Herbert (modeled on Hart), Judge Hercules (modeled on his own view, and Judge Siegfried (modeled on a “good” Nazi judge such as the fictionalized Dr Ernst Janning in the movie Judgment at Nuremberg) 22 Herbert is a judge who tries to employ identified legal materials such as statutes, case law, and administrative rules to cases presenting in his court 23 When these materials run out, Herbert then uses his own political convictions, including whether to call on popular morality, to resolve the case Hercules, by contrast, engages in the superhuman task of eliciting the best reconstruction of existing law, including principles and policies, in order to decide a case For Dworkin, every case has a “right answer” that can be drawn out of the existing law in this way A ruling of Judge Hercules can always be justified as the soundest statement of the settled law A ruling of Judge Herbert, on the other hand, might falter on the admission that it was only the judge’s own political or moral views that had ultimately resolved the case Dworkin believed that this admission that decisions in hard cases are rooted in political morality threatens to undermine the legitimacy of the judiciary and consign it to the wrenching political contestation that continues to the present day A defender of Hart’s positivism, however, could reply that the view unmasks the reality of how cases are actually decided On this reading, Hart’s view makes manifest how conceptualizing law and adjudication is a project in social metaphysics, a project of social construction that can serve ends of doing justice in different ways Dworkin’s view would legitimize decisions actually made; Hart’s view would open the door to critique 20 21 22

23

Dworkin, Ronald 1967 The Model of Rules University of Chicago Law Review 38: 14–46 Id., p  46 For a description of Judgment at Nuremberg, see The Guardian 2013 Judgment at Nuremberg – poetic justice for Holocaust perpetrators The Guardian ( Jan 30) [online] https://www theguardian com/film/filmblog/2013/jan/30/judgment-at-nuremberg-reel-history Last visited April 17, 2019 Janning was supposedly modeled on Franz Schlegelberger, the leading defendant in the judges’ trial Dworkin, Ronald 1975 Hard Cases Harvard Law Review 88: 1057–1109, pp  1103–1104

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The fate of Dworkin’s third judge, Judge Siegfried, can develop this point further Siegfried is the judge confronted with applying Nazi law 24 Like Fuller, Dworkin believed that Siegfried could have concluded that the evil features of Nazi law were not law But he would have reached this conclusion for very different reasons Judge Siegfried’s task, on Dworkin’s view, would have been constructing the best theory of the settled German law Such a reconstruction might establish fit with some doctrines in Nazi law, such as enforcement of civil contracts, but not with other doctrines, such as required disclosures of anti-regime statements If so, the Nazi system would at most be a degenerate legal system, on its own best interpretation The claim is not that Nazism fails to meet some criterion for existence of a legal system such as those singled out by Fuller It is instead that the system fails by its own lights as best interpreted 25 However, it is arguable that this account of Judge Siegfried’s reasoning problematically conceals an ambiguity in “the best” interpretive theory of Nazi law: is Judge Siegfried’s task to develop the most accurate comprehensive reconstruction (the “settled law”, or would the reconstruction that would be morally preferable (“the soundest theory”)? If the former, it is unclear why Siegfried would reject the worst features of Nazi law If the latter, it is unclear how Dworkin can contend that Siegfried is creating a reconstruction of existing law, rather than morally better law Another challenge to positivism is that because it separates law from morality, it cannot explain how law carries normative force Natural law theorists can contend that law carries such force because it embeds morality, but positivists cannot At best, some argue, positivists can claim that the force of law is power Indeed, positivists such as John Austin identified law with sovereign commands 26 Hart argued descriptively instead, finding the fundamental basis of law only in the acceptance of norms for recognizing law; the “rule of recognition,” Hart contended, is the step from the pre-legal to the legal world 27 Critics of this view distinguished between being “obliged” – coerced – and being obligated Hart’s reply was to continue the project of identifying law as descriptive, not normative, and to admit that the fundamental grounding of law was simply a matter of acceptance That said, Hart also thought that terribly bad laws, or legal systems that did not serve fundamental human interests, would not endure in the long run Grounding law in acceptance lets us see that normativity is not built into acceptance; rather, it is always open to question whether such acceptance may be morally problematic Feminist philosophers of law are well positioned to challenge law on this ground

24 25 26 27

Dworkin, Ronald 1986 Law’s Empire. Cambridge, MA: Harvard University Press Id., pp  104–108 Austin, John 1832 The Province of Jurisprudence Determined. London: John Murray, Albemarle Street Hart, H L A 1961 The Concept of Law. Oxford, UK: Oxford University Press

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Feminist Philosophy of Law Feminist legal theorists have paid little attention to the debates about legal positivism, instead directing attention to the critique of law as a system of patriarchal power, to civil rights and equality, and to specific problem areas involving the oppression of women such as abortion, rape, sexual harassment, or child custody and divorce Feminist philosophy of law also has been informed by different approaches to feminism, from more radical challenges to patriarchy in all its forms to civil rights views 28 In this contribution, I want to bypass these debates and focus instead on how positivism can help to further achievement of justice for women, a shared goal of all feminists As described above, I see the debate between positivists and natural law theorists as a debate among projects in social metaphysics Natural law theorists construct moralized accounts of law Positivists do not; instead, they separate accounts of law as it is, from law as it might be As projects in social ontology, natural law theorists do not open space for the moral critique of law, as law is moral They may keep us from seeing how contested moral views have become embedded in law – views that may have been accepted for centuries but that remain morally suspect Positivists take different risks, but at least open space for identifying these risks: confusing what is accepted for what is right and opening the door to wide-ranging exercise of discretion In what follows, I develop two examples to illustrate how the positivist project, as I see it, can further justice in contexts of injustice Both examples are drawn from my contributions to conferences aptly organized by Professor Sellers in furtherance of the goals of the IVR to cultivate social and legal philosophy The first illustrates how courts have gone outside parameters of existing law and failed to recognize the need to acknowledge the presence of controversial views of political morality that call for further justification The second illustrates how justice-promoting doctrines may already be embedded in existing law as elucidated by judges Stare decisis, Freedom of Expression and Commercial Speech Stare decisis – let the decision stand – is a mainstay of positivist thinking about law In common law jurisdictions, prior cases are existing law, to be applied if the role of the judge is to apply the law Stare decisis is also a troubling doctrine, as it is content-independent and may shore up decisions that were grievously wrong from the beginning, such as the holding in Plessy v. Ferguson that segregated public facilities did not violate

28

For an overview, see Francis, Leslie P and Smith, Patricia 2015 Feminist Philosophy of Law, The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N Zalta (ed ), URL =

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equal protection if they were “separate but equal ”29 Frederick Schauer finds the primary virtues of stare decisis in stability, reliance, and predictability, despite also questioning the value of stability for stability’s sake 30 In my judgment, non-ideal theoretic feminists should see advantages other than stability for assigning some weight to stare decisis: that it forces courts to be overt about the reasons for their decisions Insistence on stronger justifications for overruling prior decisions forces courts, and the Supreme Court especially, to be clear about why it is making the judgments it does It thus compels examination of whether the justification for the changes is that the initial decision was wrong on the then-existing law, or whether the initial decision had called on moral views that should now be rejected for competing and compelling moral reasons In the past, the U S Supreme Court has likewise found virtue in stare decisis,31 taking the view that substantial justification is required to overrule prior decisions However, the Court more recently has veered away from this view, notably in overruling several earlier decisions involving the First Amendment 32 In her dissent to the U S Supreme Court’s 2018 Janus decision that mandatory agency fees paid by public employees for union representation in collective bargaining violate the First Amendment, Justice Elena Kagan charged the Court with “weaponizing” freedom of expression The Janus Court, she said, had acted “in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy”33 Justice Alito’s opinion for the Court had rested on the premise that “fundamental free speech rights are at stake” and therefore a precedent of 41 years and expectations of public sector unions across the country could be overruled 34 The speech rights identified by Justice Alito were protection against required contributions for activities with which one disagreed The regulatory policy in question was the choice by 22 states to bargain with only one union representative that had a mandate to represent the interests of all employees, and to require agency fees in return for this representation so that some employees could not free ride on the contributions of others 35 The Court’s justification for overruling the precedent rested primarily in earlier opinions36 by Justice Alito that had themselves been aimed

29 30 31 32

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Plessy v. Ferguson, 263 U S 537 (1896), overruled by Brown v. Board of Education, 347 U S 483 (1954) Schauer, Frederick 2012 Precedent In Marmor, Andrei, ed The Routledge Companion to Philosophy of Law. New York: Routledge, pp  123–136 For example, in her plurality opinion refusing to overrule Roe v. Wade, Justice O’Connor contended that “Liberty finds no refuge in a jurisprudence of doubt ” Planned Parenthood v. Casey, 505 U S 833, 844 (1992) Id. at 2472 (Kagan, J , dissenting) Importantly for feminists, Justice O’Connor’s opinion refusing to reverse Roe v. Wade relied on similar reasoning about the staying power of precedent Planned Parenthood v. Casey, 505 U S 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt”) Janus v. American Federation of State, County, and Municipal Employees, 138 S Ct 2448, 2501 (2018) Id. at 2460 Abood v. Detroit Board of Education, 431 U S 209 (1977) Harris v. Quinn, 573 U S 616 (2014); Knox. v. Service Employees, 567 U S 298 (2012)

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to construct exactly this basis for overruling the precedent37 – hardly, in Justice Kagan’s view, the “substantial justification” required This premise in Janus that fundamental free speech rights were at stake conceptualized free speech first as the right not to speak as well as the right to speak It then characterized union agency fees as compelled speech – that is, as fees requiring the employee to subsidize a viewpoint with which he disagreed (The employee believed that the state was in financial difficulties and disagreed with the union’s efforts to seek higher wages and benefits for public employees ) These conceptualizations passed without further examination in Justice Alito’s opinion, as they had done in his several earlier opinions in decisions about the free speech rights of public employees For example, in Knox v. Service Employees International Union, Local 1000, Justice Alito portrayed the First Amendment as creating an open marketplace for the competition of ideas, in which the government could neither prohibit nor compel endorsement of ideas in any way, including through funding such as union agency fees 38 The landmark decision of the Supreme Court in 2010 involving corporate political speech, Citizens United,39 lies behind this treatment of contributions as speech This role for Citizens United remained overt in Justice Alito’s earlier opinions,40 but by the time of Janus the citations to Citizens United were all for the claim that decisions could be overruled if they had been wrongly decided41 – even if the decisions had been in place for over a generation Much ink has been spilled over Citizens United, and I cannot hope in this symposium contribution to contribute to that debate Here, I want to note that, like Janus, Citizens United overruled considerable earlier precedent Again, like Janus, it did so by characterizing the earlier precedent as itself a significant anomaly in First Amendment law, using an opinion that had been constructed for that very purpose 42 Here, the supposed anomaly was the recognition that corporate wealth might be a distorting factor in political speech 43 This contention, as Justice Stevens pointed out, rested on further assumptions that corporate and human speakers should be treated identically – a world view that itself required explicit acknowledgement and justification 44 A positivist account of such justification would reveal the extent to which it reflects a view of political morality As a partial compliance theorist, I would see it as opening

37 38 39 40 41 42 43 44

Gorod, Brianne J 2017 Sam Alito: The Court’s Most Consistent Conservative The Yale Law Journal Forum 362–373 567 U S 298, 309 (2012) Citizens United v. Federal Election Commission, 558 U S 310 (2010) E g Knox, 567 U S at 322 Janus, 138 S Ct. at 2472, 2478, 2479 Citizens United, 558 U S at 319, citing Federal Election Commission v. Wisconsin Right to Life, Inc., 559, 490 (Scalia, J , concurring in part and concurring in the judgment) Id. at 348 Id. at 394 (Stevens, J , concurring in part and dissenting in part)

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the door to considering how speech doctrines intersect with inclusion Such analysis might reveal the ongoing impact of regarding economic activity as speech since the decision in Citizens United. Just one example of where it has increasingly played a role is the academy I use this illustration because, in the spring of 2017 at the University of Stockholm, members of the IVR Executive Committee participated in a conference on academic freedom One of the topics discussed was the role of conflicts of interest created by donations Data are robust that despite what people may believe they are influenced in the judgments they make by gifts they receive 45 In recent years, as universities have faced increasing needs for funds, donors with strong political viewpoints have made major contributions in ways that have not always been fully transparent To take one example, the Mercatus Center at George Mason University46 has received more than $14 m from the Koch brothers and has Charles Koch as a director A condition of its location at George Mason University, a state school, was that it could hire two faculty of its own choosing 47 Mercatus produces libertarian analyses, often self-published, as though they were independent scholarship; these analyses have had a major policy impact, not least in spurring efforts to replace the Affordable Care Act with market-driven reforms Certainly, many others give to universities as well, but the Koch donations have been notable for their conditions and lack of transparency 48 Their donations and donations by others may also be transmitted through mechanisms that conceal their origins; some state governments have sought to use state non-profit tax law to increase transparency As California’s attorney general, Kamala Harris sought to compel Koch’s Americans for Prosperity Foundation to disclose a list of donors to the charity, registered in California 49 The purpose of the disclosure to the state – which was to be kept confidential – was to investigate possible tax fraud The district court concluded that there were significant risks that confidentiality would not 45 46 47 48

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Institute of Medicine 2009 Conflict of Interest in Medical Research, Education, and Practice. National Academy Press, https://www nap edu/download/12598 Last visited April 17, 2019 Mercatus https://www mercatus org/ Last visited April 17, 2019 Levinthal, Dave 2015 Spreading the Free-Market Gospel The Atlantic (Oct 30) [online], https:// www theatlantic com/education/archive/2015/10/spreading-the-free-market-gospel/413239/ Last visited April 17, 2019 Green, Erica L , & Stephanie Saul 2018 What Charles Koch and other Donors to George Mason University Got for Their Money The New York Times (May 5) [online] https://www nytimes com/ 2018/05/05/us/koch-donors-george-mason html Last visited April 17, 2019; Mayer, Jane 2016 Dark Money: The Hidden History of the Billionaires Behind the Radical Right. New York: Doubleday; Francis, LP 2011 Speaking out as an obligation of justice APA Newsletter on Medicine and Philosophy 11, no 1, http://c ymcdn com/sites/www apaonline org/resource/collection/250A3149-F98147C2-9379-618149806E75/v11n1_Medicine pdf Last visited April 17, 2019 Americans for Prosperity Foundation v. Harris, 182 F Supp 3d 1049 (2016) The disclosure was of Schedule B of the 990 form filed with the IRS, which required disclosures of donors contributing > 2 % of the organization’s funding Americans for Prosperity Foundation v. Becerra, 903 F3d 1000, 1005 (9th Cir 2018)

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be protected and that the compelled disclosure violated First Amendment rights to freedom of association 50 This decision was overturned by the 9th Circuit, after the state had issued regulations clarifying confidentiality requirements 51 Over a sharp dissent, rehearing en banc was denied52 in March, 2019, and it is likely that the controversy over donor disclosures required for state tax exemptions will continue Conservatives frequently argue that U S academia is tilted overwhelmingly, problematically, and unfairly towards the left Yet over the last forty years, conservative funders such as the Liberty Fund53 or the Olin Foundation,54 have made concerted efforts to identify, select, groom, and support conservative academics For law, the role of the Federalist Society has been paramount since its founding in 1982 The Federalist Society has chapters at every ABA accredited law school, with over 10,000 student members, hosting thousands of events every year; it also has international chapters and chapters at some undergraduate institutions, as well as a lawyers’ division, with over 30,000 members, and chapters in 60 cities It provides fellowships for conservative lawyers considering teaching, a forum for advancing candidates for the law teaching job market, and a set of fellowships for untenured academics to help them on their way 55 And it has been enormously influential in the selection of federal judges 56 These are but a snapshot, albeit an influential one, of the need to observe and understand the interplay between funding and speech The role of corporate funding in the electoral process has come under widespread examination, a controversy beyond the scope of my goals here Here, my point is only the importance of the positivist approach for identifying the role of political morality in deciding cases Only when this role is apparent is it possible to see how moral views about speech have influenced the current state of the law – and to raise the partial compliance question whether the scope and force of the speech rights recognized are policy weapons increasing risks of injustice If so, partial compliance theorists might urge reconsideration of assumptions such as those made by Rawls that free speech protections are lexically prior to other commitments of justice

50 51 52 53 54 55 56

Americans for Prosperity Foundation v. Harris, 182 F Supp 3d 1049 (2016) Americans for Prosperity Foundation v. Becerra, 903 F3d 1000 (9th Cir 2018) For a similar decision, see Citizens United v. Schneiderman, 882 F 3d 374 (2d Cir 2018) Americans for Prosperity Foundation v. Becerra, 919 F 3d 1177 (Mem ) (9th Cir 2019) (Ikuta, J , dissenting from denial of rehearing en banc) Liberty Fund 2019 https://www libertyfund org/ Last visited April 17, 2019 The Olin Foundation wrapped up its donation program in 2005 Olin Foundation to Cease Operations in 2005 Philanthropy News Digest (April 8, 2005) [online] https://philanthropynewsdigest org/news/olin-foundation-to-cease-operations-in-2005 Last visited April 17, 2019 This information is available on the Society website The Federalist Society 2019 https://fedsoc org/ Last Visited April 17, 2019 E g , Montgomery, David 2019 Conquerors of the Courts The Washington Post Magazine ( Jan 2 ) [online] https://www washingtonpost com/news/magazine/wp/2019/01/02/feature/conquerorsof-the-courts/?utm_term= 0c8e6f9f3301 Last visited April 17, 2019

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Freedom of Expression, “Me too,” and Sexual Harassment Much workplace harassment is accomplished through speech The “me too” movement has brought renewed attention to speech in the workplace and its effects It has also renewed the claims of critics that efforts to end harassment suppress free speech 57 The development of sexual harassment law provides another example of how positivism can function as a way of understanding adjudication, as I discussed at an IVR symposium in Baltimore organized by Professor Sellers in the summer of 2018 When Title VII of the Civil Rights Act, the section on employment discrimination, was introduced in Congress, sex discrimination was an apparent afterthought Indeed, the original categories included in Title VII were race, color, religion, or natural origin Sex was added as a category in the last days before the bill’s passage, in the view of many as a ploy to undermine the entire act 58 But added it was, whatever the ultimate explanation Title VII did little to explain what the right to non-discrimination in employment meant in several employment contexts relevant to women, however While Title VII prescribed non-discrimination in the “compensation, terms, conditions, or privileges of employment,”59 for example, it said nothing further about myriad workplace rules, apparently neutral but in practice making work difficult for women Employers continued to fire women for becoming pregnant, taking time off after childbirth, or being absent to care for a sick child In 1974, the Supreme Court held that mandatory unpaid leaves for pregnant public-school teachers violated the 14th Amendment because they imposed arbitrary and irrebuttable presumptions about women’s fitness to work that were not imposed on men 60 In 1978, Congress amended Title VII to add discrimination on the basis of pregnancy, childbirth, or related medical conditions to the definition of employment discrimination because of sex 61 The Pregnancy Discrimination Act did not, however, require accommodations for pregnancy  – accommodations that are still largely unavailable today (Although the Americans with Disabilities Act requires accommodations for 57 58

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E g Eugene Volokh Freedom of Speech vs Workplace Harassment Law – A Growing Conflict http://www2 law ucla edu/volokh/harass/ Last visited April 17, 2019 Historians have argued that viewing the addition of sex discrimination as a joke underestimates the extent to which opponents of employment discrimination had been seeking the addition of women to this civil rights statute See, e. g., Freeman, Jo 1991 How “Sex” Got Into Title VII: Persistent Opportunism as a Maker of Public Policy Law and Inequality: A Journal of Theory and Practice 9(2) 163–184 42 U S C § 2000e–2(a)(1)(2019) Cleveland Board of Education v. LaFleur, 414 U S 632 (1974) The Court’s analysis rested in due process, not equal protection; the reasoning was that the requirement to quit work unduly burdened women’s constitutional freedom of reproductive decision making, the same liberty that had been the basis of the abortion decision the previous year 42 U S C § 2000e(k)(2019)

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disability, normal pregnancy is widely regarded by courts as not a disability ) Moreover, only the Family Medical Leave Act provides any protection for people needing time to care for family members or to recover from illness themselves and the protection is limited to three months of unpaid leave Thus, Title VII’s prohibitions of employment discrimination still do not extend to many workplace practices that, in Martha Minow’s phrase, “mak[e] all the difference”62 for genuine workplace equality It would take an amendment to the statute to clarify that accommodations for pregnancy are required by law Nor did Title VII explain what was meant by conditions of employment Importantly for my purposes here, whether workplace environments are conditions of employment was not stated explicitly in the statute Early on in race and ethnicity cases, courts determined that hostile work environments were indeed discriminatory in their effects In the words of one court: This language [of Title VII] evinces a Congressional intention to define discrimination in the broadest possible terms Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extension the parameter of such nefarious activities Rather, it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow Time was when employment discrimination tended to be viewed as a series of isolated and distinguishable events, manifesting itself, for example, in an employer’s practices of hiring, firing, and promoting But today employment discrimination is a far more complex and pervasive phenomenon, as the nuances and subtleties of discriminatory employment practices are no longer confined to bread and butter issues 63

But these were race, not sex cases Catharine MacKinnon is generally credited with “inventing” the theory of workplace sexual harassment, first in a student paper at Yale law school, then in a case brought (unsuccessfully) on behalf of Yale students64 and in her book (1979) on sexual harassment 65 MacKinnon is indeed the first person to crystallize the concept of sexual harassment in language66 and argue that it was a violation

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Minow, Martha 1991 Making All the Difference: Inclusion, Exclusion, and American Law. Ithaca, NY: Cornell University Press Rogers v. EEOC, 454 F 2d 234, 238 Alexander v. Yale, 631 F 2d 178 (2d Cir 1980) Caplan-Bricker, Nora 2012 How Title IX Became our Best Tool Against Sexual Harassment The New Republic ( June 21) [online], https://newrepublic com/article/104237/how-title-ix-becameour-best-tool-against-sexual-harassment Last accessed April 17, 2019 The lack of words to describe – and thus to recognize – phenomena such as sexual harassment is a form of epistemic injustice highlighted by Miranda Fricker in Epistemic Injustice: Power and the Ethics of Knowing. New York: Oxford University Press, 2007, especially Chapter 2 Fricker called this form of epistemic injustice “hermeneutical injustice”

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of Title VII (and of Title IX, the statute forbidding discrimination on the basis of sex in federally funded education programs), but whether she “invented” the concept is another matter MacKinnon’s own description of the process of generating sexual harassment law was that it was “judge-made,”67 a claim that can be taken simplistically to imply that in finding a cause of action for sexual harassment under Title VII judges were legislating For a positivist, the question would be whether the concept was embedded even though not explicit in the existing law of employment discrimination, or whether the judges were indeed stepping outside of the law and legislating, as they would be if they added an accommodation requirement to the Pregnancy Discrimination Act There is, however, a way to see the theory of sexual harassment as embedded in Title VII as a matter of legal theory Sexual harassment, like other forms of discrimination in the workplace, denies women equal work opportunities Vicki Schultz explains in powerful detail how both quid pro quo harassment (harassment that takes the form of coercive offer exchange of supposed favors) and hostile environment harassment (harassment that creates an unwelcoming workplace) excludes women from entire categories of employment 68 Sexual advances by superiors, firehouses full of girlie posters, or ridicule directed at performance, all signal to women that they should not be present in the hostile workplace Schultz’s argument is that harassment, sexual or not, should be understood as a form of workplace inequality created by a hostile environment Seeing sexual harassment as a discriminatory condition of employment places it centrally within the scope of Title VII Rather than “invented,” the theory is developed from within Title VII It is thus not a case of judges legislating, but of judges implementing what the legislature has enacted To some extent, MacKinnon’s own description of the development of sexual harassment law agreed with this picture She wrote: “The sexual harassment claim fits sex equality logic; it took sex equality guarantees for it to come into being But sexual harassment doctrine did not historically arise because or when legislatures passed sex discrimination laws It was judicial engagement with the experiences of sexually harassed women presented to courts on an equality theory, in phenomenological depth and one case at a time, that made it happen In this real sense, sexual harassment law is a women’s common law ”69 Here, sexual harassment is characterized as a form of inequality prohibited by Title VII What judges do in interpreting Title VII – in understanding its prohibitions – is consider how various fact situations closely resemble the clear cases of inequality already recognized as Title VII violations The novelty of the theory of sexual harassment was not that it was new law, but that it brought new insight into workplace conditions that function to exclude

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MacKinnon, Catharine A 2002 The Logic of Experience: Reflections on the Development of Sexual Harassment Law Georgetown Law Journal 90: 813–833, p  813 Schultz, Vicki 1998 Reconceptualizing Sexual Harassment Yale Law Journal 107: 1683–1803 MacKinnon, 2002, at p  815

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Thus understood, sexual harassment was a development of existing Title VII law in light of increased social understanding, not an “invention” by judges This is a positivist reading, not a natural law reading of sexual harassment law As such, it recognizes that the legislature had already made the choices that judges were explicating Conclusion Let me return briefly to my initial methodological remarks about non-ideal theory Both the understanding of economic activity as speech and the development of sexual harassment law suggest how the positivist approach to adjudication can further progress toward justice The Court’s determinations about economic activity as speech concealed controversial judgments of political morality that required more substantial justification than the Court gave The understanding that sexual harassment is a form of employment discrimination located exclusionary workplace practices squarely within the statutory prohibition of Title VII All too frequently, positivists have failed to develop their theory in the progressive ways suggested by these examples There are forms of positivism that have imposed literalist strictures on statutory and constitutional interpretation or that have been myopic about structural inequality Some positivism was associated with the logical positivist’s skepticism of normative theory – a position that Hart took pains from the beginning to disavow Robin West takes contemporary positivism to task for failing to develop what she calls “a sustained tradition of censorial jurisprudence ”70 Nonetheless, positivism viewed as an enterprise in social metaphysics has theoretical resources for legal development and criticism that are critical to furthering inclusive justice I have tried to illustrate these resources in this paper in honor of the work of Professor Sellers

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Law as Transformation Stephan Kirste* I. Introduction The ongoing debate about the nature of law1 focuses on the separation thesis or a weakor-strong-connection thesis between law and morals or2 asks whether immoral law is still valid 3 Different forms of positivism offer non-cognitivist, sociological or institutional argumentation for the strained relation of the two forms of norms, whereas inclusive positivists or non-positivists claim that law necessarily contains at least some fundamental moral principles A similar tension can be discovered with respect to social practice Whereas Hans Kelsen considers law as directing social practice, but not emerging from it (though a certain social validity deems necessary to him), H L A  Hart has adopted the opposite position, analyzing law as a form of social practice identified by the rule of recognition 4 The following remarks take a slightly different perspective They are looking for the contribution law makes to both morals and social practice Few authors went so far as the Renaissance philosopher Coluccio Salutati (1331–1406), who claimed a nobility of jurisprudence over medicine (“De nobilitate legume et medicinae”, 1399) Since medicine would only be concerned with the body, jurisprudence with the intellectual soul, medicine only with health, but jurisprudence with the common good, medicine with natural laws that have an external natural origin, jurisprudence with laws from inside the human soul, and since we know laws that come from inside us better than external

* 1 2 3 4

University Professor and Head of the Academic Group of the Philosophy of Law and Social Philosophy at the University of Salzburg Marmor, Andrei and Sarch, Alexander, “The Nature of Law”, The Stanford Encyclopedia of Philosophy (Fall 2015 Edition), Edward N Zalta (ed ), URL = Robert Alexy: On the Concept and Nature of Law In: Ratio Juris 21 (2008), pp  284 ff Stephan Kirste: Concept and Validity of Law In: Legal Validity and Soft Law Ed by P Westerman, J Haage, S Kirste, A R Mackor Heidelberg, New York 2018, pp  47–73, pp  67 ff H L A Hart: The Concept of Law 2nd Ed Oxford 1994, pp  255 f

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laws, jurisprudence would be superior over medicine 5 The idea is that laws and jurisprudence can add features to society and morals no other order or discipline can contribute I will follow this vein of thought to analyze the function or achievement law brings to both morals and social practice It will be the thesis of this paper that this feature is the transformation of morals into an accepted social practice and social behavior into mutually recognized legal practices In order to discuss this, I will first mention a few conceptions of an additional value of law and jurisprudence to morals (II ) Then I will analyze substantial (III ) and formal (IV ) approaches to the nature of law Based on this, I will sketch my own concept of law as transformation (V ) II. What Morals gain from Law In the history of philosophy, law has repeatedly been praised as an outstanding form of social order Very different aspects have been mentioned Aristotelian-Thomist theories of natural law understood it as an “ethical maximum” 6 According to this, law concretizes justice7 by adding to its moral form something that justice does not possess in itself: it orders the external behavior of human beings among themselves in a balancing way and can be enforced with compulsion if necessary 8 Law is the result of a just 5

6

7

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Collucio Salutati: De Nobilitate Legum et Medicinae (1399), quoted after Eugenio Garin: Italian Humanism: Philosophy and Civic Life in the Renaissance Philosophy and Civic Life in the Renaissance New York 1965, p  30: Laws “have their origin not in the external things, but in us They inhere in our minds as of nature Thus we know them with such a certainty that they cannot escape us and that it is not necessary to seek them among external facts For, as you see, they inhabit our most intimate selves ” They “are infallible because they are promulgated by human beings They contain man’s natural reason which every sound intelligence can understand and discover by reflection and discussion By contrast, the principles of medicine, once experience fails, are misleading and uncertain and are lacking the universality of reason”, see also Stephan Kirste: Menschenwürde und Freiheitsrechte des Status Activus Renaissancehumanismus und gegenwärtige Verfassungsdiskussion In: Des Menschen Würde: (wieder)entdeckt oder erfunden im Humanismus der italienischen Renaissance? Hrsg v R Gröschner, S Kirste, O Lembcke Tübingen (Politika 1) 2008, pp  187 ff , 198 Expression used in this sense by Gustav Schmoller: Grundriß der Allgemeinen Volkswirtschaftslehre 1 Teil Berlin 1920, p  57; in contrast to the dictum of the “Right as Ethical Minimum” by Georg Jellinek, Die sozialethische Bedeutung von Recht, Unrecht und Strafe, 2 Aufl Berlin 1908, p  45 Thomas Aquinas: Summa Theologiae Translated by Fathers of the English Dominican Province, http://www documentacatholicaomnia eu/ (last accessed Feb 2019), II–II, Q 57, 1, reply : “Thus is called ‘law’, which has, as it were, the legality of justice, precisely that in which the activity of justice finds its conclusion …” (“Sic igitur iustum dicitur aliquid, quasi habens rectitudinem iustitiae, ad quod terminatur actio iustitiae, etiam non considerato qualiter ab agente fiat ”) Thomas von Aquinas (note 7), II–II, Q 58, 3 reply 2, p  28 and Q 58, 11, reply For him, however, the enforced enforceability of the law is only a subordinate one Significantly, he places content-related aspects such as justice and orientation towards the common good at the center of his definition

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action, directed at the common good, and an appropriate balance is the norm for just action 9 The focus is put less on a strong connection thesis 10 For this tradition, the classifying argument that an enforced order that does not satisfy the maximum demands of justice is no longer law is therefore not at the center of the argumentation Rather, it is a matter of accomplishments which law adds to morals that morals cannot provide on their own So the question is not: What is law without morals, but what are morals without law? According to this, law is a part of justice delimited by certain criteria as differentiae specificae, which realizes its goals with its own, ethically justifiable means In a Kantian approach, Hermann Cohen emphasizes quite different qualities of law and jurisprudence Ethics and jurisprudence refer to each other like logic and mathematics Accordingly, ethical norms are related to legal norms such as the propositions of logic to those of mathematics 11 Just as mathematics works out the forms of thought for the order of physical impressions, logic holds ready the general concepts and final forms of mathematics Without the activity of mathematics, logic would possess general forms of thought, but it could not concretize them into a system For the elaboration of a system, logic is thus dependent on the cognitive activity of mathematics as its material Analogously, ethics must be understood as the logic of the humanities and jurisprudence as the humanities’ mathematics Social life then corresponds to the perceptions of physics to be understood The relationship between the pure forms of thinking and their application and implementation to mathematical problems is found in the humanities again in the moral norms as “infinitely distant points” and the legal norms which form these into concrete regulations However, this alone would not result in any interplay Morals gain from law something that it does not possess of itself, in that law’s clear and procedurally legitimized forms contribute to the specification of vague and controversial moral propositions 12 Just as mathematics is a “fact” of logic, so jurisprudence is a “fact” of ethics Law refers to social life by creating its regulatory forms While in the Aristotelian-Thomist tradition law leads the moral project of a good order to its end by referring substantially to the external relationship between people, which ethics does not reach, in the perspective of the Marburger Neukantianism of Cohen law adds a formal dimension to morals, which they cannot achieve without it: The clearly defined normative form of an ethical “fact” 9 10 11 12

Thomas Aquinas (note 7), II–II, Q 57, 1 ad 2, p  7; also Summa Theologiae Translated by Fathers of the English Dominican Province, http://www documentacatholicaomnia eu/ (last accessed Feb 2019), I–II, Q 90, 2, reply, and 95, 1, reply, pp  92 f ; Q 95, 4 reply; Q 96, 5, reply Thomas, however, represents: Thomas of Aquinas (note 9), I–II, Q 95, 2 Resp Hermann Cohen: Die Ethik des Reinen Willens Hildesheim, 5 Aufl (Repr of the 2nd rev ed Berlin 1907) 1981, p  66 Cohen (note 11), pp  65 f and pp  228 f : “Not only the law is dependent on ethics, but also ethics must go back to jurisprudence, to recognize the fact of a science for the continuation of the transcendental method in it” [my translation, SK]

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Hans-Georg Gadamer emphasizes yet another quite different advantage of law: Together with the theological hermeneutics, jurisprudence is exemplary for interpretation in the historical humanities Theology as well as jurisprudence lived from the tension between text (proclamation or law) and its meaning in its application in sermon or judgment 13 To serve the application, understanding in both disciplines subordinates itself to the “superior aspiration of the text” Theological hermeneutics would have the task of bringing to bear the sense of the divine promise contained in the text in an alienated form Accordingly, legal interpretation is directed towards the legal will Jurisprudence should thus, in addition to theology, make conscious in a special way the application of all interpretations and thus remind humanities of their genuine method 14 The distinguishing feature of legal understanding and interpretation is thus its historicity: Guided by the changing needs of each present, it updates the meaning of the law Thus, the scholar in the humanities owes the “elevation of the historicity of understanding to the status of a hermeneutic principle” to the legal scholar 15 The three views mentioned above highlight very different qualities as particular to the nature of law and jurisprudence The Aristotelian-Thomist tradition regards law as the ethical maximum, because it realizes ethics in the interpersonal realm and thus expresses justice and the common good According to the Neo-Kantian philosopher Hermann Cohen, law and jurisprudence add something to ethics that ethics itself cannot achieve: By structuring social reality through clear forms, law presents a “fact” for ethical reflection For Hans-Georg Gadamer’s hermeneutics, legal method, understood as the interpretation of the meaning of the law from the concrete-historical case, is a model for the forgotten historicity of the hermeneutics of all the humanities While the first conception sees the special achievement of law in increasing the content of the moral order, the second view understands its advantage as a matter of form In the third perspective, the advantage of law seems to lie in the method of its treatment Content, form or method therefore seem to give special meaning to law and jurisprudence These three conceptions certainly do not highlight the advantages of the law conclusively,16 but point to three opposing types of its benefits Substantial concepts of law tend to give less consideration to the form of the law and thus to a monism of the social order, while formal positions tend to a dualistic perspective on separate

13

14 15 16

Hans-Georg Gadamer, Truth and Method Transl by J Weinsheimer and D G Marshall 2nd ed New York 1989, p  325: mediation In reality then, legal hermeneutics is no special case but is, on the contrary, capable of restoring the hermeneutical problem to its full breadth and so re-establishing the former unity of hermeneutics, in which jurist and theologian meet the philologist” Gadamer (note 13), p  323 “Legal hermeneutics serves to remind us what the real procedure of the human science” and p  324 Gadamer (note 13), p  267 From a methodological point of view, for example, reference should still be made to Coluccio Salutat, From the primacy of jurisprudence or medicine De nobilitate legum et medicinae, Munich 1990, p  77

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systems of norms or to the separation of facts and norms Process-oriented approaches have the potential to convey either of these positions The following remarks pursue the goal of proving these three perspectives to be reductionist inasmuch as they claim content, form or process to be the only decisive criterion of law They try to avoid the error of their indiscriminate unification Rather, the idea of transformation as a differentiated yet uniform structure of law is intended to convey content, form and method If we want to analyze the additional value of law und jurisprudence to morals, we have to determine the relation between law and morals first This again depends on the concept of law Given the just mentioned distinctions, I will differentiate substantial and formal concepts of law III. Substantial Approaches in the Philosophy of Law 1 The Concept of the Substantial Approach In the following, I will understand substantial theories of legal concepts as theories that distinguish law from other norms by a certain regulatory content or function The content of the regulation specifies the kind of norms that count as law: a norm that contradicts this content is not law If one does not want to label these norms more closely, they can simply be described as non-law However, it is not only “bad”, “flawed” or imperfect and in this sense unjust law, because injustice is a deficient law and therefore still law 17 I use the term “substantial approach” in an ideal-typical way here and therefore do not limit it to the above-mentioned Thomist-natural-law theories Thus, it may well be that a certain philosophy of law uses additional elements besides the content of a regulation to define law In such a case the theory is only a substantial approach insofar as its definition for what counts as valid law is based on the content of the regulation Thus, in addition to purely substantial legal concepts, there are also hybrid forms that also use formal elements to define and justify law The substantial and formal distinction was taken here in order to examine whether a sufficient definition of the concept of law can result from certain substantial requirements or principles of law This does not mean that substantial theories are equivalent with natural law theories Although formal theories will be mostly positivist theories of law and in many cases material theories of law are non-positivist theories, natural

17

I follow here the distinction of Gustav Radbruch in his famous formula He distinguishes here “flawed” law and law that “is not even an attempt at justice” This statutory law “lacks completely the very nature of law” Whereas “flawed law” is unjust law, the latter is non-law, Gustav Radbruch: Statutory Lawlessness and Supra-Statutory Law (1946), translated by Bonnie Litschewski Paulson and Stanley L Paulson In: Oxford Journal of Legal Studies 26 (2006), pp  1–11, p  7

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law theories take a certain (mostly moral) content that is unavailable for arbitrary human change as the decisive criterion of law 18 For substantial theories, this is not necessary The content which is the defining criterion of law can also be a social function or a historically changing idea “Substantial” therefore is broader than “natural” in natural law theories A number of legal theories focus on different aspects of the content of legal regulation as the relevant criterion for determining the law This can be normative criteria such as justice,19 the common good,20 freedom, correctness21 or other values22 but also empirical events, which are supposed to be essential for the concept of law In the latter case, legal rules are expressions of certain facts or serve to bring about certain facts While the first group could be called “value-based”, the second can be called “factbased” Depending, for example, on whether law is an expression of social interests or is aimed at regulating conflicts of interest, the factual theories can again be subdivided into genetic (social interests as origin) and functional (conflict regulation as main criterion) ones Value-based legal theories regard at least elementary demands for justice or the common good as characteristic of the legal concept One example is the aforementioned Aristotelian-Thomist natural law tradition Idealistic teachings on the law of nature and reason rather emphasize the aspect of freedom They differ in their understanding of freedom, as expressed, for example, by the Kantian23 or Hegelian24 legal concepts At first glance, theories emphasizing the claim to correctness as a necessary element of law have a different scope However, in common with the other value-related legal concepts, they hold it that a rule which does not claim to be justified by some 18

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A norm would be natural law, if it has a non-human origin and is supposed to be a measure of human action This definition is a merely heuristic instrument and does not suppose that there are in fact such norms, Stephan Kirste Naturrecht und Positives Recht In: Handbuch Rechtsphilosophie Hrsg v E Hilgendorf u J Joerden Stuttgart 2017, pp  15–24, p  15 Aurelius Augustinus, St Augustin’s City of God and Christian Doctrine Transl by Ph Schaff, Capter 4, p  116: “Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms?” In a further expression using a more comprehensive concept of justice Gustav Radbruch: Rechtsphilosophie, 3rd ed 1932, ed by R Dreier and St  Paulson, 2nd ed Heidelberg 2003, p  34 Cf Adolf Trendelenburg: Naturrecht auf der Grundlage der Ethik, 2 ed Leipzig 1868, p  83 William Blackstone: Commentaries on the Laws of England Oxford 1768, Introduction, § 2, pp  38 ff About Peace, Theodor Welcker: Recht In: Staatslexikon Vol  13, Altona 1842, p  485 Immanuel Kant: The Metaphysics of Morals Transl by Mary Gregor Cambridge 1991, p   56: “Right is therefore the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom” The translation is problematic insofar as it uses the individual term “right” instead of the objective term “law” Kant speaks of the objective concept of law The “universal law of freedom” is in German “allgemeines Gesetz der Freiheit”, more a statute enacted out of autonomy Georg Wilhelm Friedrich Hegel, Enzyklopädie der philosophischen Wissenschaften im Grundrisse 1830 Third Part: Die Philosophie des Geistes, vol  10, Frankfurt/Main 1986, § 486, p 304

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value loses its legal character It differs from the other value-based theories in that it is not based on a specific value The claim to correctness is fulfilled by a moral justification of a norm Robert Alexy takes this view in a relativized form: Only beyond a threshold of extreme injustice shall the violation of the claim to correctness be classifying, below this threshold only qualifying This means that only an extreme offence against morality leads to non-law, while simple offenses only make it unjust 25 Following Gustav Radbruch here, the criterion “extreme” should not be understood as merely quantifying, but in the sense that the boundary between justifiability and non-justifiability is marked here After all, it means that a qualification of the same object – namely a regulation – changes into a classification – exclusion of the regulation from the class of law: If the criterion “extreme” applies to a norm, the “in-(just)” becomes a “non-(legal)” when considering the legality of the regulation The question of when the criterion to be fulfilled is met, has do be decided by comparing the content of the law with moral norms The mere content of a norm can make it something other than a legal norm Concepts defining law by relation to social facts proceed from certain influencing social factors on legal regulations or, conversely, from certain effects of law which are assessed as positive If it is assumed that all legal regulations can be traced back to social interests26 or result from natural needs,27 then these are views that can be counted among the subgroup of genetic legal concepts within factual material legal concepts Functional legal terms are more prominent though They define law by the tasks that its regulations have to fulfill This can in turn be the satisfaction of interests; but it can also be the stabilization of expectations,28 security or peace As it is not possible to determine these objectives completely free of value, it is doubtful whether this subgroup can be sufficiently distinguished from the previous one In any case, the value-based view argues axiologically from the point of view of the primary orientation, whereas the factual state is decisive for the theory group mentioned here With respect to this, values have a more instrumental or subordinate character 2 Achievements and Problems of the Substantial Approach to Law Substantial approaches in the philosophy of law correctly indicate that legal norms and their regulations are expressions of value convictions and that they have functions in society They thus show that the meaning of legal norms is not limited to any particular

25 26 27 28

Robert Alexy: The Argument from Injustice A Reply to Positivism Transl by Bonnie Litschewski Paulson and Stanley L Paulson Oxford 2002, pp  48 f Philipp Heck: Gesetzesauslegung und Interessenjurisprudenz In: AcP 112 (1914), pp  1–318 (17) Ernst-Joachim Lampe, Rechtsanthropologie, Berlin 1970 Niklas Luhmann: Rechtssoziologie I, Opladen 1972, p  105

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legal system, but goes beyond it It is precisely when one abstracts from the particular legal form in which this meaning occurs that its social function becomes clear They can hinder or optimize the realization of moral norms They do not only have an internal function in the legal system, but also a social function We tend to ignore these, if we emphasize the distinctions between law and morality or advocate a “Pure Theory of Law”, which excludes all or most social aspects 29 However, the question arises as to whether the claim that the substantive content of a regulation tells us something about the legality of law, is correct Public welfare, justice, or freedom may be brought about by a multitude of norms, not all of which are legal norms Ethical or moral norms may serve these values much more purely because they do not have to take into account the actual conditions of their realization Now law is not be directed towards justice in general or freedom in general Kant, for example, speaks of justice towards others and external freedom 30 It has to do therefore only with a specific subrange of these values The value justification of the law would only remain decisive if these specifications were derived from the values themselves However, they do not follow from these, but from the characteristic elements of law The fact that law only has to do with justice towards others or with external freedom does not result from the concept of justice or freedom, but from the structure of law Morals therefore make demands on law because they presuppose law, not because they found it Moral values qualify law, but don’t classify it On their basis, law can be judged to be better, worse or completely worthless, but morals have no criteria at their disposal to determine law as law They can only convey to the law the quality or show its absence which corresponds to their own class: a legal regulation thus appears morally worthless if it is (extremely) unjust The criterion of extreme injustice or impossible moral justifiability also denies the moral qualities of law, for morality is the yardstick by which the criterion of “extremity” is determined, the spectacles that make this threshold visible in the first place Decisive for this qualification of law are the criteria of any or – depending on the concept of moral validity of law – a specific (justifiable) morality Accordingly, the substantial perspective is not “wrong” Morality has to do with the evaluation of human actions If law is an expression of actions, then it can also be evaluated morally The fact that these actions are aimed at legal regulations also makes their result – as Thomas Aquinas writes: The “legality of justice” – morally

29

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Hans Kelsen: General Theory of Norms 1947, p  XV: “The pure theory of law insists upon a clear distinction between empirical law and transcendental justice by excluding the latter from its specific concerns … the pure theory of law seeks to attain its results exclusively by an analysis of positive law … It is by confining jurisprudence to a structural analysis of positive law that legal science is separated from philosophy of justice and sociology of law and that the purity of its method is attained ” Cf above note 23

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criticizable However, all the criteria it provides qualify the law only morally, saying as little about the legal character of a norm as about the legal action itself Substantial approaches also argue structurally They do not only present qualifying but also classifying arguments This concerns the principle argument put forward by Dworkin and Alexy According to Dworkin and Alexy, law necessarily contains principles31 whose content cannot be distinguished from moral principles 32 If one focusses only on the content, this seems to be true at first: Equality is a moral, as well as a legal, principle The same applies to freedom, human dignity etc However, this neglects the fact that these principles are not amorphous as moral principles and would in this amorphous stage represent the moral content of the legal order Rather, they have the form of morality and then as law, a legal form There are also different forms of justice – religious (an eye for an eye in the old testament or in an opposite sense by turning the other cheek in the Sermon on the Mount) or poetic33 – from which their legal form is to be distinguished, even if we accept some mutual influences of these different forms Therefore, such substantialist conceptions of law do not sufficiently take into account that these principles are systematically linked The link to positive law differs from the moral one In positive law, principles are limited by opposing principles or only partially codified This means that they have been cast in a form that distinguishes them from their moral form and determines their character and content The recourse to the moral principle, which is similar in content, is then only possible insofar as the legal form itself permits it Substantial functional theories are no less questionable First of all, as with the valuebased substantial definition of law, the question arises as to why exactly law should provide for the balancing of interests, peace, security, etc ? What makes it such a useful tool for this function? There may be other means that achieve this just as well or better However, if security is to be achieved through law, it is indeed something normatively different from it being achieved through power or force This also means that the function which law fulfills presupposes the classifying characteristics of law and not the other way round, that the function determines the character of law 34 Law also does not want to achieve these tasks at any price, but only in order to achieve it at a legally justifiable one The shooting down of an airplane used by terrorists as a weapon, or the torture of a captured kidnapper to protect the victims is mostly ruled out as a price to be paid by a legal system when considering human dignity as its ultimate value The 31

32 33 34

The argument of principles consists of the incorporation thesis (every at least minimally developed legal system necessarily contains principles), the moral thesis in its weak version (connection of law with any moral) and the correctness thesis (justifiability of a legal decision with the right moral), in addition: Alexy (note 25), pp  68 ff Alexy (note 25), p  75 Martha Nussbaum: Poetic Justice The Literary Imagination and Public Life Boston 1995 See, for example, Karl Bergbohm, Jurisprudenz und Rechtsphilosophie, Leipzig 1892, p  80 Julius Binder, Philosophie des Rechts, Berlin 1925, p  238

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State must not achieve the safety of its citizens by violating their rights or inalienable rights of the perpetrators The nature of the law can therefore not be derived either from its moral evaluation or from the functionality of its rules However differently, moral values can be realized, and social functions can be achieved by other forms of social orders than legal ones If this realization or this function is to be achieved by law, they are subject to typical restrictions which distinguish them as law IV. Formal approaches in the philosophy of law 1 The Legal Concept of the Formal Approaches I understand theories as formal if they determine the concept and the nature of law on the basis of its form 35 Form can include any way a norm appears, like its character as a command, acceptance or enforcement Again, we can group these theories by at least two possible criteria for the form of law The first is the mode of origin (genetic-formal legal concepts), the second is its mode of realization (effectiveness-oriented legal concepts) Any norm which fulfils these conditions of origin and/or these modes of realization can be law without regard to its content This classification suggests a proximity to legal-positivist positions However, just as the substantial approaches are little exhausted in natural-law concepts, little supports the proposition that the characteristic of formality covers only legal or decisionist positivist theories of law 36 If, for example, acceptability is assumed to be an essential criterion of law,37 then this criterion does not have to belong to a positivist theory, but can also be formulated by natural law theories as a requirement of every law 38 Because we are interested here in the question as to whether the form of law is decisive for our understanding of its nature and concept, the dispute between natural law theory and legal positivisms about the preexistence of the normative validity criteria of law is not meaningless, but subordinated

35

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A different understanding of formalism in Weinrib Here formalism serves to separate law from politics: Ernest J Weinrib, Legal Formalism On the Immanent Rationality of Law, in: Yale Law Journal 97 (1988), pp  949–1016; against him Roberto Mangabeira Unger, The Critical Legal Studies Movement Cambridge/Mass 1986, with a definition of the criticized formalism on p  1 See also Peter Koller: Der Begriff des Rechts und seine Konzeptionen In: Rechtsphilosophie im 21  Jahrhundert Hrsg v W Brugger, U Neumann und S Kirste 2nd ed Frankfurt/Main 2009, pp  157 ff Ernst Rudolf Bierling: Juristische Prinzipienlehre, vol  1, Tübingen 1894, p  19 Johann Gottlieb Fichte: Grundlage des Naturrechts nach den Prinzipien der Wissenschaftslehre Fichtes sämtliche Werke, vol  III, Berlin 1965, § 12, p  123

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Genetic formal theories distinguish law from other systems of norms by the nature of its kind of origin For some philosophers like John Austin, the fact that law is a general command is decisive (imperative theory) 39 Form is here the command, content the commanded norm Similarly, others consider any norm that is an expression of authority law40 or take the fact that law is enacted in a generally binding manner (legal positivism) as the core feature of law 41 Here authority or enactment make for the legal form Others, like the Viennese normativist theory of law, object and hold that we can only understand a certain expression of will as law if its normative meaning can be traced back to a basic norm 42 The normative reconstruction of legal acts by its ultimate source, the basic norm, serves as the form here If a discourse theory regards every result of a certain discourse as law, independent of its moral or ethical content,43 as far as it observes the rules of discourse, it would also be assigned to the formal theories of law 44 Moral substantial and legal discourse would then be in a complementary relationship to each other 45 The form is here the structure of the discourse Historical materialism, which regards law as a superstructure phenomenon that emerges from economic relations of production, would also be such a formal theory 46 The fact that the content of the legal norm should then also be an expression of class interests is merely a consequence of this Law’s appearance as a superstructure shapes its appearance and is therefore formal Finally, despite all substantial differences from the aforementioned approaches, Niklas Luhmann’s Theory of Social Systems is a formal theory If he understands as law all communication which is oriented towards the binary code of legal/illegal47 and the norm programs which concretize it,48 it adopts a formal criterion as a form-closing 39 40

41 42 43

44 45 46

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John Austin, The Province of Jurisprudence determined, London 1832, pp 5 f Carl Schmitt, On the three types of juristic thought Transl by Joseph W Bendersky London 2004, p  60: “For jurists of the decisionist type, it is not the command as command, but the authority or sovereignty of an ultimate decision with which the command is given that is the source of all Recht, that is, all ensuing norms and orders” Karl Magnus Bergbohm: Jurisprudenz und Rechtsphilosophie, First Volume, Leipzig 1892, p  546 Hans Kelsen: The Pure Theory of Law Trans by M Knight Clark, NJ, 2008, p  199 The legal discourse should therefore not be understood as a special case of the general practical discourse in the sense of a discourse connecting “moral, ethical and pragmatic questions and reasons”, the “special case” of which consists in the fact that it is subject to certain institutional conditions But so Robert Alexy: Theorie der Juristischen Argumentation, 2nd ed Frankfurt/Main 1991, pp  263 ff and 426 ff Skeptical Jürgen Habermas: Between Facts and Norms Transl by W Rehg Cambridge 1996, pp  233 f Habermas (note 44), pp  107 f Karl Marx  / Friedrich Engels, Manifesto of the Communist Party, transl by Samuel Moore in cooperation with Frederick Engels 1888, p  24: “just as your jurisprudence is but the will of your class made into a law for all, a will whose essential character and direction are determined by the economical conditions of existence of your class ” Niklas Luhmann: Law as a Social System Oxford 2004, p  119 and pp  171 ff , 192 Luhmann (note 47), pp  176 ff , 192

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distinction of law 49 Systems theory is a genetic theory because it is based on the fact that communication shaped in this way and only it – not any other code – can produce law In a sense, it can even be described as “hyper-genetic” because all structures exist only as long as they are communicated Law therefore only exists in one respective act of communication and arises again in the next act relating to the other legal communications 50 The group of effectiveness-oriented legal theories includes such approaches that aim to differentiate law from other norms through its mode of realization The focus here is on the compulsive theories of law 51 Law should be characterized by the fact that its provisions can be enforced by physical or psychological coercion 52 Objections against this approach refer, among others, to the impossibility and unnecessary nature of the compulsory enforcement of each individual legal norm at any time The general enforceability in case of noncompliance would be sufficient 53 Others offer as an alternative not to focus on moments of constraint at all, but on the actual acceptance of the legal staff54 or of those subject to the norms, or at least on the acceptability of these norms 55 2 Achievements and Problems of Formal Theories It cannot be the task of these considerations to analyze the theories of the origin and validity of moral norms or actual, traditional or power-related structures of social order in detail Law differs from these, however, in the reflexive structure of a decision on the validity of norms At the same time, it is not only based on knowledge or intuition, but also on decision 56 At least in the form of laws, the one-sidedness of a command has been replaced by a differentiated decision as the result of a structured discourse The reflexivity of this decision lies in the fact that it is itself subject to norms that de-

49 50 51 52 53 54 55 56

Luhmann (note 47), p  101: “coding has two peculiar properties: it can be applied universally no matter what is being communicated, and it makes the closure of the system possible by reformulating its unity as a difference ” Luhmann speaks of “historical systems” (note 47), pp  85, 318 Rudolf von Jhering: Der Zweck im Recht I 3rd ed Leipzig 1893, p  322 Frederick Schauer: The Force of Law Harvard 2015 Theodor Geiger: Vorstudien zu einer Soziologie des Rechts Neuwied 1964, p  339 Alf Ross: On Law and Justice London 1958, p  35 In addition, the theorists of American Legal Realism, such as Oliver Wendell Holmes or Roscoe Pound, should be mentioned here Knut Illum, Vilhelm Aubert: Concept of Law, in: Kentucky Law Journal 52 (1963/4), pp  363–385 (369 f ); also the emotivism of Scandinavian legal realism (Axel Hägerström) Niklas Luhmann: Positivität des Rechts als Voraussetzung einer modernen Gesellschaft, in: Ausdifferenzierung des Rechts, Frankfurt/Main 1981, pp  113–153 (122)

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fine the criteria for the formal procedure and, in part, the result in advance 57 The same applies to effectiveness in terms of compliance with the norm or sanctioning its violation Here, too, the commitment felt inwardly is not enough, but only the decision in an external action or omission However, this behavior, like sanctioning, is not merely factual, but is in turn shaped by the norm – sanctioning, for example, by enforcement laws The form of law as a normative-reflexive setting and enforcement of norms thus represents the difference between law and other norms, which can serve as the classifying criterion Especially Neo-Kantian58 and legal theories influenced by Neo-Kantianism59 have shown that the content of norms is valid only in certain forms At the same time, like other formal theories, they point out that similar substantial regulations can occur in different forms They can be valid as moral norms and/or legal norms, accordingly It follows that the content/substance of a norm does not tell us anything about whether it is law, morality or custom The equality of the content of the norm in different systems of norms leads to its insignificance in relation to the determination of the form of regulation The consequence of this is that even unjust and purposeless norms remain law if they only meet the formal requirements of law However, problems arise with regard to the selection of the criteria determining the legal form and thus the legal concept Naming factual characteristics such as command or other power-based setting or recognition in the genetic approaches and coercion in the effectiveness-oriented approaches are self-contradictory, if they are to determine law as a norm These theories indeed show correctly that (1 ) law is also a decision, therefore cannot be understood merely referring to its rational content, but must be promulgated, and (2 ) that it should not only influence in foro interno, but should also influence external actions However, by using facts to determine the difference between law and other natural and social orders, these theories are doing the opposite of what they intend to do: They explain the characteristics of law by something it is not Even those formal theories that seek to explain law by the fact of a particular setting or specific enforcement do not claim that any command, recognition or coercion is law The command must be authorized, as the enforcement must be Since not every57

58 59

The extent to which this also applies to the discourse of the constitution has been explained elsewhere: Stephan Kirste, Die Zeit der Verfassung, in: JöR N F (in publication); this transformation can be described as a “transformation into law”, Aulis Aarnio / Robert Alexy / Aleksander Peczenik: The Foundation of Legal Reasoning In: Rechtstheorie 12 (1983), pp   133–158, 257–279 u 423–448, p  142 On this subject Neukantianismus und Rechtsphilosophie Ed by R Alexy  / L H Meyer  / S L  Paulson / G Sprenger (Interdisciplinary Studies on Law and State, 25) Baden-Baden 2002 Stanley Paulson, Konstruktivismus, Methodendualismus und Zurechnung im Frühwerk Hans Kelsens, in: Archiv des öffentlichen Rechts 124 (1999), pp  631–657 (637 ff ); also Stanley Paulson: Hans Kelsen’s Earliest Legal Theory: Critical Constructivism In: Modern Law Review 59 (1996), pp  797 ff ; Stanley Paulson: The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law In: Oxford Journal of Legal Studies 311 (1992), pp  311 ff

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one subject to a norm will recognize it, it must be regulated that the recognition of a majority counts as a proper recognition After all, not every constraint is law, but only one that applies to the enforcement of a norm and is itself normatively controlled Thus, a selection of those facts takes place, which are to be characteristic for the law From a formal perspective, this selection does not follow certain values as in substantial theories, but normative criteria of setting and/or implementation The decisive factor in determining the nature of law, however, is the normative selection between the facts which give rise to the nature of law and not those that do not It follows that the benchmark for what constitutes law does not derive from the facts themselves but from the rules determining the relevant characteristics of those facts This suggests Hans Kelsens’ normativist variant of the genetic formal theories. With his foundation of law in a basic norm (“Grundnorm”), which he understands as a transcendental-logical prerequisite of law,60 he can, however, also only offer a logical criterion as determining the concept of law:61 Law is thus understood as a logical norm and not as law Although the basic norm functions as an explanatory ground of the normative sense of an act of will, this can only be done in a purely normative sense This sense takes into account the difference between norms and facts,62 but not between different types of norms The basic norm does not contain a criterion for this Whereas a concept as an explanatory ground for the understanding of a phenomenon has the same content (e g law) as the phenomenon, but in a different form (positive law – law as a thought of norm), the basic norm has the same form, positive law has (it is a norm), but a different content (positive law: act of will; basic norm: logical fiction or hypothesis) To offer the chance of realization of law as a criterion for delimiting morality63 means to cite a characteristic of law that in general Kelsen does not consider as essential for delimiting morality The assumed relativity of morality and its ideological character speak against a superior rank of morality, but only make statements about the delimitation of the law from it in terms of content and not concepts This problem could be solved by distinguishing between different systems of meaning, by a certain form according to which they can only produce their own meaning Law then represented such a self-constituted context of meaning, which would differ from other contexts of meaning, such as morality out of itself Niklas Luhmann’s theory of social systems pursues such an approach Although the focus of this theory is on the communicative structures of society and only to that extent on law as a normative

60 61

62 63

Kelsen (footnote 32), p  32 Hans Kelsen: Hauptprobleme der Staatsrechtslehre, 2nd ed Tübingen 1923, p  23 Kelsen (note 42), p  199: “In this sense, the basic norm dermines the basic fact of law creation and may in this respect be described as the constitution in a logical sense of the word … in contradistinction to the constitution in the meaning of positive law” Kelsen (note 42), pp  17 f Kelsen (note 42), pp  62 ff

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expectation,64 this also has consequences for a theory of law as a norm Norms appear here as communicated structures of meaning However, it is decisive that these meaning structures are constructed exclusively by and within the respective system The legal system thus constructs normative meaning only on the basis of legal acts of communication When trying to affect the environment, sense becomes nonsense, and vice versa, other social systems are not able to insert their meanings into the legal system either The cognitive openness of the legal system only acts here as a sensitivity for disturbances 65 Although legal communication can be clearly differentiated from other forms of communication by reference to the basic distinction legal/illegal, it is not possible to differentiate between legal communication and other forms of communication However, the observation of law as legal communication only reaches its limits from within The borders themselves do not have any meaningful transparency, so that they cannot even be understood and communicated as borders in the system Approaches in the theory of law defining the concept of law by its form may thus show that the form of law is the element which explains its specific character and on the basis of this its concept can be determined 66 The form then has a classifying function However, problems of these theories arise in particular when non-legal criteria are used to specify the form because they are not sufficiently specific to the law However, it is not enough to avoid this problem by simply offering normativity as a formal criterion for determining the law Although Kelsen’s normativist approach takes account of the fact that factual criteria cannot in themselves determine the law as a type of norm, it can only explain the normativity of the law, not its specificity Although the latter is achieved by systems theory, at the same time the formal closure of the legal system is so strong in relation to other social phenomena that no content is allowed to pass through Therefore, also the species classifying characteristic of law – the code right/injustice – appears not only as formal, but as formalistic, i e empty of meaning itself The concept of law cannot therefore be determined by reference to its content, but only by reference to its form The reason for this is that the content of regulations in different normative systems (law, morals custom) can be similar at any rate, i e it represents a moment of continuity between different normative systems Neither can law be defined simply as a norm or by a criterion without sense of content, as in system theory, because its specifics are not captured in this way Thus, the task of defining the concept of law to find a form that contains sufficient delimitation criteria and at the same time makes it sufficiently meaningful This shall be tried here with the concept of transformation

64 65 66

Luhmann (note 47), pp  71 f Luhmann (note 47), p  80 Applies insofar Weinrib (note 35), pp  958 and 965 f

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V. Law as Transformation “Transformation” is a term that has so far hardly been established in the philosophical or legal-philosophical tradition 67 Even to the extent that analytical theories of legal reasoning fall back on it, it has been used for processes within the law, not to identify the law itself 68 Philosophically, the concept was mostly used in monism, where it described an evolutionary transition from one form of development to the next 69 However, the restriction of the use of expression in the context of a monistic theory is not necessary In the following I will use a concept of transformation to overcome the opposition of substantial and formal conceptions of law Transformation (of law) will be understood here as the change of a norm, in which the content of a norm is given a new form The change consists in the transfer of a norm content from one form to another 70 Since the content of a norm is shaped by the form, the content also changes as a result of the re-forming Since the form is also oriented to the order of certain substances, it is also influenced by this 71 However, the structure of the (legal) form is not called into question This distinguishes transformation from revolution By changing the form (of a norm content), the transformation can be distinguished from the reform Transformation is therefore neither the change of a form, nor the mere further development of the same form The substantial approaches of legal theory had aptly emphasized the relationship of the law to morality and interests but neglected the fact that these do not affect the law in an unformed way and do not find their way into the law unfiltered The formal approaches had correctly worked out the difference between law and other norms, while neglecting the meaning of law, which is not exhausted in the legal system These appear to be irreconcilably opposed views If, however, the three theoretical examples from the introduction are taken into account once again, it becomes clear that the strongly substantial argumentation of

67

68 69 70 71

But see Gabriel Tarde, Les Transformations du droit, Paris 1893, who understands transformation in an evolutionary-sociological sense So does Bruce Ackerman, We the People: Volume II, Transformations Cambridge/Mass 1998; Helmut Kohlenberger: Die Transformation des Rechts auf dem Hintergrund unserer gegenwärtigen kulturellen Lage In: W Krawietz / Th Mayer-Maly (ed ): Objectification of legal thinking Festschrift for Ilmar Tammelo, Berlin 1984, pp  481–489 Aleksander Peczenik: Grundlagen der juristischen Argumentation Wien 1983, p  5 et seq ; Aarnio/ Alexy/Peczenik (note 57), pp  133 f Ernst Haeckel: Generelle Morphologie der Organismen, Bd 1: Allgemeine Morphologie der Organismen Berlin 1866, pp  105 ff It therefore does not only refer to the argumentative transition from norms via levels, according to the approach of Aarnio/Alexy/Peczenik (Fn 44), pp  136 f It is therefore one-sided to speak of a substantial determination of the idea and not (also) of a determination of the form by the substance like Gustav Radbruch, Rechtsidee und Rechtsstoff, in: ARSP XVII (1923/24), pp  343–350

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the Aristotelian-Thomist natural law tradition also believes that law is capable of an achievement that does not result solely from justice Human positive law is enforceable and based on decisions about the right made on the basis of knowledge and discourse about justice Morality and law thus stand side by side as two forms of norms for action 72 The advantage of the characteristic features of law corresponds to the disadvantage of a possible deviation from non-legal norms Dictatorial regimes such as National Socialism show that this is at the same time associated with a de-differentiation of the legal system, a mythization73 and thus a loss of inherent complexity and the ability of the law to control, which again increases the importance of moral arguments for solving social conflicts No matter how justice is conceptualized as law, it depends on human decisions The substantial theory must therefore also admit that the non-positive legal norms undergo a change when they are recognized Cohen had emphasized the exactness of the legal argumentation, which brings the social reality into a higher, moral rational form and at the same time represents a kind of application of the formally understood propositions of ethics Law thus leads to a change of this – as one could say in a slight modification of Kant: – raw material of practical-sensual perception and at the same time of ethical principles 74 Interests, convictions, moral norms, become legal regulations, if they are selected by legal procedures and existing legal value decisions They are further specified in the application of the law Legally ordered democratic procedures for setting norms give legal legitimacy to the generally binding norms 75 Constitutional or simple legal regulations give institutional legitimacy to the organs of legal concretization It is supplemented by a legally structured personal legitimation through the election or appointment of officials with parliamentary responsibility Regulations on the application of law at various levels of the norm, which can be ultimately attributed to a democratically elected legislator, legitimize the legal regulations objectively Finally, law enforcement is far from being mere coercion or use of force, but follows rather legal norms and legitimation structures Law itself gives facts certain relevance and receives non-legal norms and social principles as part of the legal system It receives them explicitly (e g in blanket regulations or general clauses) or implicitly 76 This reception is not a mere takeover that leaves the 72 73 74 75 76

Habermas (note 44), p  106 Ernst Cassirer: The Technique of Our Modern Political Myths (1944), in: Symbol, Myth and Culture Essays and Lectures of Ernst Cassirer 1935–1945, ed by D Ph Verene, New Haven – London 1979, pp 242–267 (252) Immanuel Kant: Critique of Pure Reason Cambridge 2000, p  127 Christoph Schefold: Transformation von “Naturrecht” in “Demokratie”?, in: W Krawietz  / T  Mayer-Maly (Hg ): Objektivierung des Rechtsdenkens Festschrift for Ilmar Tammelo, Berlin 1984, pp  337–375 (358 f ) Habermas (note 44), p  233

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regulatory content unchanged Rather, it means a reconstruction that takes place under the normative auspices of the systematic context of the law itself Differing political views on the scope of ethical principles become compromises in democratic procedures, which are cast in legal form in accordance with constitutional formal and substantive requirements Rousseau has made this clear in relation to the principle of freedom: “What man loses because of the social contract is his natural liberty and an unlimited right to anything that tempts him and that he can attain; what he gains is civil liberty and property in all that he possesses …”77 Although the assessment of “pre-state” freedom is too optimistic, what is decisive is the idea of gaining freedom through the ordering of power by the social contract or other discourses that legitimize power Through these discourses, starting with the constitution, not only freedom, but also all moral principles are placed in a legal context based on human insight and decision, and from it are given their concrete meaning This legally controlled process leads at the same time to a distancing, expansion and abstraction from merely particular social interests;78 it reconstructs these interests and value convictions in a methodically differentiated and well-founded way79 and brings them into the systematic unity of a linguistically fixed form 80 In this way they are placed in a systematic context with other legal norms and shaped by them Although the law can be distinguished from other orders by its form, its content remains related to them Through its formalization, law has not broken off all bridges to them, as systems theory thinks Only the relationship to them is now understood to be shaped by the legal form Law does indeed precede moral norms because of law’s formalized, to more or less conscious setting and enforcement In contrast to factual structures of society such as power and tradition, law is based on normative reflection in emergence and application of its norms In this respect, law can only be understood as a mediation between the two: It uses the actuality of the power of order to make effective the moral and other norms considered binding by the formalized setting and thereby adds to them something they do not possess: rationalization and legitimation At the same time, however, law uses moral and other norms to convert the expressions of will guided by interests into compatible legal claims and to lend legitimacy to expressions of power Thanks to its formality, law gives moral and social concepts of order a clarified efficacy; thanks to its value-relatedness, it breaks open interest dominated one-sidedness of 77 78 79 80

Jean-Jacques Rousseau : The Social Contract and the First and Second Discourses Ed by Susan Dunn Yale 2002, I, X, p  167 Georg Jellinek: System der subjektiven öffentlichen Rechte 2nd ed Tübingen 1905, p  16 The Federalist Papers by Alexander Hamilton, James Madison and John Jay, ed by G Wills, New York u a 1982, No 10, pp  46 f Ernst Cassirer: Axel Hägerström Eine Studie zur schwedischen Philosophie der Gegenwart (1939) In: Ernst Cassirer: Gesammelte Werke, Hamburger Ausgabe Vol  21, Hamburg 2005, pp  99 f

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social power or the petrifactions of traditional orders and opens them to normative evaluation In the free space of its validity, law thus enables the empirical moments of emotions, interests, etc to take on a liberal form clarified and “purified” by norms, as Ernst Cassirer has shown against Axel Hägerström’s emotivism 81 Moral norms gain a social effectiveness passed through the process of awareness and legitimation of their recognition and enforceability Law must therefore be understood as a transformation: Its form breaks the form of social norms Its content is reconstructed by law according to its own formal and substantial criteria and receives legal normativity Social forces and interests become paralyzed in the procedures of law and gain a novel effectiveness as legal will and legally protected interests The floodgates of norms institutionalized through law create the freedom to selectively permit controversial interests and convictions and thus to introduce them into a new order that is characterized by consensus-based value convictions Thus, law as transformation is a symbolic form, part of culture as “process of man’s progressive self-liberation” 82 The process of this transformation is not completed with the establishment of law It is continued in the ever-new concretization of legal norms However, it is always a legal process characterized by the structure of transformation Law can be understood from the perspective of its application, as Hans Georg Gadamer assumes, but only because the facts on which this concretization is directed represent the legally shaped area of norms, and the procedure of concretization itself is subjected to norms 83 The continuous historicity of social development is thus broken by the norm, which is timeless for the duration of its validity, and restructured by a draft of the future which was drawn up in the past and is currently valid 84 This historicity, too, does not therefore continue into a permanent change of law, but is transformed into its form and shaped by it 85

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Cassirer (note 80), pp  86 ff Stephan Kirste: Ernst Cassirer’s Concept of Law and its Relation to Neo-Kantian Philosophies of Law” In: Legal Theory / Teoría des derecho Legal Positivism and Conceptual Analysis  / Positivismo jurídico y análisis conceptual Hrsg V José Juan Moresco Stuttgart 2007, pp 232–245 Ernst Cassirer: An Essay on Man Introduction to a Philosophy of Culture Garden City 1944, p  286 Friedrich Müller: Strukturierende Rechtslehre Berlin 1994, pp  184 ff Cassirer (note 80), p  102: “The determinability of the future through the present and the binding nature of what the present has decided for the future is the moment that enters into every ‘possible legislation’ Law as a cultural fact is based on this anticipation …” Taking this temporal aspect into account, the dimensions of this transformation can be depicted in the image of the cross, see Winfried Brugger: Das anthropologische Kreuz der Entscheidung in Politik und Recht Baden-Baden 2005, if the transformation not expressed in the picture as such is taken into account: Stephan Kirste: Die ‘Rose im Kreuze der Gegenwart’ und das ‘anthropologische Kreuz der Entscheidung’ – das Bild des Kreuzes bei Hegel und Brugger In: Hans Joas / Matthias Jung ed : Über das Kreuz der Entscheidung in Politik und Recht, Baden-Baden 2008, pp  67–94

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The true understanding of both sides of the legal form requires true interdisciplinary research combining jurisprudence and other relevant disciplines 86 So, no matter where it works, and or how it works, law transforms Depending on the area of law and the cultural legal style, the nature of this transformation may be more naturalistic through non-legal factual structures, idealistic through moral convictions, more dynamic following other social developments, or more statistically opposing This is, however, a legal decision to be made according to the norms of law themselves Thus, law forms its own transforming procedures A well-ordered form of transformation of subjective moral convictions into generally accepted legal norms and values, and the transformation of controversial social interests into balanced legal rights is the function that law contributes to society our understanding of law’s nature

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Stephan Kirste: The genuine contribution of jurisprudence to an interdisciplinary discourse Interdisciplinary Research in Jurisprudence and Constitutionalism Hrsg Stephan Kirste, A van Aaken, M Anderheiden, u P Policastro ARSP-Beiheft 127 Stuttgart 2012, pp  47–58

Law and Injustice in Times of Crisis Gülriz Uygur* Justice is the first virtue of institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise, law and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust 1 John Rawls

Introduction Although justice is, as Rawls taught us, the first virtue of institutions, we live in an unjust world, governed by unjust laws and poorly constructed legal institutions Daily injustice is so profound that “the call to justice takes place in silence Voices call out of and to an unsayable silence ”2 The distance between law as it is and what justice would require is so great that many see no connection at all They insist that law and justice are completely separate ideas This is the counsel of despair Human rights law might seem to be an exception to this depressing state of affairs, yet despite significant developments in international human rights law since 1945, the law usually fails to protect human rights in practice In times of crisis, human rights get overlooked, and power acts without restraint After the horrors of Nazism, the genocidal impulse continued in the latter part of the 20th century in places such as Rwanda, Yugoslavia and Bosnia-Herzegovina In our new century, we continue to observe movements against human rights In 2018, for example, Human Rights Watch Executive Director Kenneth Roth reflected that “the retreat of many governments that might have championed human rights has left an open field for murderous leaders and their enablers Mass atrocities have proliferated with near impunity in countries such

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Professor of Law, Ankara University The author is thankful to Colin Starger and Mortimer Sellers for the English editing John Rawls, A Theory of Justice, Harvard University Press, Cambridge 2003, p  3 Marianne Constable Just Silences: The Limits and Possibilities of Modern Law, Princeton University Press, Princeton 2005, p  177

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as Yemen, Syria, Burma, and South Sudan International standards designed to prevent the most horrendous abuses, and emerging institutions of judicial response such as the International Criminal Court (ICC), are being challenged ”3 Roth defines the situation as a hostile environment And law has not improved this environment Now it is possible to say that “the impotency of law to stamp out inhumanity is a conundrum, despite the plethora of rights designed to protect human well-being ”4 Times of crisis make the legal and social environment even more hostile to justice Albert Camus wrote of an “injustice of climate” as the ultimate form of injustice According to Camus, there are not only gross, systemic injustices perpetrated by those with the power to do so, but also the absence of beauty “Beauty in itself of course does not diminish destitution and injustice,”5 but the absence of beauty in the cold, dreary climate feeds hopelessness regarding law and the possibility of justice Generally, the credibility of law is lost when beauty is absent or destroyed The problem here moves in and out of the particularities of law We can identify these particularities if we focus on injustices First and foremost, but above all in times of crisis, we must seek the injustices embedded in existing law and institutions before we can act The title of this Chapter refers to two key concepts: law and crisis Both of these concepts are challenging since their meanings vary In our age, there is a diversity of intersecting crises including migrant, political, ecological and economic disasters I will not discuss all these crises here Instead, I will restrict my discussion to the meaning of crisis as developed by Edmund Husserl By starting with Husserl’s views, we can explain the relationship between law’s origin, essence, or nature and crisis I will show that to overcome crisis, we actually need crisis I will explain this point in terms of both the nature of law and negative and positive ways of thinking about crisis It is possible to update Husserl’s approach to understand contemporary crises in today’s world To do this, we must examine and extrapolate from injustices that we experience in our world Then, we can capture and understand our problems regarding crisis I. A Non-Ideal Theory of Justice Camus warns us against theories that fail to give regard to “the ambiguities of the human condition and to the specific experiences of human suffering and oppression that ani-

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Kenneth Roth, “The Pushback Against the Populist Challenge”, p  1 http://responsibilitytoprotect org/HRW%202018%20World%20report%20 pdf (13 10 2018) Marett Leiboff, “Ghosts of Law and Humanities”, Australian Feminist Law Journal, 36 (2012), p  13 David Carroll, Albert Camus the Algerian: Colonialism, Terrorism, Justice, Columbia University Press, New York 2007, p  226

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mate search for the justice.”6 To explain these particular ambiguities and experiences, I claim that we need a non-ideal theory of justice With a non-ideal theory of justice, it is possible to explain the nature of law in times of crisis My main aim is to show how we can arrive at the particularities of law by proceeding from injustices I do not want to prove the nature of law, but rather to discover law’s essence and its meaning We need to face injustice because the climate of injustice dominates in times of crisis To do this, first of all, we should examine injustices and make inferences Recognizing injustices is not easy since biases, ideologies, and so on block our view Besides this, we also face a diversity of intersecting crises (financial, economic, political, etc ) and so it is even harder to recognize specific injustices in times of crisis than in normal times However, the non-ideal theory of justice helps us to recognize these injustices Ideal theory may state how institutions will be designed according to principles of justice But these ideal principles do not cover all instances of injustice Thus, we need a different (non-ideal) theory to help us see injustice As Elizabeth Anderson rightly stated, it is possible to encounter a gap between the ideal and reality To bridge this gap, we need a theory that seeks to understand the causes of problems in our actual (as opposed to ideal) world This requires detailed empirical investigation Our theory should therefore include a technique of seeing injustices based on empirical investigation To explain this point, Anderson uses the example of a doctor In her critique of ideal theory, she likens recommendations based on an ideal society to “a doctor who prescribes sleeping pills and aspirin to the patient who complains of fatigue, insomnia, and headaches Without a detailed empirical investigation of the underlying causes of the complaints, we risk missing out on more fundamental and complex diagnoses – for example, that the patient suffers from depression, or a brain tumor – and hence risk missing out on genuine solutions ”7 Anderson’s analogy reminds us of the young doctor, Diego, in Albert Camus L’état de siège (the State of Siege) Diego wanted to fight plague To do this, he needed to undertake detailed empirical research about the outbreak 8

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Patrick Hayden, “Albert Camus and Rebellious Cosmopolitanism in a Divided World”, Journal of International Political Theory, 9(2) 2013, p  196 Elizabeth Anderson, The Imperative of Integration, Princeton University, Princeton 2010, p  4 “In L’état de siege, Diego, a young doctor, in the days preceding the delivery of the town of Cadix to the Plague, by its Governor, is living the most exciting days of his life: the judge of the town and the immoral guardian of its morals Casado, has consented, nobody knows why, to give his daughter Victoria to him Even then, Diego was a person differing from the other people of Cadix: he is a man who considers lying as idiocy, who believes that it is a honour that keeps men on their feet; who thinks that to be happy ‘presupposes peace in the cities and villages and this, again, requires a lifelong work; who, at the dawn of their love with Victoria is tyrannised by the thought that one day this love will come to an end While Diego is, thus, living days full of excitement, unexpectedly, the Plague attacks the town ” See Ioanna Kuçuradi, “Value, Values, and Art”, Contemporary Philosophy Volume 9: Aesthetics and Philosophy of Art, (Ed : Guttorm Fløistad), Springer 2007, p  395

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To understand where the law originated, requires an empirical investigation We must infer from injustices, which provide us with the necessary empirical data to reconsider the law’s original evolution from crisis In other words, to identify the particularities of law’s nature, I will start with the concept of injustice as understood by negative thinking about crisis What generates the nature of law? My claim is that law arises first in response to manifest injustices perpetrated in times of crisis Situations of injustice thus reveal the nature of law Although we cannot experience justice, we can experience injustice C Douzinas and A Gearey rightly observe that “we are surrounded by injustice, but we do not know where justice lies …”9 Judith Shklar adds that, we should be aware that “the real realm of injustice is not in an amoral and prelegal state of nature Most injustices occur continuously within the framework of an established polity with an operative system of law, in normal times ”10 Although Shklar is right, injustice in times of crisis is different from injustice in normal times During crisis, Camus’s climate of injustice dominates To understand crisis-time injustice, I have found it best to proceed from Camus to an analysis of (in)justice metaphors in a pictorial image; “for sometimes art can capture in a more immediate way that which becomes garbled and unclear in words ”11 The image I shall use to do this analysis is Giotto’s “The Arena Chapel in Padua”, also used by Shklar to illustrate injustice I shall use Giotto’s work to describe the relationship between injustice and justice, or positive and negative thinking about crisis The Arena Chapel in Padua illustrates both the virtues and vices in a series of grisaille dado frescoes Although there are differences between them,12 justice and injustice do not appear as opposites Rather, they appear to complement each other Injustice makes clear what is due to each person “[W]ithout a sense of injustice, all discussion of justice would remain useless, a play-

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C Douzinas & A Gearey, Critical Jurisprudence: The Political Philosophy of Justice, Hart Publishing, Oxford 2005, p  28 Judith Shklar, The Faces of Injustice, New Haven, Yale University Press, 1990, p  19 Sionaidh Douglas-Scott, Law after Modernity, Hart Publishing, Oxford 2013, p  1 Douzinas and Gearey state the differences between injustice and justice: “the great paradox of justice is that while the principle has been clouded in controversy, uncertainty and disputation, injustice has always been felt great certainty and conviction and creates a sense of urgency We know injustice when we come across it and we immediately feel moved to denounce and attack it with all the powers of reason and imagination, occasionally, with action But when we discuss qualities of justice, both certainty and emotion recede What appears most obvious and striking in advance becomes unclear and controversial in its positive statement What engaged most emotion and commitment when missing, is reduced to emotionless and bloodless speculation when present justice and its opposite are not symmetrical Justice exists and moves people in its breach, its absence makes people concerned with its requirements Injustice is an affair of the heart and of action; justice is a state of affairs belonging to philosophical speculation Injustice acts on the emotions and leads to action; justice is often just an academic exercise or a piece of rhetoric that fails to convince or enthuse ” Douzinas-Gearey, p  28

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thing of those who are, on the whole, happy with the world ”13 Even in just situations, justice always contains injustice The Arena Chapel illustrates injustice and justice as connected to each other To understand this connection – to grasp our inescapable injustice – we need critique Ideal theory cannot clarify how people must act according to the principles of justice Anderson makes an important observation regarding just institutions: “Just institutions must be designed to block, work around, or cancel out our motivational and cognitive deficiencies, to harness our nonmoral motives to moral ends, to make up for each other’s limitations by pooling our knowledge and wills To craft such designs, we must analyse our motivational and cognitive biases, diagnose how they lead people to mistreat others, and how institutions may redirect them to better conduct ”14 Only then can we develop techniques for recognizing injustice Of course, seeing injustices in times of crisis is not easy Neither is it straightforward in normal times There are some impediments, such as strong prejudices and biases which prevent one from noticing injustice 15 It is not easy to be aware of these impediments, especially regarding silenced groups Brooke Ackerly notes that the hardest cases concern silenced groups and that these cases are not easily knowable or observable 16 Relatedly, Martha Nussbaum observes that the climate of ignorance dominates our age She states, “in this climate of ignorance, it is easy for all the mechanisms of fear I’ve identified to operate in a distorting way First and most obviously, 9/11 and subsequent terrorist incidents involving Muslims become fertile ground for the ‘availability heuristic ’ These high-profile events blot out other sources of danger, stopping people from looking at such problems as easy access to guns without background checks, and leading them to support aggressive action in this one case, while neglecting others, as if it were the best way to reduce vulnerability across the board ”17 From Nussbaum’s analysis, we can see how identifying ordinary injustice becomes harder during times of crisis As previously noted, there are intersecting crises in our age This makes identifying ordinary injustices even more difficult To make them more visible, we need a non-ideal theory of justice, including critique In crisis times, critique is paramount for it enables one to grasp something as itself or in its genuine 13 14 15 16

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Douzinas-Gearey, p  32 Anderson, p  4 See Gülriz Uygur, ‘Seeing Injustice’, in Guttorm Fløistad (ed), Philosophy of Justice (Springer, 2014) According to Ackerly hardest cases have three dimensions: “First, they may be mischaracterized as a consequence of choices or bad luck Second, it may be very difficult to identify the actors and institutions contributing to the harms The third characteristic, which is definitive for the argument in this chapter, is that the harm itself may be difficult to observe ” See Brooke Ackerly, “The Hardest Cases of Global Injustice: The Responsibility to Inquire”, Justice, Sustainability, and Security: Global Ethics for the 21st Century, (Ed E A Heinze), Palgrave Macmillan, New York 2013, p  30 Martha C Nussbaum, The Monarchy of Fear: A Philosopher Looks at Political Crisis, Simon & Schuster, New York 2018, p  118

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sense Accordingly, this Chapter aims to shed light upon three particular dimensions of crisis and injustice First, I try to conceptualize the meaning of crisis in its connection with the nature of law Second, I explain the positive character of crisis connecting with justice Finally, by insisting on the relationship between critique and crisis, I claim that this relationship will help us to grasp the origin or nature of law II. Giotto’s “The Arena Chapel in Padua” or Crisis as a Climate of Injustice Shklar discusses the Arena Chapel in Padua in a book that references Giotto’s frescoes in its title, “The Faces of Injustice ” According to Shklar, “the face of Giotto’s Injustice is cold and cruel, with small, fanglike teeth at the sides of the mouth He wears a judge’s or ruler’s cap, but it is turned backward and in his hand is a nasty pruning hook, not a scepter or miter As he has sown, no doubt so shall he reap, for some of the trees that surround him are rooted in the soil beneath his feet where crime flourishes ”18 Injustices in times of crisis run even deeper than Giotto imagines In crisis, the climate of injustice dominates and there is no place for hope The injustice is structural and is characterized not only by unjust rules and morally wrongful acts, but also by unjust legal systems To grasp this situation, we should consider the meaning of crisis A Crisis as a Climate of Injustice In his “The Crisis of European Sciences and Transcendental Phenomenology”, Edmund Husserl states that a proper understanding of crisis demands historical understandings He therefore calls for a return to the origin of the sciences Similarly, in order to understand the nature of law, we should investigate law in times of crisis, and its role in law’s origins In times of crisis, law loses the ability to provide an orientation for human activity, because it loses touch with its human foundation Crisis is connected with an understanding of the world The Greek word krisis means a moment of separation, a cutting, or a dividing 19 Husserl also defines crisis as a moment of separation This separation implies loss of unity, a movement away from original unity According to Husserl, crisis is either the breakdown, or threatened breakdown, of the normative function of reason 20 This meaning of crisis suggests an exceptional situation or an extra-ordinary situation When Adorno asks, “Can one live 18 19 20

Shklar, p  46 R Philip Buckley, Husserl, Heidegger and the Crisis of Philosophical Responsibility, Springer 1992, p  9 James Dodd, Crisis and Reflection: An Essay on Husserl’s Crisis of the European Sciences, Kluwer, New York 2005, p  46

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after Auschwitz?”, we regard Auschwitz as an extra-ordinary situation We can also link this meaning of crisis to the context of law Crisis favors the arbitrary decisions of a state actor, provoking conflict, or threatening existing norms Thus, we can describe crisis as a climate of injustice, as a moment of separation, a movement away from origin of the law Within the conditions of the crisis, one can hardly find the right ways to behave Circumstances make it impossible to know or to feel that one is doing wrong Moving with Husserl, we may say that forgetfulness characterizes this climate It is time, therefore, to explain Husserl’s concept of forgetfulness B Forgetfulness Forgetfulness characterizes crisis: “forgetting captures well the sense of separation and movement away from an origin which lies the heart of the various crises” 21 According to Husserl, forgetting is an experience that captures both the sense of separation and movement away from the origin characterizing a crisis 22 Husserl’s explanation of forgetting is connected with his concept of life-world In this manner, “forgetfulness was expressed as the forgetfulness of the ‘lifeworld, constituting a crisis in the developmental integrity of reason and the realization of humanity”23 In the rise of German National Socialism, Husserl, an ethnic Jew living in Hitler’s Germany, saw the immediate effects of that forgetting 24 Similarly, in our age, the evil effects of this forgetting are all too apparent, and it causes the loss of law In that sense, the law tends to forget that it is for human beings Husserl notes that “in so far as the intuitive world, purely subjective as it is, is forgotten in the scientific thematic, the working subject is also forgotten, and the scientist is not studied ”25 Similarly, it is possible to say that in law, the working subject is forgotten, and legal philosophers and lawyers are not studied Thus, in this context, forgetting means to forget that law is for human beings, which is why we need human rights For Husserl, one form of forgetfulness is for philosophy to abandon its essentially critical character, to forget its essential task of free inquiry.26 Similarly, one form of forgetfulness is for law to abandon its essential connection with human justice

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Buckley, p  80 Buckley, p  xix Anthony, J Steinbock, “The Problem of Forgetfulness in Michel Henry”, Continental Philosophy Review, 32 (1999), p  271 Erazim Kohák, Jan Patočka: Philosophy and Selected Writings, The University of Chicago Press, Chicago 1989, p  24 Edmund Husserl, Phenomenology and the Crisis of Philosophy: Philosophy as Rigorous Science and Philosophy and the Crisis of European Man, Trans Quentin Lauer, Harper Torchbooks, New York 1965, p  186 Buckley, p  81

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C Fear The origin of law reflects humanity, especially human rights Therefore, injustices in crisis times show us the origin of law in the basic needs of humanity In this way, we can see the relationship between crisis and the nature of law Crisis implies the loss of law, a movement away from original unity Injustice characterizes this moment, and we can see features of the origin or nature of law in this perception Giotto’s Injustice manifests this truth But there are many obstacles which cause forgetting, such as prejudices, biases, and ideologies They make it also hard to see Giotto’s Injustice Although there are many causes blocking our view of injustice, the most important one is fear One reason for this is oppression Sally Haslanger identifies two kinds of oppression One kind of oppression concerns cases of agent oppression, which are acts of wrongdoing by an agent: if oppression of this kind occurs then a person or persons (the oppressor(s)) inflicts harm upon another (the oppressed) wrongfully or unjustly 27 In times of crisis, one often encounters agent oppression, since it is more easy to use power arbitrarily and abusively during these times Furthermore, it is also possible to say that this kind of oppression connects with structural oppression According to Haslanger, a case of structural oppression “is not an individual wrong but a social/ political wrong; that is, it is a problem lying in our collective arrangements, an injustice in our practices or institutions Consider tyranny Tyranny is wrong not because (or not just because) tyrants are immoral people intentionally causing harm to others, but because a tyrannical governmental structure is unjust ”28 Given this, we can say that since governmental structure is unjust in times of crisis, and law is part of government structure, the law is also unjust This kind of oppression yields fear This fear in turn blinds people to injustice In the state of siege, fear starts to affect everyone, since people are dying and under threat of famine and disease “Some pray God to save them, some try to save themselves by escaping or by isolating themselves, some others expect the authorities to save them, and try to help these authorities by informing them of sick people in neighboring houses ”29 Fear defeats all concern or interest in others We live in an age, not only of oppression, but of ignorance and superstition Both of them feed fear Taking our cue from Nussbaum, we can say that it is easier for all the mechanisms of fear to operate in a distorting way in these conditions Nussbaum identifies this as a climate of fear This climate prevents people, especially in the courts, from seeing injustice Nussbaum observes: “fear has a way of running ahead of careful thought It’s that stampede to hasty action, prompted by insecurity, that I view with 27 28 29

Sally Haslanger, Resisting Reality: Social Construction and Social Critique, Oxford University Press, Oxford 2012, p  327 Haslanger, p  327 Kuçuradi, p  395

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great skepticism Fear of that sort undermines fraternity, poisons cooperation, and makes us do things we’re deeply ashamed of later ”30 The problem is connected with the sort of fear that causes forgetfulness; fears that are irrational and harmful, producing a climate of mistrust that threatens to disable cherished democratic values 31 Infected by this kind of fear, the sense of injustice turns toxic and threatening Nussbaum rightly points out that forgetfulness, infused by fear, becomes toxic 32 Fear does involve forgetfulness In this respect, I consider fear has a social aspect Fear prevents caring about others As Nussbaum says, “An infant’s fear is entirely focused on its own body Even when, later on, we become capable of concern for others, fear often drives that concern away, returning us to infantile solipsism ”33 Since fear feeds forgetting, it brings out the passivity that underlies the process of crisis In that process, action is also forgotten Forgetting seems to be something that exceeds our power, that comes from the outside, that is a loss of self, even a loss of self-control 34 Under the climate of fear, Nussbaum notes that “citizens may become indifferent to truth and prefer the comfort of an insulating peer group who repeat one another’s falsehoods They may become afraid of speaking out, preferring the comfort of a leader who gives them a womblike feeling of safety And they may become aggressive against others, blaming them for the pain of fear To this fear-blame dynamic we now turn ”35 In the context of crisis, since fear is more prevalent, citizens may become indifferent to injustices They may lose their sense of injustice To summarize, it is possible to define crisis as a movement away from the origin of law, because of the climate of injustice in which the climate of fear dominates III. Giotto’s “The Arena Chapel in Padua” or Justice Towards Crisis Giotto not only offered a special interpretation of injustice, he also interpreted justice “Both depict their subjects in human form La Giustízía is a cruel prince, surrounded by vividly drawn human beings in acts of dramatic injustice to which he is coldly obvious La Giustízía is a sweet maternal queen, clear-eyed and open-armed, sending her emissaries to do the work of justice, presiding over a happy and well-ordered society ”36 One of the results of La Giustízía’s rule is that men and women enjoy dancing at her feet

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Nussbaum, p  37 Nussbaum, p  116 Nussbaum, p  52 Nussbaum, 2018, p  75 Buckley, pp  83–84 Nussbaum, 2018, p  136 Judith Shklar, “The Faces of Injustice”, Political Theory, Vol  19 August 1991, p  453

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As we turn from the image of Injustice to that of Justice, we start to regard the positive character of crisis In that point, we need to ask whether La Giustízía actually represents justice A Crisis as a Positive Outlook One can define crisis positively According to this definition, crisis “seems to refer to a passing moment of tension, a time of decision-making, a temporary stage of uncertainty soon to be resolved The outcome of this decision-making determines the future, and thus crises can be seen in a positive light, as part of process, as the time of production a new meaning and significance ”37 Aristotle helps explain this positive meaning of crisis Aristotle uses this notion regarding the issue of political choice where it has taken on double meaning “For Aristotle political crisis is not just one concern or situation among others but is an involvement that defines citizenship as such Thus, presumably, for Aristotle the citizen is not only defined as the one who has the function of making decisions, but also as the one who is concerned with whatever question or conflict requires the polis to make a decision That is, the citizen is the one for whom it is necessary that a decision be made, just as much as it is the citizen who makes the decision ”38 This meaning of the crisis may also emerge in the alternative reading of Husserl According to this interpretation, “the philosopher looks more like Aristotle’s citizen, who addresses what is at stake, thus who decides, but who also has a stake in the crisis; and where it is from the perspective of the latter that the possibility of the former must be identified ”39 The key point here is that instead of forgetting, aspiration characterizes the crisis In other words, forgetting gives away to aspiration “True forgetting means to be unaware of what was forgotten, that is, not to have it in mind Paradoxically enough, as soon as one says that ‘something’ is forgotten, one is on the road to remembering ”40 On this road, the process of the recovery of the origin of law starts with aspiration Aspiration involves a desire for a just legal order, combined with an assessment that this outcome is likely and an evaluation of it as something to be desired and worthy of pursuit It can energize action toward the valuable goal Nussbaum says that “it’s hard to sustain commitment to a difficult struggle without such energizing thoughts and feelings ”41 Without aspiration, in a time of crisis, it is difficult to energize feelings and

37 38 39 40 41

Buckley, p  xvi Dodd, p  45 Dodd, p  48 Buckley, p  83 Nussbaum, pp  408–409

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thoughts about justice We need to embrace aspiration for better times Aspiration is crucial to the energetic pursuit of a difficult goal B Aspiration Aspiration, like forgetting, is an experience; through its reflection, the nature of law is restored Aspiration connects with remembering Thus, crisis is a situation in which there is lack of desire to remember and no recognition of the need to go back to the origin, simply because it is thought that there is nothing to remember In these times, there is a tendency to forget the origin and functioning of law 42 In times of crisis, there is also a desire to remember and feel of the need to go back to the origin This desire involves positive thinking even in times of crisis It may be useful to move past the meaning of forgetting and explain how it is possible to remember even in the midst of crisis Husserl’s philosophy of crisis helps us to describe this situation “Husserl’s crisis requires a certain amount of forgetting, a degree of loss, but it is never a total loss As negative as Husserl’s description of the crisis may sound, it is always conducted within the framework of a potential overcoming of the crisis, in the belief that there is a way out, that through questioning-back, the [temporarily!] forgotten original meanings can be recovered Husserl’s philosophy of the crisis begins to appear paradoxical: the crisis is possible only on the basis of forgetting, but in order to philosophize about the crisis, philosophy must deny the possibility of a total forgetting ”43 Similarly, remembering the origin of law requires us to deny the possibility of totally forgetting law’s origin To overcome the crisis requires embracing the positive character of crisis, paradoxical as this may seem In this context, it is possible to say that remembering yields aspiration This raises the question: “aspiration to what?” The aspiration is to connect with humanity Since I proceed from a non-ideal theory of justice, I do not characterize aspiration as an ideal Thus, Giotto’s justice does not do enough to explain this aspiration Shklar rightly states that Giotto’s two pictures are not opposites of one another She observes that “we can certainly feel afraid of Injustice, but Justice radiates no emotional appeal ”44 Even if we give place to aspiration instead of fear, La Giustízía’s rule does not imply this aspiration Giustízía’s rule may prevent some injustices, but that is not enough Giustízía’s averts our fears without advancing our aspirations; we need more Aspiration is a desire to improve the human condition This does not mean that people who aspire are more connected with the ideal But it does mean that they retain

42 43 44

Buckley, p  83 Buckley, pp  86–87 Shklar, p  103

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a connection with the origins of law They remember law’s origins Aspiration arises from the memory of conquering injustice or wishing to do so C Memory We need memories Memories are integral to humanity Memory takes place when the act of remembering starts Husserl states that memory is connected with forgetting: “One could say that for memory to take place, some sort of forgetting is necessary In order to re-present something, what was present must be lost as a present, retained as a past, and brought back again by a present act of remembering While some sort of memory is the pre-condition for the possibility of overcoming the crisis of forgetting, forgetting is itself the precondition for there being memory Forgetting appears in this light not only as necessary for memory, but as having a certain felicity It has been stated above that it is memory that gives us access to the breadth of our lives, but it could just as easily be said that it is forgetting which makes such breadth possible ”45 Husserl also explains that memory connects with the present “It is a bringing together of a present act (the recollection) with a past act (the former seeing or hearing) However, it is not a complete merging of the two acts; otherwise there would be no distinction between the remembering and what is remembered ”46 Memory helps us to reconsider the past In the process of recovery, we face the past We also need the past in that process Derrida says that to learn to live, we need the ghosts 47 To discover the origin of law, we need the ghost of injustices and justice We know from the whole history of the 20th Century that silenced groups face many injustices and that it is harder to hear their voices in crisis times than in normal times 48 What we should remember regarding these groups is the injustices that they faced in the past and continue to face in the present We also know from the past that those with legal authority have been the source of many injustices, from a variety of motives Justice must include the past as well as to the future And remembering must also include re45 46 47 48

Buckley, pp  86–87 Buckley, p  86 Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning and the New International, Trans Peggy Kamuf, Routledge, New York 1994, pp  xvii–xviii Regarding the injustice against silenced groups, it is possible to use Ackerly’s hardest cases which are known through the inquiry and awareness Ackerly says that “in the Hardest Cases the fact of the harm is itself invisible The Hardest Cases may require inquiry in order to understand the injustice of the harms, even if the fact of those harms is visible … Some, like genocide, require political movement for awareness Others, like gender injustice and climate justice, are a function of complex macro- and micro-processes that function in concert to render the injustice itself invisible (Though the harm maybe visible to those who suffer it, the fact that the harm is an injustice or the nature of that may not be ) The Hardest Cases are difficult to observe and comprehend precisely because they affect particular populations in particular ways ” Ackerly, pp  30–31

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membering this responsibility to those who went before We should be aware of what the past teaches us regarding injustices According to Ackerly, acting responsibly in the present means trying to become aware of injustices 49 We need an awareness of that which we once could not see in order to know injustice We need the kind of memory that pays attention not only to visible injustice, but also to the injustices that crisis makes invisible In other words, memory bears responsibility against injustices – the responsibility to see and know them in the past and the present 50 Memory should recall oppressed groups’ struggles against injustice and memory includes the responsibility to recognize their unjust subordination We should aware that the problem comes from the past and persists even more acutely in times of crisis Since crisis represses the problem and causes the forgetting of silenced groups, it is vital for memory to address this problem In this way, memory can help us to see the injustices happening around us We should remember the harm and oppression that occurred through law We must remember the past to meet the needs of the present We must apply “memory to help notice when law goes wrong, and [when] injustice follows ”51 In this regard, it is also possible to use the law as a way to see injustice In the introduction to “History, Memory and the Law”, Austin Sarat and Thomas Kearns contemplate how law treats history and how history appears in legal decisions 52 They consider law as a means of preserving memory It is possible for law to serve as a means of remembering We can use court cases for the materialization of memory 53 Re-reading these cases, it is possible to see their injustices For example, we can see sex discrimina49 50

51 52 53

Ackerly, p  32 In that point, it is important to determine what kind of memory we need To state this point, it may help us Swetlena Boym’s distinction between restorative nostalgia and reflective nostalgia Since reflection can provide new flexibilities, we should consider reflective nostalgia regarding memory Boym says that “restorative nostalgia stresses nostos and attempts a transhistorical reconstruction of the lost home Reflective nostalgia thrives in algia, the longing itself, and delays the homecoming-wistfully, ironically, desperately Restorative nostalgia does not think of itself as nostalgia, but rather as truth and tradition Reflective nostalgia dwells on the ambivalences of “human longing and belonging and does not shy away from the contradictions of modernity Restorative nostalgia protects the absolute truth, while reflective nostalgia calls it into doubt Restorative nostalgia is at the core of recent national and religious revivals; it knows two main plots the return to origins and the conspiracy Reflective nostalgia does not follow a single plot but explores ways of inhabiting many places at once and imagining different time zones; it loves details, not symbols At best, reflective nostalgia can present an ethical and creative challenge, not merely a pretext for midnight melancholias This typology of nostalgia allows us to distinguish between national memory that is based on a single plot of national identity, and social memory, which consists of collective frameworks that mark but do not define the individual memory ” Svetlana Boym, The Future of Nostalgia, Basic Books, New York 2001, pp  30–31 Marett Leiboff, “Memory and Nostalgia in Law”, https://www unilu ch/fileadmin/fakultaeten/ rf/institute/lucernaiuris/dok/Flyer_Leiboff pdf (1 10 2018) A Sarat & T R Kearns, “Writing History and Registering Memory in Legal Decisions and Legal Practices: Introduction”, History, Memory, and the Law, (Eds A Sarat & T R Kearns), University of Michigan Press, Michigan 2005, p  4 Sarat-Kearns, p  13

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tion and other gender issues in court cases We need this kind of memory, which is fed by the aspiration to learn about and act against injustices This then is the positive character of crisis Crisis represents a necessary step in the movement to grasp something as something To overcome a crisis, we need to embrace the positive character of the crisis According to Husserl, “the overcoming of the crisis will then be expressed as having the shape of a re-establishment of the origin, as a recapturing of what was, a restoration of what had been ”54 The problem to be overcome in achieving this re-establishment of the origin arises in explaining the movement from forgetfulness to aspiration, which solidifies as memory As I stated before, in times of crisis, it is hard to see injustices Shklar says that “injustice is better understood first on its own terms: as a palpable, familiar aspect of the human condition ”55 But if the human condition is forgotten, or if people do not think about their own conditions, injustice remains hidden This means that unless human beings are subjected to critique, which makes it possible to see injustice, we cannot move beyond forgetfulness We shall come back to this in the final section of this paper, where we shall discuss the role of critique IV. Critique: From Injustice to Justice Overcoming fear is not easy and in crisis times, it seems very hard When someone who is aware of her or his fears considers them carefully, she or he can move out of forgetfulness towards aspiration Consider this passage: There is no choice, apparently, for the people of Cadix: they have either to die or to submit to the increasing pressure of the Plague Fear keeps increasing and dominates everybody Confronted with this situation, Diego is led, step by step, to a new awareness In spite of the Plague’s endeavour to impose the feeling of guilt to the people of Cadix, Diego makes them conscious of his and their innocence He cries out his fear This crying out marks the beginning of an effort to overcome it This same consciousness of innocence will also lead Diego to revolt, to challenge the Plague It is during this fight that he, with Victoria’s assistance, will realise his strength – the strength of Man – with which, when aware of it, one can defeat the Plague 56

This situation helps us to understand how fear can change its character through the positive impact of a crisis There can be a process of overcoming fear Ioanna Kuçuradi regards Diego’s position and explains the process of gradually overcoming his fear and of deepening awareness Diego is able to fight the plague because his fear arouses his 54 55 56

Buckley, p  xix Shklar, p  454 Kuçuradi, p  396

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“consciousness of the strength of Man, which is in himself ”57 The process of awareness causes the overcoming of fear But this does not mean that all fear is gone When Diego feels strength to fight against Plague, this strength includes both fear and courage 58 Critique is explained according to philosophy, but it is also explained in a way which exceeds the borders of philosophy A certain critical thought is necessary to grasp the nature or origin of the law Following Judith Butler, I maintain that critique does not supply the grounds for making a decision in any particular legal case, but without critique, there can be no robust debate on the issues raised by the origin of law 59 In this respect, critique is essential to grasp something as itself, in its genuine sense: “an emphasis not only on the theme of sense or meaning, but above all on the place and importance of the experience of the insight in which we grasp something as ‘itself, in its ‘genuine sense ’”60 A person who attends to critique can understand why Giotto’s justice does not see all that is unjust Crisis must be used to overcome crisis, which means a separation from its own origin or essence In this meaning of the crisis, the critic is not involved 61 But, there is a relationship between the positive character of the crisis and the critic: “critique itself … would be possible only for one who has taken responsibility for what has been uncovered in reflection, which means being in a grip of a crisis ”62 In times of crisis, to grasp the origin of the law, one should be aware of those structures that produce injustice, since the law also becomes part of those structures The law itself seems to be an example of structural injustice in times of crisis To see this injustice is to engage with the critique, which is part of the non-ideal theory of justice Then, we can grasp the nature of the law In this way, aspiration becomes real Without critique, we cannot explain aspiration, which is connected to the positive character of crisis In other words, if we cannot critique, if we only accept Giotto’s justice and do not want more – since we really do not know what we want Conclusion … humanity has never been a finished product, nor will it be, nor can it ever repeat itself 63

Law in times of crisis loses its connection with human values Law must remain connected with its origins, to face the pervasive injustice of crisis situations Only then 57 58 59 60 61 62 63

Kuçuradi, p  399 Kuçuradi, p  397 Judith Butler, “Critique, Dissent, Disciplinarity”, Critical Inquiry 35 (Summer 2009) pp 775–776 Dodd, p  3 Dodd, p  46 Dodd, p  48 Husserl, p  158

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can law face the forces that threaten the existence of humanity itself The question is how it is possible to retain connection to the origin of law, when law itself becomes the vehicle of oppression Law does nothing by itself For this reason, we need to recall the origin of the law and preserve the outlook of law, which necessarily includes features that look back to law’s origins To grasp these origins, we need non-ideal theory of justice which includes law’s recognition of injustice, and aspiration to mitigate its harm Thus, we see that the origin of the law can be apprehended best in times of crisis In these times, we “must return” to the things themselves, which is not only an epistemic problem but an ethical one as well Shklar observes that “no theory of either justice or injustice can be complete if it does not take account of the subjective sense of injustice and the sentiments that make us cry out for revenge ”64 Similarly, if we search the origin or nature of law, we should reason from injustice, especially structural injustice Giotto’s Injustice and Justice also reflect structural injustice For this reason, our apprehension of law’s origins in times of crisis arises from the impulse of injustice But, since the climate of injustice dominates in the face of crisis, it is hard to see injustices Such is the tragedy of law To move on from injustice in times of crisis or to respond to the injustice of law, we need critique and aspiration, which help us to capture the origin of law Some underlying law remains to which we can aspire If we do so, the forgetfulness that characterizes times of crisis can develop into aspiration, both in moral philosophy and in the discursive practices of law Husserl believed that “the crisis of European existence can end in only one of two ways: in the ruin of a Europe alienated from its rational sense of life, fallen into a barbarian hatred of spirit; or in the rebirth of Europe from the spirit of philosophy, through a heroism of reason that will definitively overcome naturalism ”65 Adorno wondered “why humanity, instead of entering a truly human state, is sinking into a new kind of barbarism ”66 These thoughts apply just as well to the crisis that we face today Like Husserl, we should try to regard the present crisis as the moment for decision, a time to make the right decision, a time to rectify the errors of the past and recollect the unity and harmony that preceded the existence of legal rules 67 The manifest injustices of today’s crisis may drive us towards better law, by forging the aspiration which keeps us moving forward in an imperfect world

64 65 66 67

Shklar, p  49 Husserl, p  192 Theodor W Adorno, Can One Live After Auschwitz?: A Philosophical Reader, (Ed Rolf Tiedemann), Stanford University Press, Stanford 2003, p  xii See Buckley, p  xvi

Constitutionalism and the Idea of Law Matthias Mahlmann* 1. The point of Constitutionalism Constitutionalism is a revolutionary theory This is so in more than one sense Constitutionalism is at the heart of the ideas that led to the great revolutions of the 18th Century It is a central element of the development in our shared political history that made these ideas into powerful political forces and into part of the intellectual armor used on revolutionary barricades It changed the normative parameters of human social and political life After the ascent of constitutionalism, human life in society could not be conceptualized in the same way it had been before Hegel famously criticized the French revolutionaries for wrongly thinking that one can create a social order on the basis of subjective thought – the mere opinion of ephemeral individuals – and not on objective truth 1 Instead, Hegel argued, constitutions are the product of wider social movements and of the historical developments beyond the influence and grasp of individuals2 unable to fathom the ways of cunning Reason 3 The object of this famous and influential critique is, contrary to what Hegel thought, perhaps the main virtue of constitutionalism – the principled creation of a body politik Constitutionalism attempts to draw the lines of a legitimate political and legal order based on human understanding and the justified normative principles it identifies, not on the power of tradition or of given social authorities This is something that Hegel himself admired in other remarks he made, such as when he celebrated the

* 1 2 3

Professor of the Philosophy of Law, the Sociology of Law, and Public International Law at the University of Zurich G W F Hegel, Grundlinien der Philosophie des Rechts, in: id , Werke 7, E Moldenhauer  / K M  Michel (eds ), 1986, § 258 G W F Hegel, Grundlinien der Philosophie des Rechts, §§ 273 ff G W F Hegel, Enzyklopädie der philosophischen Wissenschaften, id , Werke 8, E Moldenhauer / K M Michel (eds ), 1986, § 209

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French Revolution as a “magnificent dawn” because it attempted something without precedent in world history: making thought the basis for the construction of reality 4 Of course, the French Revolution was not always well advised and successful, far from it La terreur taught many cruel lessons But the constitutional idea formulated a necessary criterion for any justified social order, namely, to stand the test of critical reflection by the subjects of any government, the citizens of that order Constitutionalism vindicates the possibility that everyone can be an author of the basic normative order of society It empowers people and denies that the determination of the form of government is the prerogative of a limited group of people or should be left to obscure forces of history It is a piece of political humanism because it elevates human beings to the center stage of the drama of shaping the political life of a community What is the core content of this remarkable idea? What is the reason for its attraction? After all, it has influenced world history as not many other ideas have done What is it that makes it a revolutionary idea? What is the moving cause of this particular dimension of its history, to be found not only in the 18th century but also in our time? These are the questions to be answered in this Chapter Constitutionalism has risen to power and influence in the framework of what is called the epoch of modernity This is not an accident At least it seems that there is an inner connection between constitutionalism and modernity Constitutionalism even appears to be an important element of the makeup of the modern age It is a decisive element of the modern political order breaking away from the traditional forms of government, creating a system of government based on the autonomous decisions of human beings and thus of modern conceptions of politics and the creation of law Is this a correct understanding? In light of the critique of modernity and of what has come to be regarded its central tenets, can this link between constitutionalism and modernity be maintained? If this link exists, is the connection between constitutionalism and modernity something that speaks not for but against the project of constitutionalism because of the dialectic of modernity, in which – as many argue – many destructive forces have been unleashed?5 These are not only theoretically interesting, but are also politically relevant questions Constitutionalism has seen an increase in its influence over the last 200 years It started to shape history concretely in the revolutions of the 18th century To be sure, these were already very complex processes to begin with, that are not just the pure and noble embodiment of the constitutional idea What followed was an arduous and

4

5

G W F Hegel, Vorlesungen über die Philosophie der Geschichte, in: id , Werke 12, E Moldenhauer / K M Michel (eds ), 1986, p  529 This lead Marx to his remark that one has to turn philosophy from head to foot – though it is not clear that he himself was engaged in something else than the construction of a better reality with the means of thought Cf e g M Horkheimer / T W Adorno, Die Dialektik der Aufklärung, in: T W Adorno, Gesammelte Schriften Bd 3, R Tiedemann (ed ), 1997

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often tragic historical path The last 200 years saw not only the establishment of constitutional orders, but the rise of dictatorships and other forms of authoritarian regimes, sometimes short-lived, sometimes with long-lasting rule After 1945, and the latest paroxysm of such dictatorship in National Socialism, the constitutional idea gained considerable traction In 1989, the strongholds of authoritarian rule in state socialist societies fell; the constitutional idea got another boost by this historical development, and turned many states in the world into, at least nominally, constitutional orders It even seemed that 1989 signaled the beginning of the age of the ultimate victory of constitutionalism Today the situation seems to have changed There are other indicators of a deep crisis of constitutionalism Given this state of affairs, there are not only theoretical but political reasons to rethink and critically investigate the central elements of the project of constitutionalism The following remarks are intended to contribute to this reflection by discussing three questions: First, what is constitutionalism? Second, what is the relationship between constitutionalism and modernity? And third, what future is there for the constitutional idea – if there is one? 2. What is Constitutionalism? a) What is a constitution? Today, most states of the world are ostensibly governed by a constitution That does not mean, however, that in actual practice these constitutions are instruments that have a decisive influence on the political life of these communities Constitutional window-dressing is after all a seasoned practice of political forces The fact, however, that so many states feel the need to have a constitution underlines how influential the idea has become The concept of a constitution has been interpreted in many ways It can describe a factual state of affairs in a given community or even some kind of hypothesized deeper existential decision about the normative core elements of a political community, transcending the text of the written constitution 6 A good starting point for coming to grips with the idea of a constitution is to look to the standard use of the term, in which it is meant to define the basic normatively prescribed structure of a political order, its fundamental legal and political architecture 7

6 7

As influentially Carl Schmitt, Verfassungslehre, Duncker & Humblot, 1928, argued András Sajó / Renáta Uitz, The Constitution of Freedom, 2017: “Constitutionalism stands for a set of interrelated concepts, principles, and practices of organizing and thereby limiting government power in order to prevent despotism It suggests that power may be limited by techniques of separation of powers, checks and balances, and the protection of fundamental rights along a pre-commitment It seeks to provide adequate institutional design in a legally binding instrument (the

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The concept of a constitution is sometimes linked to modern statehood, sometimes used in a wider sense for pre-modern societies and political structures 8 If one wants to develop some kind of useful working definition of a constitution, it is helpful to look at the paradigmatic examples of the constitutional revolutions of the 18th century and the normative ends these documents were intended to serve Given this starting point, one can outline a kind of ideal type concretization of the meaning of the concept of a constitution that comprises the following elements: i) The creation of public authority First, a constitution is the originating creation, definition, organization and limitation of public monopolized power by the means of law based on an autonomous decision of the political subjects voluntarily associated under the newly established constitutional rule 9 Other sources of power of a historically contingent nature, like the victorious use of violence in the past, establishing and maintaining a certain kind of rule by a particular person or a specific group of persons, is substituted by a public authority, legitimized because of the political exercise of public sovereignty of the pouvoir constituant:10 “A constitution is not the act of a government, but of a people constituting a government A government without a constitution is power without a right ”11 Constitutions are thus the embodiment of the claims to political autonomy of freely associated citizens, asserting that all human beings cannot legitimately be subjected to rules that are not created by the citizens themselves ii) The domestication of power Second, constitutions bind public power and leave no prerogatives of power beyond the limits set by the law 12 The point is to assure that any use of public power is based and limited by legal rules Today, constitutions are usually written law, in a single document or in the form of a number of legal enactments, like the bloc de constitutionalité

8 9 10 11 12

constitution), constitutionalism provides the necessary limitations of government (sovereign) power and affirms the legitimate exercise thereof ” Chris Thornhill, Sociology of Constitutions: Constitutions and State Legitimacy in HistoricalSociological Perspective, Cambridge University Press, 2011, p  10 et seqq Cf D Grimm, Types of Constitutions, in: M Rosenfeld and A Sajó (eds ), The Oxford Handbook of Comparative Constitutional Law, p  103 Cf E -J Sieyès, Qu’est-ce que le Tiers État, Chap V, p  53 Thomas Paine, Rights of Man, Chap 4 Cf D Grimm, Types of Constitutions, in: M Rosenfeld and A Sajó (eds ), The Oxford Handbook of Comparative Constitutional Law, p  103

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in France, but constitutions can, of course, be unwritten, as in the classical example of the United Kingdom 13 iii) Democracy A formal concept of a constitution can include legal provisions that protect oligarchic structures or rationalize the functioning of a dictatorship In this particular sense, one can talk about e g a Fascist constitution or an Apartheid constitution It should be noted, however, that such orders are not realizing the very point of a constitution 14 There is more than a contingent connection between constitutionalism and democracy Constitutions, as explained, are central political tools to protect the autonomy of human beings by defining and limiting the powers of government by a particular set of mandatory rules Democracy in turn is the expression of the same political aim, namely, to protect and bring to life human autonomy within the political sphere The core normative purpose of constitutions is thus only achievable within democratic structures In the course of the historical development of the contemporary role constitutions now play in the political life of domestic societies, there were intermediate steps, like constitutional monarchies These steps were based on political compromises of democratic forces and the power centers of the old monarchic orders That these intermediary steps existed does not mean, however, that the full realization of the constitutional idea can be realized in a different form than a democracy Based on this, we can identify a third defining element of constitutions: they provide the high road toward the democratic use of political power This is achieved through the creation of the constitution by democratic means, the exercise of popular sovereignty and through the use of democratic mechanisms of political decision-making that are created by the normative order of the constitution iv) The law of law-making Fourth, a constitution defines and limits the possibilities of creating valid new law 15 If one disregards public international law, a constitution is clearly the highest law of the land Given the impact of international law on many legal systems in the world, it is not

13 14 15

Cf A V Dicey, An Introduction to the Study of the Law of the Constitution, 8th edn, Macmillan, 1915 Cf D Grimm, Types of Constitutions, in: M Rosenfeld and A Sajó (eds ), The Oxford Handbook of Comparative Constitutional Law, p  115 Cf D Grimm, Types of Constitutions, in: M Rosenfeld and A Sajó (eds ), The Oxford Handbook of Comparative Constitutional Law, p  103

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surprising that a substantial and controversial debate about the constitutional character of some parts of public international law or regional international organizations, like the EU and its law, is occupying many minds (We will return to this topic ) There are differentiated mechanisms developed by constitutional theory to protect this elevated role of the constitution, not the least of which includes constitutional review by sometimes very powerful courts v) The constitution of rights As indicated, there is a necessary material substantive normative content implied by the aims of constitutionalism Part of these aims is enabling democratic rule, but that is not all Other implied aspects of the substantive normative content of the idea of constitutionalism are human and fundamental rights Nonetheless, there are constitutional orders that deny such rights, at least to certain groups Furthermore, there may be interpretations of constitutional orders that lead to this state of affairs A classic example for such an understanding of constitutional norms is the interpretation of the American Constitution that entrenched racial segregation, for example based on the principle of separate but equal 16 But like constitutional monarchies, such political orders or interpretations of a constitution are not in harmony with the basic aims of constitutionalism The idea of constitutionalism is to secure the rights of persons living together in a political community, their dignity, liberty and equality through a legal order that is the product of their own decision-making as part of the pouvoir constituant Constitutions intend to limit public power to secure the rights of persons The very point of constitutionalism is, therefore, the protection of human and fundamental rights The idea of constitutionalism implies that a constitution is a constitution of rights Fifth, thus, constitutions are legal instruments used to create a material normative order protecting freedom, autonomy and the equal status of human beings as subjects of their life This is, however, not all that can be said about the normative implication of the idea of constitutionalism Not accidentally, the normative program of constitutional rule has increasingly been enriched, importantly by social rights, at least understood as aims of state action and environmental concern This concern for the material living conditions of persons found in a commitment to social rights, is not surprising because it mirrors the concern for the protection of the rights and well-being of the individual persons, and such protection is at the heart of the constitutional project

16

Plessy v Ferguson, 163 U S 537 (1896)

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The connection between the idea of constitutionalism and environmental issues may seem more tenuous Given that environmental law is not necessarily conceptualized on anthropocentric grounds, the constitutional project’s stress on the importance of human beings’ rights does not fully account for this development Nonetheless, nascent environmental constitutionalism is evidence of the legitimate broadening of constitutional concerns, including other ethical and prudential considerations, beyond respect for human beings vi) The inner-worldliness of constitutions Given that constitutions are to be universal orders, acceptable in principle for all citizens, the constitutional legitimation cannot be tied to some particular religious outlook Such religious outlooks may, as a most welcome matter of fact, enforce the idea of constitutionalism, but constitutionalism is not, as far as legitimation is concerned, dependent on such religious creeds This leads to the sixth element, that the constitutional state is a product of a central project of modernity, the justification of basic ethical and legal concepts by secular means 17 As indicated, this does not necessarily imply an anti-religious point of view18 or mean that religions cannot play an important role in legal orders On the contrary, a constitutional order is often very much strengthened by religious arguments in its favor, for example, based on the importance, from a religious perspective, of protecting

17

18

Cf the paradigmatic formulation in Immanuel Kant, Religion innerhalb der Grenzen der bloßen Vernunft, Akademie Ausgabe, Bd VI, 1913, p  3: “Die Moral, so fern sie auf dem Begriffe des Menschen als eines freien, eben darum aber auch sich selbst durch seine Vernunft an unbedingte Gesetze bindenden Wesens gegründet ist, bedarf weder der Idee eines anderen Wesens über ihm, um seine Pflicht zu erkennen, noch einer anderen Triebfeder als des Gesetzes selbst, um sie zu beobachten” Translation: I Kant, Religion and Rational Theology, The Cambridge Edition of the Works of Immanuel Kant, translated and edited by Allen W Wood / George di Giovanni, Cambridge University Press, 1996, p  57: “So far as morality is based on the conception of the human being as one who is free but also, just because of that, binds himself through his reason to unconditional laws, it is in need neither of the idea of another being above him in order that he recognize his duty, nor, that he observe it, of an incentive other than the law itself ” A classic example for this is the Etiamsi-Daremus argument of scholastic thought, which Grotius put to use to legitimise natural law without recourse to divine order, at least in principle Cf H  Grotius, In Tres Libros de Iure Belli ac Pacis Prolegomena, in: H Grotius, De Iure Belli ac Pacis Libri Tres, Ed nova, Vol  I, reproduction of the ed of 1646 by J Brown Scott, Carnegie Institution of Washington 1913, Para 11 On the older scholastic tradition, cf G v. Rimini, Gregorii Ariminensis Lectura super primum et secundum Sententiarum, A Damasus Trapp and V Marcolino (eds ), Vol  VI Super secundum Dist 24–44, in: Spätmittelalter und Reformation Texte und Untersuchungen, Bd 11, hrsg v. H A Oberman, de Gruyter 1980, Dist 34–37, q 1 art 2, p 235 Cf the reference to v. Rimini by F Suárez, De Legibus, II 1–12, hrsg v. L Pereña and V Abril, Consejo superior de Investigaciones cientificas 1974, II, VI, 3, p 79 ff

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the freedom and integrity of human persons If important religious powers turn against a constitutional order, this bodes ill for its chances of fulfilling its liberal promise The argument for the inner-worldliness of constitutions has a more modest aim, namely, to underline the fact that secular justifications are sufficient to ground the basic concepts of constitutional orders Constitutions are not meant to be high roads to salvation Constitutional orders are not custodians of religious redemption 19 Constitutionalism is an inner-worldly attempt20 to secure human autonomy vii) The pursuit of the common good Seventh, constitutions create a public power with the (in a certain sense) comprehensive competence to decide about the content of the political order This public power is not limited to certain tasks, like corporations or NGOs are, but is intended to foster the common interest of the community in all its manifestations Such powers are limited by the competences created in a constitution that circumscribe the means of public power to achieve such ends Nevertheless, if it acts, it should not be the servant of particular interests; it should, in principle, serve the common good (as difficult as it may be to determine what that means in concrete cases) 21 That does not entail that this pursuit of a plausibly identified common good is in practice predominantly, or even often, the determining factor of public policies Still, constitutions aim for a better practice than is often witnessed in modern constitutional systems viii) The freedom of politics in the constitutional state Eighth, a constitution creates a normative framework for an open-ended political process This framework assures that this process does not violate important normative principles, in particular, human and fundamental rights Within this framework, however, there is a well-protected, wide and open space for political pluralism Political forces can pursue their respective aims freely and on whatever grounds they choose to take as being decisive This open-endedness of the political process is a central asset of

19 20 21

As the German Constitutional Court, BVerfGE 42, 312 – Inkompatibilität / Kirchliches Amt, formulated, a constitutional state is not “Hüter eines Heilplans”, the guardian of a project of religious deliverance Cf on this matter A Sajó, Preliminaries to a Concept of Constitutional Secularism, Int J Const Law, 6 (2008), 605ff; cf as well Horst Dreier, Staat ohne Gott: Religion in der säkularen Moderne, C H Beck, 2018 For a republican interpretation of notions of the common good in the framework of US-American constitutionalism cf M Sellers, American Republicanism, p  234 ff

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democracies because there are overwhelmingly good reasons to question the political claims of indubitable political truth That, however, does not mean that constitutions (being the very basis of such pluralism) are themselves based on ethical relativism or skepticism On the contrary, constitutionalism implies that the legitimacy of the normative framework, for example, of human and fundamental rights, is well-justified across political party lines In fact, the normative framework is so well-justified that it is legitimate to enforce its demands against dissenters if they cross the lines of the free political process as when they interfere in politics with violence and force ix) Constitutions beyond the state? This kind of ideal-type description helps to understand better the content of the concept of a constitution, though not exhausting the topic Having laid the groundwork for such understanding, one can turn to other controversial issues One such controversy is the question of whether there are international constitutions or a constitution of the international community, or at least a constitution of some regional international organizations, like the Council of Europe or the European Union These questions are pursued with a certain amount of passion 22 There is the danger that these debates turn on the (im)proper use of terminology This is unfortunate because the core issue behind these debates seem to be the normative points just outlined and implied in the concept of a constitution and constitutionalism The substantive question is whether the international order or at least certain regional organizations have reached, or could reach, a level of organization that matches the protection of human autonomy, equality and dignity by state constitutions It is, therefore, not the central question whether one chooses to call the international order or the development of a certain regional international organization already a constitution The core point is to design such orders in a way that they foster these normative aims For example, the international protection of human rights buttressed with an effective system of adjudication has, to a considerable degree, been achieved in the system of the European Council and the European Convention of Human Rights and is therefore a step in the right direction 23 22

23

Cf e g J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law, Oxford University Press 2009; O Diggelmann and T Altwicker, Is There Something Like a Constitution of International Law?, ZaöRV, 68 (2008), 623; A Tschentscher, Verfassung im Völkerrecht – Konstitutionelle Elemente jenseits des Staates?, VVDStRL Bd 75 (2016), p   407 et seqq ; H   Krieger, Verfassung im Völkerrecht – Konstitutionelle Elemente jenseits des Staates?, VVDStRL Bd  75 (2016), p  439 et seqq Cf M Sellers, Parochialism, Cosmopolitanism, and Justice, in: id (ed ), Parochialism, Cosmopolitanism, and the Foundations of International Law, 2012, p  250 ff , 272: “The purpose of internation-

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Another issue is the existence of social constitutions, that is, spontaneous orders that are created by social forces, conceptualized often in the framework of a theory of autopoetic self-creating, self-maintaining social systems 24 Examples of this are supposed to be international economic law or the normative framework of the internet It is argued that the true perspective of constitutionalism is the understanding of heterarchically fragmented social constitutions 25 This kind of approach is embedded in a very long and intense debate about legal pluralism in general 26 There is much debate about these issues 27 Of course one can call a network of social actors and the rules that apply within that network, a constitution, but such networks and their internal rules are not embodiments of the principles outlined at the core of the constitutional project They do not establish well-defined and circumscribed public authority, domesticating power They have no democratic legitimacy, as they are not created by anything resembling democratic procedures There is no continuous democratic influence, at least not necessarily so, on the shape of these particular networks and their internal rules They do not set the normative parameters of valid law making They are not institutionalized and designed to secure human and fundamental rights, but, are instead, the spontaneous product of social interactions with often quite specific aims They are not designed to, or are even capable of, promoting the common good because they are arising in relation to particular issues with which these organizations are concerned They are elements of civil society, not a normative framework enabling a free political process To call such structures constitutions is, therefore, not appropriate It glosses over fundamental differences and may have detrimental normative effects: such social networks may borrow from constitutions in the sense characterized legitimacy and,

24 25 26

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al law has been to extend the community of justice beyond our closest associates to the fellowship of humanity as a whole ” G Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization, Oxford University Press 2012 Ibid These debates have different roots in legal sociology and legal anthropology, among others, cf E Ehrlich, Grundlegung einer Soziologie des Rechts, 4 Aufl , Duncker & Humblot 1989; B Malinowski, Crime and Custom in Savage Society, Rowman & Littlefield Publishers 1985; K N Llevellyn and E A Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence, University of Oklahoma Press; New edition edition 1983; L Pospísil, Anthropologie des Rechts: Recht und Gesellschaft in archaischen und modernen Kulturen, Beck 1982; S E Merry, Legal Pluralism, Law & Society Review 22 (1988), 869; S F Moore, Law as Process: An Anthropological Approach, Lit 2000; B de Sousa Santos, Toward a New Legal Common Sense Law, Globalization and Emancipation, 2nd ed , Butterworths LexisNexis 2002 For an excellent overview and critical assessment cf P Gailhofer, Rechtspluralismus und Rechtsgeltung, Nomos 2016 Cf Klaus Günther, Rechtspluralismus und universaler Code der Legalität: Globalisierung als rechtstheoretisches Problem, in: Klaus Günther / Lutz Wingert (Ed ), Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit: Festschrift für Jürgen Habermas, Frankfurt am Main (Suhrkamp), 2001, pp  539–567

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assuming democratic principles and their roots in human rights count, gain political traction that such social structures do not deserve b) What is Constitutionalism? Constitutionalism is the political theory in support of the legitimacy of the constitutional project As shown, constitutions are an institutional expression of the idea of human rights and democracy Democracy, in turn, depends on the idea of the autonomy and dignity of individual persons Democracy is not granted as an act of grace, rather it is understood to be the birthright of autonomous beings It is a right that is derived from the claim of human beings to be authors of their lives and – in relation to others – to be participants in common decision-making on equal footing with others Democracy is, therefore, grounded in human rights 28 In addition to the fact that constitutionalism rests on such normative claims, it also implies a political theory regarding the proper means to secure the enjoyment of these rights Constitutionalism is based on the perception that human beings can direct their own life and thus embodies an important element of anthropological optimism This belief, however, is supplemented with the commitment, derived from historical experience, that such autonomous decision-making needs to be constrained to assure that such autonomous decisions do not harm others or the agents themselves A written constitution is an explicit statement of principle, wherein the limitations on government and rights necessary to secure the ends sought are recognized, thus emphasizing the importance of such safeguards These principles are made the highest law of the land and are protected by various procedural mechanisms, including qualified majorities limiting the ability of a polity to easily amend their constitution It is also important to provide for the protection of constitutions by courts, often times even against the actions of legislators 29 If constitutionalism is an element of anthropological optimism, it is not an expression of exuberant optimism; it takes a more skeptical stance It is skeptical of the proposition that human beings will always use their ability for autonomous decision-making well Foresight and safeguards are therefore needed to protect against the misuse of this ability For infallible and kind-hearted beings, constitutionalism makes no sense; however, for human beings, given their nature, constitutions and the limitations they impose on the polity are essential

28 29

They are thus not co-primordial (“gleichursprünglich”),as Jürgen Habermas argues in Faktizität und Geltung, 1992, p  112 ff Constitutional review has conquered the legal landscape since Marbury v Madison, 5 U S 137 (1803)

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Constitutionalism is based not only on such anthropological commitments, but on an institutional theory as well That underlying institutional theory rests on the proposition that the basic institution of a constitutional order, the rule of law, separation of powers, protection of fundamental rights, the mechanisms of limited government, etc all serve the outlined normative ends of constitutionalism well, and that other institutional arrangements do not achieve these aims equally well For example, a spontaneous network of social actors, as in the theory of so-called social constitutions, or other forms of political orders lack some of these features, such as the separation of powers and the rule of law 3. Constitutionalism and Modernity What is modernity? Many debates about the features and fate of modernity rely on a central assumption – that modernity is more than a formally identifiable epoch (our time, beginning at some point in the past) but is rather an epoch with a particular quality that distinguishes it from other periods of human history 30 The central idea is that modernity is defined in part by the effort to realize principles that stand the test of reasonable reflection It was not only for Hegel that the “new times” were better times because of the realization of the freedom of the subject 31 This is embodied in various social developments, from the dramatic improvement of living standards over the last 200 years, to the commitment to a scientific understanding of our world In light of this understanding, constitutional orders are products of modernity 32 There are many critical voices in the ongoing debate about modernity 33 Some are abandoning the concept of modernity and embracing other projects For example, postmodernists argue that the idea of reason, upon which our understanding of modernity depends, is an outdated grand narrative of the past 34 Others try to reshape modernity,35 30 31 32 33 34 35

Cf e g J Habermas, Der philosophische Diskurs der Moderne, 1993, p  10 ff Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts [1821], Werke 7, 1986, § 273 Zusatz: “Das Prinzip der neueren Welt ist Freiheit der Subjektivität, daß alle wesentlichen Seiten, die in der geistigen Totalität vorhanden sind, zu ihrem Rechte kommend sich entwickeln” Cf M Mahlmann, Widerständige Gerechtigkeit, 2018 for more comments from the point of view of social theory For an overview, P Wagner, Modernity, 2012 Cf Jean-François Lyotard, La Condition Postmoderne, 1979, arguing that the alternatives to modernity are structure-functionalist theories (Parsons) or neo-marxist theories, ibid , p  24 ff , alternatives postmodernity has to overcome, p  29 ff Cf the example of Parsons on universals of social organisation, developed in an evolutionary process, T Parsons, Evolutionary Universals, American Sociological Review 29 (1964), 339–357, identifying four elements as fundamental for any modern society: “bureaucratic organization of collective goal attainment, money and market systems, generalized and universalistic legal systems, and the democratic association with elective leadership and mediated membership support for policy orientation”, ibid , 356 An alternative is the theory of communication, reconstructing on the

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discussing it as experience,36 or reflecting about a successive reflexive second37 or even “liquid” modernity38 or pursue the possibility of multiple modernities 39 What can one learn from these debates? An important lesson is not to interpret history as a march of progress, perhaps even in the framework of a teleological interpretation of the course of history The keen awareness of the dark side of human existence, of the destructive forces that may be unleashed in humans, individually and socially, is not a mere contingent part of the conscious reflection of the age of modernity After all, an iconic expression of the idea of the modern condition is a sleeping artist whose dreaming reason lets demons reign, possibly even gives birth to them, that may not be subdued even when he is awake 40 Another lesson is not to identify some concrete order as a pinnacle of history; regardless of whether it is the American Constitution, the Swiss Federal Constitution, the Indian or South African Constitution or the German Basic Law History does not end with these achievements; rather, they create the possibility of further attempts to pursue many valuable human ends 41 In addition, it is wrong to interpret our age as be-

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basis of the idea of a communicative life world the “unfinished project of modernity”, J Habermas, Theorie des kommunikativen Handelns, 1981 Cf Peter Wagner, Modernity as Experience and Interpretation A New Sociology of Modernity, 2008; ders , Modernity, 2012; Michel Foucault, Qu’est-ce que les Lumières?, in: ders , Dits et Ecrits, Tome IV, 1984, 562–578 Ulrich Beck, Risikogesellschaft: Auf dem Weg in eine andere Moderne, 1986; ibid , Weltrisikogesellschaft: Auf der Suche nach der verlorenen Sicherheit, 2008, p  376 f : “Der Linearitätsglauben der modernen Gesellschaft steht im Widerspruch zur Selbst-Entzauberung der Moderne Im Unterschied zu den Gesellschaftstheoretikern von Comte, Marx, Durkheim und Weber über Horkheimer, Adorno, Parsons und Gehlen bis zu Foucault und Luhmann, bestehe ich darauf, daß das scheinbar unabhängige und autonome System des Industrialismus seine Logik und Grenzen aufgesprengt hat und infolgedessen in einen Prozeß der Selbstauflösung getreten ist Diese radikale Wende charakterisiert die gegenwärtige Phase, in der Modernisierung reflexiv wird Anstatt damit beschäftigt zu bleiben, das Elaborieren verschiedener Pfade und Potentiale innerhalb der Industriemoderne aufzuspüren, erfaßt Modernisierung nun eben die sozialen, politischen und kulturellen Basisprinzipien und Basisinstitutionen der nationalen Industriegesellschaft, zerbricht diese und erschließt so neue Potentiale in Opposition zur Industriemoderne Auf diese Weise führt der Prozeß reflexiver Modernisierung von der nationalen Industriegesellschaft zur (noch unbestimmten Vieldeutigkeit der) Weltgesellschaft” Alain Touraine, Critique de la modernité, 1992, p  421: “La crise de la modernité, qui apparaît à certains comme une rupture avec la sécularisation et la confiance en la raison, n’est-elle pas plutôt l’entrée dans une modernité plus complète qui a rompu toutes les amarres qui la retenaient encore au rivage de l’ordre naturel, divin ou historique, des choses?”; Anthony Giddens, Runaway World How Globalisation Is Reshaping Our World, 2002, 75: “democratising democracy” Zygmunt Bauman, Liquid Modernity, 2000 Shmuel Noah Eisenstadt, Multiple Modernities, Daedalus 129 (2000), 1–29, 24: “The undeniable trend at the end of the twentieth century is the growing diversification of the understanding of modernity, of the basic cultural agenda of different modern societies – far beyond the homogenic and hegemonic visions of modernity prevalent in the 1950s” Francisco de Goya, Los Caprichos, No 43 Francis Fukuyama, The End of History and the Last Man, 1992, has a rather unconvincing conception of historical processes

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ing superior There are too many unsurpassed achievements in other epochs, and not only in the arts It has also been the case that modernity has, as a matter of historical fact, been an epoch of harm inflicted on others of a nature and magnitude that was not experienced in the past Thus, the task is to distill from the history of modern times what is worth defending, without any metaphysical commitments about historical epochs Constitutionalism is one of the candidates likely to pass the test of such critical reflection This is most apparent, if one fully appreciates the importance of one of the central historical elements of modernity, namely the reality of destructive forces in human life If one recognizes their dangers and their possibility, a complex system of safeguards for dignity, liberty, equality and solidarity like that found in constitutionalism, is needed There is no reason to remove the safeguards of constitutionalism, because one has to continuously be aware of and protect against the possibility of the worst in human beings The great catastrophes of the 20th century, the Holocaust or the Gulag or other cataclysms of human history like Colonialism, highlight the importance of this insight 4. Whither Constitutionalism? Today is a time of profound challenges for constitutional orders In 1989, the time seemed to have come for the final victory of constitutionalism Systems of state socialism had succumbed to the onslaught of peaceful revolutions of citizens that fought for the central elements of constitutionalism, democracy and human rights Authoritarian regimes in other regions of the world appeared to be under increasing pressure to transform The ill-fated Arab Spring, despite its tragic outcome, signified the power of these ideas This observation is not about ignoring the fact that many systems in the world were not based on constitutional principles, at least in practice Despite this fact, when it comes to political legitimacy, constitutionalism seemed to be without alternative In addition, as these revolutions demonstrated, constitutionalism has proven, yet again, its transformative power in practical politics Given the mass mobilization in these revolutions, it would be reasonable to assume, despite the lack of reliable data from social sciences, that, for many people, basic elements of constitutionalism had become the building blocks of their political outlook Since then, the situation has changed In various states that once seemed open to democratic transformation, autocratic rule has re-established itself, importantly in Russia Other authoritarian regimes, like China, have been successful in quelling democratic movements Some states, even in the heart of Europe, like Poland and Hungary, are violating basic principles of constitutionalism and are, therefore, the ob-

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ject of legal action by the European Union 42 In addition, in various political systems, political forces that attack the rule of law, the separation of powers, the independence of courts, a pluralistic culture (in particular a pluralistic media culture), minorities, an international cooperative order in the name of nationalistic supremacism and antagonism and systems for the protection of human rights have gained ground These forces are not marginal and have attained important governmental positions Similar developments in the United States, under President Trump, add to the legitimate concerns raised by such failures to adhere to the central elements of constitutionalism The doors seemed wide open in 1989 for the rise of constitutionalism, but not so anymore In addition, there is a new political irrationalism that holds sway Nothing less than the existence of commonly agreed standards of reflection is at stake The discussion about post-truth politics alone indicates the seriousness of the situation This is not only true for empirical insights, like those buttressing the evidence of climate change, but other parts of human reflection as well, including our understanding of what counts as a legitimate legal order These are worrying developments, not least for the idea of democracy, which embodies the hope that common decision-making yields not just any results but, at least in the long run, results that stand the test of critical reflection It is an indication that one is faced with a matter of great importance when people feel the need to take to the streets in protest to demonstrate their support for a scientific understanding of our world 43 The world is globalized, which does not imply any kind of destiny or progress towards some higher end, nor does it imply that the nature of the current process of globalization is particularly commendable It simply means that, as a matter of fact, global integration in economic, political, legal and cultural terms has reached a stage that must be regarded as an important consideration when thinking about the future of constitutionalism Finally, humanity faces great challenges, among them traditional ones like poverty, inequality, and a fragile world economy, leading some to think about the end of democratic capitalism because the “bought time” of this system is running out 44 In addition, there are existential challenges, such as the continuous threat of nuclear destruction,45 that do not muster sufficient attention; and, of course, there is the great task of regulat-

42

43 44 45

Cf European Parliament resolution of 1 March 2018 on the Commission’s decision to activate Article 7(1) TEU as regards the situation in Poland (2018/2541(RSP)) and European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)) Cf e g Nicholas St Fleur, Scientists, Feeling Under Siege, March Against Trump Policies, The New York Times, 22 04 2017 Wolfgang Streeck, Gekaufte Zeit, 2015 For a recent statement on this matter cf William J Perry, My Journey at the Nuclear Brink, Stanford University Press, 2015

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ing our behavior to avoid the worst impacts of climate change If one is doubtful about the ability of nationalistic authoritarian systems of governance, based on irrational, strategically used propaganda, to solve these great problems, one must conclude that humanity faces a dire future Humans do not only have to solve these problems (difficult as they are), but they may lack the institutional framework to address the task of designing the necessary solutions in a legitimate way, because the democratic constitutional orders that form the only known system able to produce such solutions, are under increasing strain It is not possible to predict whether constitutionalism will survive this crisis Perhaps these developments are merely passing shadows that will soon yield to the bright sunshine of a new constitutional day Even if so, reflecting on these problems is useful, as these destructive forces will stay fertile There is no ready-made solution for solving this crisis One thing, however, seems clear: if one wants to provide meaningful support for constitutionalism, it is important to begin by reasserting its main point, its aims and the historical experience that underlie its conceptions of a well-ordered society This includes a political theory of institutions that respect human dignity, liberty, equality and solidarity So far there seem to be no alternatives that serve these aims better than constitutionalism There seems to be little reason to doubt the general insightfulness of the anthropological assumptions on which constitutionalism is based, which is the belief in the ability of human beings to be the autonomous authors of their lives and the skepticism about the ability of human beings to exercise this ability without harming others and themselves, unless they are prevented from doing so by safeguards provided by constitutional orders Finally, one has to reestablish the importance of the normative principles that guide the project Freedom is not self-evident Many people around the globe are tempted by the appeal of authoritarian rule, either because they are in fact attracted to such forms of political order, as people were in the past, or because freedom has ceased to be important enough for them to care for its survival Equality, though never fully realized, is under pressure in the social sphere and, increasingly so, not least because of ideologies based on the old curses of racism and religious intolerance The recommitment to solidarity is equally important, because constitutionalism aims, after all, at the protection of the dignity of human beings in a political order in which every human being, irrespective of his or her properties, equally counts as the ultimate source of value in a world permeated by the fallible attempts of human beings to achieve a fruitful life Because constitutionalism aims at the establishment of a commonly created space of decency, human solidarity is part of what makes it alive

The “Nature” of Law in a Realistic and Rhetorical Philosophy João Maurício Adeodato* What is the nature of law? This Chapter describes and defends a realistic rhetorical answer to this foundational jurisprudential question The Chapter initially differentiates between three approaches to the question and shows how the realistic rhetorical approach recognizes the metaphorical assumption inherent in ascribing a “nature” to law Next, the realistic rhetorical perspective on the relationship between law and morals is described This perspective endorses neither the separation thesis nor the necessary connection thesis, but rather conceptualizes law and morality as connected in contested rhetorical discourse and procedural rules From here, the Chapter critically examines the invention of truth in Western philosophy that stands behind the ideology of natural law I argue this concept of truth represents a defeated rhetorical strategy and suggest that the realistic rhetorical approach inherently generates a more democratic ethics and a process that moves the law in the preferred direction of tolerance 1. Three ways of observing the problem Let us first distinguish between three types of mental attitudes embraced by jurists, political scientists and other observers of human matters – normative, eschatological, and analytical These attitudes may also be called visions, theories, approaches, perspectives and so on A normative vision focuses on the future, which it seeks to prescribe and optimize Normative jurists want to inspire and modify their environment and the behavior of people They act with idealistic objectives and seek to edify and improve such environment and behavior To prescribe what the future ought to be, these normative actors

*

Professor of Juridical Rhetoric and the Philosophy of Law at the Faculty of Law of Vitoria and Former Full Professor of the Theory of Law at the Federal University of Pernambuco

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apply a theory I call strategic rhetoric They are authors who by their words hope to influence a “reality” that does not (yet) exist By contrast, an eschatological vision looks to the past to learn what the future will be – not what it ought to be An eschatological approach aims to predict facts or behaviors that do not (yet) exist from the observation of what is believed to have happened Such perspectives are inspired by science and inevitably admire the (questionable) success of the “natural” sciences Eschatological jurists thus wish to locate the study of law in the so-called social sciences From their perspective, it is possible to explain society based on the “discovery” of “laws” and causal links (etiology) in order to anticipate future situations (eschatology) Although wearing analytical disguise, at bottom eschatological theories are also idealistic Finally, the third type of vision is authentically analytical This approach addresses the past and attempts to describe the events such as they seem to appear to the observer It is a realistic and empiricist view because the analytic observer tries not to take sides and participates in debates as a mere spectator Understanding present situations is the goal; analytic jurists seek neither to prescribe the future nor to discover laws that will predict the future They therefore proceed with a less ambitious attitude However, by no means does this mean analytic observers are free from disagreement, especially when it comes to their characteristic concern of trying to refrain from value judgments Strategic normative speakers demand the transformation of reality and can act in the legitimate non-epistemological channels of democratic society such as political parties and scholarly associations 1 Although there is an undeniable seduction for the ontologies of things-in-themselves, the analytic observer cannot forget that normative thinking is an empirically observed function of the human mind It is a perspective subject to criticism The analytic attitude understands inquiries into the “nature” of something as metaphorical Asking after the “nature” of law fulfills the same function as in traditional “natural” law: what is in nature stays above human designs, cannot be ignored, even less invalidated by the will or political action of the people The nature of a thing constitutes its substance or essence, that is, its characteristics beyond opinion and argument The nature of a thing is scientific and eschatological Yet for realistic analytic rhetoricians, such statements about nature hide strategic ways of imposing (contestable) opinions When someone says that there are no arguments against facts, the analytic observer recognizes that this someone may want to make a certain vision of events prevail

1

Adeodato, João Maurício The realities of law are the winning narratives – basic theses for a realistic and rhetorical philosophy of law Frontiers of Law in China, vol  11, nr 3, 2016 (DOI 10 3868/s050005-016-0027-4)

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2. Describing law and morals A realistic rhetorical perspective is analytical and empirical Its descriptive approach concerning the relationships between law and morals starts by observing that every law results from a moral conception This observation does not imply that law is either part of morals or a moral sort Rather, it asserts that every law is born of a moral perspective, which is why law always has a moral content or “value” The realistic rhetorical perspective therefore rejects the separability thesis, that there is no necessary connection between legal validity and morality, which according to Robert Alexy defines the ethics of legal positivism Even though it recognizes that any moral content may turn to law, the rhetorical view does not defend the necessary connection thesis either 2 After a triumphant morality has become law, the law’s coercive character detaches it from its original moral position Legal norms cease to be moral norms; they are now formally defined by their coercivity At the same time, the ethical content of law will obviously coincide in content with the morality of some social sector The observation that every law contains moral evaluations of some sort, does not imply that this moral content in law is specifically predetermined In other words, the realistic rhetorical approach denies that positive law has to either stick to this moral content X or be defined as illegitimate law, be it “bad” law (Unrecht) or no law at all (nicht Recht) Instead, the content of specific laws are the product of the real moral and political struggle There are normative philosophers for whom ethics is synonymous with morals or even with good morals To others, ethics is the study of morality, a system of knowledge According to a third, realistic view, ethics is a genus of human relationships Under this view, the species of this genus include law, morals, etiquette, politics, religion and even economy (to mention only the most important) Somewhat confusingly, the systems of statements that study these norms are also named law, morals, religion and so on As norms, ethics are made of choices about problems of conduct, which vary enormously in time and space So, one should not think that what is seen as “bad morals”, in the opinion of one social group, would not eventually constitute “good morals” to another The same can be said of “bad” manners and, of course, “bad” law The realistic view recognizes that real-world problems present the first moment in the creation of law Issues appear and demand resolution The point is reached where treatment of problems needs to become coercive, cogent for everyone, even for those who do not agree that the chosen solutions are moral and fair The problems are ethical because different people and social groups want incompatible solutions to them Yet

2

Alexy, Robert Begriff und Geltung des Rechts Freiburg–München: Alber, 1992, p  39

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only one group must prevail When persuasion and agreement cannot be obtained, only law is coercive Law does not need consensus to be cooperative and efficacious In modern dogmatically organized law, different ethical opinions inevitably face each other through legal procedures Legal procedures are formal fighting scripts that are independent of ethical convictions Of course, both procedural rules as well as material ethical outcomes produced under the rule may vary infinitely As the realistic perspective sees it, the result of formal proceedings is that one of the material ethical views will prevail and become the dominant legal narrative At this point, three important caveats must be stated to clarify the realistic rhetorical approach: 1 The victory of any given narrative – the “good” – is temporary, circumstantial and self-referential The triumphant morality is always threatened by moral conceptions that were defeated in the legal procedure and by new ones that did not yet exist, all of which aspire to modify reality and to become, through a new legal procedure, the winner narrative 2 The account given by positive law is a strong candidate to shape the real world: because of its coerciveness, it is very likely that the discourse of law will become “reality” In the face of conflicting reports, the ones supported by law’s institutionalized enforcement will probably be established If the law says that a work of art belongs to this (and not to that) litigant, this should prevail But this is not inevitable The vicissitudes of events may lead reality to another path – the legally defeated litigant can destroy the picture, kill the owner, flee with the object to an unknown place, and so on 3 The struggles that create a temporarily dominant narrative may emerge from many different rhetorical strategies Strategies are not necessarily violent, persuasive or democratic: they may correspond to the concept of morality or justice of the majority, of the most cohesive, of the most educated, of the best armed, of the cruelest, of the most opportunistic and so on With these caveats in mind, the realistic perspective regards the moral(ity) of law as the rule to deal with ethical conflicts that have won and the conception about what is fair that has imposed itself on everyone (even those who do not agree with it) Victory in law and morals is always temporary, it can be modified at any moment, and is always challenged by defeated or newborn ethical conceptions, or by diverse ideas of justice that aim to become positive law but have not yet succeed Since law is coercive and needs to decide between irreconcilable alternatives, there is, inevitably, struggle for (and in) law Different perspectives face each other in a political arena – here understood in the very broad sense of “process of choice of the rules of law” – and this will result in an ethical option, which may be one of the previous perspectives or an amalgamation of several of them

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This realistic view of modern ethics is somewhat shocking for traditional ways of thinking In less complex societies, law was mainly criminal law and morality was common to all or to the overwhelming majority The correct and the just were much more clearly detectable in non-modern societies In non-modern societies there was little need for the realistic perspective with its recognition of diverse ethical conceptions in never-ending battle making law Although traditional ontological concepts of good ethics and law do not seem adequate to actually understand the legal world of today, they nonetheless play a significant role in legal philosophy and in legal discourse in general I suggest that the very antiquated – though undeniably successful – conceptions of absolute fairness and justice derive from the idea of truth Truth then, must be confronted 3. The invention of truth The Chaldeans and Mesopotamians became famous in Antiquity for their astronomical discoveries, and it is stated that Thales of Miletus could only predict the eclipse of 475 B C because of the knowledge he had acquired while traveling to Asia Minor In spite of those many precursors in earlier civilizations, however, mathematics itself – pure deductive reasoning – is said to be born in Ancient Greece 3 The first thesis suggested here is that these early mathematicians also invented the idea of truth We know that the concept of truth has been restricted, expanded, and modified People now speak of truth as consensus, as correspondence, even as paralogism These are entirely different ideas from the truth I refer to I define here “truth” in the radical sense of an affirmation that admits no contestation because it forces human reason to accept it under the so-called rules of logic The truth I am concerned with is thus the truth of statements like those verified by the Pythagoreans Such statements seemed to constrain human thinking, provoking a sort of compulsory agreement They are apodictic syllogisms which, surprisingly enough, compel the acceptance of literally all human beings: for example, if a is bigger than b and b is bigger than c, then a is bigger than c; this represents the principle of transitivity, which cannot be denied on pain of illogic This concept of truth was both powerful and surprising, for nature seemed to understand these illations of human “reason ” If a tower was constructed using mathematical rules derived from deductive reason, it remained standing If the tower was built without regard to mathematical truth, it fell After this startling discovery, there developed a strategy of transferring rational constraints from mathematics to other

3

Russell, Bertrand History of Western philosophy – and its connection with Political and social circumstances from the earliest times to the present day London: Routledge, 1993, Book 1

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fields of human experience The idea of truth was used in order to discover and impose obligatory rules across all areas of society The early rhetoricians fought this application of (mathematical) truth to other areas of human experience After all, early mathematicians had also observed that even though truth determines nature and underlies the whole universe, certain mathematical ideals do not exist in the real world 4 Aristotle thought that celestial bodies move in perfect circumferences, but Heraclitus of Ephesus had already intuited and taught that they move in irregular ellipses and never move twice in the same way Similarly, these thinkers realized that there are no perfect circles, triangles or equalities in the real world; every real-world event is unique Despite the force of the rhetoricians’ critique of truth, they faced powerful opponents in religion, science, and even common sense In Western civilization, then, the application of the concept of truth to fields other than mathematics was not limited to the knowledge of nature and its heavenly bodies Truth was soon applied to ethics From the writings of Plato and Aristotle, to the interpretation and expansion of these writings by subsequent generations, especially from the Catholic Church, the concept of deductive ethical truth found success Soon a Christian moral truth was born and found ready acceptance From these foundations of Western culture, the mistrust of truth – stigmatized by Plato and Aristotle as an eristic and sophistical attitude – is condemned as morally bad and reprehensible 5 Under this traditional view, what is correct is moral truth, and justice is the moral truth in law Aristotle, when trying to define truth, states that “to say of what is that it is, and of what is not that it is not, is true”6 This definition does not say much, but its most revealing characteristic is the assumption that nature prevails over language In Aristotle’s words, the existence of nature and its objects are independent of the signs which communicate them Under this traditional (not realistic) view then, ontology prevails over rhetoric Conversely, the realistic view sees ontology as constructed through rhetoric Notably, this approach potentially puts the realistic view at odds with Mortimer Sellers’ scholarship For centuries, Western philosophy has tried to reconcile “reason” and “emotion” in its search for truth When considering whether emotions may be objectively regulated by reason, Sellers writes: Where the totalitarian fallacy of law denies the possibility of any independent standard of justice and gives all authority to the sovereign in order to secure peace, the postmod-

4 5

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Hartmann, Nicolai Philosophie der Natur – Abriß der speziellen Kategorienlehre Berlin: Walter de Gruyter, 1950 Plato Euthydemus, 271c, and Sophist, 225c, in The dialogues of Plato, translated by J Harward (Great Books of the Western World, Chicago: Encyclopaedia Britannica, 1990) Aristotele On sophistical refutations, 171b, and Topics, 159a and 161a, in The works of Aristotle, translated by W D  Ross (Great Books of the Western World Chicago: Encyclopaedia Britannica, 1990) Aristotele Metaphysics, 1011b, in The works of Aristotle, translated by W D Ross (Great Books of the Western World Chicago: Encyclopaedia Britannica, 1990)

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ern fallacy denies the possibility of objective reason about justice, and challenges all legal authority, as resting on pretense or the exercise of raw despotic power, for the benefit of those in authority …7

It seems then that Sellers would accuse realistic rhetoric of committing the postmodern fallacy This is because the realistic rhetoric, with its analytic lens, does deny the possibility of “objective reason” about “justice ” Under the realistic attitude, justice is simply an ethical perspective or an “emotion” Justice will always be justice for particular subjects, for somebody or some group Justice, then, is literally subjective Analytically speaking, justice is never “objective” For the realistic rhetorician, the relations between emotions and reason do not rest on objectivity, but rather on the indelible bond of pathos and logos inside the discourse This logos cannot be reduced to deductive apodictic syllogisms (Logos is admittedly the most objective part of an argument, the “what” of what is said, but it does not stand entirely outside the discourse) Of course, the role of the ethos in persuasion must not be forgotten Ethos defines the character or authority of the “who” expresses the argument and also interacts with the emotions Together logos, pathos, and ethos constitute the discourse inside which particular ontologies form 4. Ethical truth and positivism The second thesis suggested here is that the apodictic ethical truth described above is strengthened by the idea that there is only one true god and all others are false This is what happened when the mathematical and physical truths in the history of Western thought met the revolutionary idea of monotheism As a consequence, the criteria of justice stayed above human power, they became the will of God, and they belonged to the “nature” of the universe Justice and law became physis and not nomos Hence the already mentioned metaphor of a “natural law” Modernity brought about the slow separation between morals, religion, politics and law, which all grew from the same ethical roots This change can be called “evolution”, in the sense that it went from a lower to a greater complexity Understood analytically, this evolution carries no connotation of better or worse; there is no value judgment The emancipation of law from ethical truth is a phenomenon correlated to that of the autonomy of the modern State, the sole speaker of law, guardian of the procedures, as a response to increasing social complexity This is the basis for the close ties between democracy, procedural law and the philosophy of legal positivism To deny the procedure is to deny democracy by assuming

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that some moral interpretations are fair and just in themselves, independent of the positive legal system To assert there is apodictic ethical truth is to assert that some moral interpretations must prevail over all others, which are consequently false, wrong, unjust, incorrect or against the will of God or natural law Contemporary positive law separates itself from morality in the very specific sense introduced above: since there are several moral perspectives, one of them imposes itself as the winner In more primitive societies, ethical homogeneity does not burden law as much as in complex societies, in which other ethical systems are pulverized and banished from the public sphere and law becomes the only common ethical environment Because law is coercive, one cannot escape it Law monopolizes the legitimate application of violence Morals and religion pass into the private world and only law binds society as a whole In less complex societies, other ethical orders dampen social conflicts Only the most serious social conflicts come to law, those which demand more coercive solutions, such as in those that concern crime To say that the growing complexity pulverizes ethical content means that each person has her religion, morality, etiquette, political vision, sexual orientation, etc , making ethical agreements difficult The law cannot forge substantive ethical agreement So, law has turned to procedure In plain words, the moral content that every law has to have – is the death penalty fair? Is abortion lawful or illicit? – becomes secondary: what matters is to determine who decides – competence – and through what rituals – the rite In this context, the success of positivism seems to be related to its appropriateness to the lay legal and political power characteristic of modernity in Western Europe Despite the great rhetorical force of jusnaturalisms (providing ethical safety by clearly separating the ethical from the unethical), the heterogeneity of complex society renders this kind of idealistic discourse obsolete The ideology of natural law remains only in the defense of the universality of certain human rights Yet the reality is that natural law is, for the time being at least, a defeated rhetorical strategy in the praxis of ethics in law This defeat is not mourned While it may be that belief in a higher natural law based on an idea of truth and justice can impel positive law to an ethical improvement – as in the defense of equality made in the birth of Christianity – it should not be forgotten that naturalistic perspectives also inspired religious intolerance, racism and the like Natural law is based on the antidemocratic principle that there is a content of a priori justice in relation to positive law, which shall bow to these principles and must be imposed on all deviants and reluctant Our time has brought unforeseen global interactions into a world made by a plurality of perspectives that resist such axiological universalisms and demand theories of legitimation of law that traditional natural law can no longer provide

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Hence the ethical contribution of positivism: since there is no self-evident justice, the citizens themselves have to take the burden of saying (juris dictio), of putting (hence positivism, from positum), the law That is what has changed: law remains as axiological as it inevitably is, but its values are not prefixed by any instance prior or superior to it Modern ethical differentiation and pulverization may exact a high price, for any moral content may now become law On the other hand, this differentiation and pulverization can generate a more tolerant, democratic ethics A realistic rhetorical philosophy recognizes that it is necessary to perfect the content of law, always in the direction of tolerance Tolerance is the corollary of differentiation It is the acceptance of diversity Modernity is not, in itself, an evil because it lacks a singular concept of truth or justice Instead of morals and religion limiting law, the realistic analytical approach suggests that the opposite may function better: law takes precedence and entices tolerance over moral and religious universalisms Even if many proponents of a universal ethical rationality claim that human rights of first, second, third, or fourth generation are not prerequisites to one another, one should not assume that all people will accept their universal claims Those without basic needs satisfied, those hungry and lacking schools, those frightened by organized crime, they may not lend their support to measures to protect the environment or to propositions in favor of an international criminal court or against the death penalty Without understanding those differences in perspective or experience, a rationally universalized law may well slip into a fundamentalist ethical arrogance, excluding those whose basic needs are left unmet or do not comprehend or accept those choices The concrete and variable ethical criteria of Radbruch’s “unbearable degree of injustice”, defined by a dominant culture, supported by efficient economic and technological indicators, may well be seen by others as the mere justification of exploitation through colonization Within the ethnic and cultural pluralism that characterizes the international environment, it seems naïve to claim certain ethical positions as “right” and others as “wrong” because of the many difficulties in the generic definition of those “superior” options A realistic rhetorical philosophy accepts this and understands law’s role in mediating competing options accordingly

Law as Language and Interpretation Pierluigi Chiassoni* We now know that ‘essence’ simply means ‘important feature’, and that what is important is a subjective or emotional matter No definition ever states the sum total of the qualities that seem to go to the being of a thing; it always involves a selection from those qualities, and the exact selection made depends very much upon the purpose of the definition Glanville L Williams1

1. “The Nature and Purpose of Law” The phrase “the nature and purpose of law” is a common saying in jurisprudential discourse It is, nonetheless, troublesome, up to the point of being nonsense A few remarks should make clear why 1 1 “The Nature of Law” In philosophical language, the word “nature”, when it occurs in phrases like “the nature of …”, is usually meant to refer to the essential (constitutive, fundamental, indispensable) properties (or qualities) of a thing: namely, to the set of properties that makes a thing to be that thing, and not another thing So, for instance, the “nature” of a knife is the set of properties that makes something to be a knife (a tool designed for cutting

* 1

Professor of Jurisprudence, Tarello Institute for Legal Philosophy, Department of Law, University of Genoa (pierluigi chiassoni@unige it) I wish to thank Riccardo Guastini for comments on a previous version Williams (1945), 389

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things), and not something else (a trumpet, a carpet, a pair of whiskers, a bookshelf, a pike in a pond, etc ) As soon as the thing we are talking about is “the law”, however, something seems to go amiss Indeed, the phrase “the nature of law” is capable of conveying ensnaring, dangerous, suggestions To begin with, it suggests that there is some thing, in the world, which is “the law”; it conveys an objectivist idea of law: as some object, or substance, out there Furthermore, it suggests that the thing “law”, out there, has “a nature”: namely, that it is constituted, and identified, by one, and only one, definite set of essential properties making “the law” to be “the law”, and not something else Finally, it suggests “the nature of law” – the one, and only one, set of the (truly) essential properties of the law – is something awaiting for discovery: something investigators have simply to detect and bring to the fore Two and a half centuries ago, Jeremy Bentham, the founder of analytical jurisprudence, claimed “the law” to be a fictitious expression, which names, and refers to, a fictitious entity There is no such a thing as “the law”, out there, he said; there are, rather, innumerable “laws” as semiotic entities produced by law-making authorities 2 We may take Bentham, in his empiricist and demystifying approach, as making two proposals to his fellow jurisprudes First, the quest for “the nature of law” should be abandoned in favor of a less mysterious, more down-to-earth, inquiry concerning the properties of “laws” (“legal norms”, “legal rules”): their varieties, their modes of production, their logical forms, their mutual relationships (both logical and of other sorts), their relationships with the exercise of coercion and political power, their possible contents in relation to theories of justice or moral theories at large, etc Second, if legal philosophers still want to conceive of their inquiries as being about “the nature of law”, they should use “the nature of law”, not in the pointlessly pompous and misleading philosophical acceptation (which stinks of bad metaphysics, one that mixes up concepts and objects), but, rather, in the ordinary, sound, sense, where it simply means “the way the law is in fact”, “what and how the law is in fact” Bentham’s proposals notwithstanding, it is a well-known fact that there are still legal philosophers around who keep talking about “the nature of law” in the philosophical acceptation of the phrase, and conceive of their task as one of discovering “necessary truths” about the law as a whole 3 2

3

Bentham (1782), 1, 251–252; Bentham (1789), 294 At a deeper glance, Bentham sees “the law” as a social phenomenon that is tantamount to laws plus the laws-oriented (laws-producing, laws-applying, laws-obeying, laws-violating, etc ) actions of law-making authorities, law-officials, lawyers, academic jurists, and people at large See, e g , Raz (2009), 24: ‘A theory consists of necessary truths, for only necessary truths about the law reveal the nature of law We talk of “the nature of law” […] to refer to those of the law’s characteristics which are of the essence of law, which make law into what it is That is those properties

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Yet, provided there is no such a thing as “the law”, but just “laws” and people in their several, combinable, intertwining, roles as legal agents and legal subjects, any inquiry about “necessary legal truths”, if it is not misguided, un-scientific, preposterous, or an undercover piece of moral instruction (namely, about what ought to be considered as the morally essential properties of positive legal orders), cannot be but an empirical and conceptual investigation on the way the “laws” (“legal norms”, “legal rules”) are in fact: focusing on their regular (general, usual, typical, recurrent) properties, and aiming at pointing out which, among such properties, should be regarded as endowed with prominent descriptive and explanatory relevance 4

4

without which the law would not be the law’ It must be noticed, in passing, that the very notion of a “necessary truth” about law is far from clear (see, e g , Raz (2009), 24–31; Gardner (2012), 48–49, 144–145, 221–224; Green (2012), xxxiii–xliv) It is not clear, in particular, whether “necessary legal truths” are “necessary” conceptual, analytic, truths, or “necessary” empirical truths Some legal theorist conceives of law’s essential properties as the “universal” and “not contingent” properties of the “social institution” designated by “our” current concept of law (“the concept of law […] we currently have and use”: Raz (2009), 27) Other legal theorists, in a like mood, look for the “necessary” empirical truths about law, and incorporate them into a general concept of law, which becomes in turn the source of “necessary” conceptual truths See, e g , Green (2012), xxxiii–xxxvi, where “necessary”, “constitutive”, properties of the law in general (like, e g , its “necessary” connection to normativity, morality, or a certain purpose) are identified on the basis of properties that are “universal among legal systems”, and, eventually, “unique” to them Curiously, then, some legal theorists keep using a pre-Humean, pre-empiricist, talk of “necessary truths”, “necessary properties”, “necessary connections”, which seems to add nothing to the cognitive content of their theories, but uncertainty and an uncomfortable halo of mystery In view of avoiding uncertainty and mystery, the following notions seem in order “Necessary conceptual truths” about law are nothing but sentences that are true in virtue of the conventional or stipulated meaning of the words they contain (“Law is a coercive normative order; therefore, if something is not a coercive normative order, it is not law”, “Law is a true-morality-promoting normative order; therefore, if something is not a true-morality-promoting normative order, it is not law”, “Law is an action-guiding / justice promoting  / coercion licensing normative order; therefore, if something is not an action-guiding / justice promoting / coercion licensing normative order, it is not law”, etc ) On the contrary, “necessary empirical truths” about law are sentences about observable regularities of the social phenomena we are used to call “law”, about what is regular, general, usual, typical, recurrent, in legal phenomena (“Legal orders can have any content whatsoever”, “There is a regularly observable (“necessary”) connection between the content of the norms of positive legal orders, on the one hand, and the requirements of some social and/or critical morality, on the other”, etc ) When we use sentences expressing analytic truths about the law, we are rehearsing our conceptual apparatus Critical reactions are evidence that it is not (anymore) taken for granted, that it needs repair and reform On empirical “necessity” and “necessary truth”, see e g Hume (1777), 44–57; Carnap (1966), 196–207; Quine (1964), 68–76 When Hart claims that, according to (analytical) legal positivism, “there is no necessary connection between law and morals”, he seems, in fact, to be making a double claim: first, an empirical claim, according to which, as a matter of fact, legal validity does not regularly/generally (“necessarily”) depend on moral validity; second, a conceptual claim, according to which, to the purpose both of sound theory, and of rational criticism of law, it is preferable to adopt a “wider” concept of law, one allowing for a contingent relationship between legal validity and moral validity, i e , according to which a morally defective legal norm is still a legal norm (Hart (1958), 50–56; Hart (1961), 207–212) These are, by the way, the tasks of legal theory, or the philosophy of positive law, in the analytical tradition from Bentham and Austin to Kelsen, Ross, Hart and Bobbio

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1 2 “The Purpose of Law” In ordinary (and philosophical) language, the word “purpose” usually refers to the object some individual agent or collective agent (a set of agents acting in a corporate capacity) intends to attain; it stands for the thing some agent or agency purports to get, realize, or obtain The idea of purpose is connected to the idea of rational agents: rational agents always act to some purpose (they do not run idly), and that purpose (usually) has been consciously (and carefully) conceived, in the light of the situation the agents find themselves in, the means that are (likely) available to them, the probability that makes that purpose preferable to others, etc In ordinary (and philosophical) language, notice, it is only people, acting in a personal or a corporate capacity, who can, and usually do, have a purpose As soon as the thing we are talking about is “the law”, something, again, seems to go amiss Like the twin expression “the nature of law”, the phrase “the purpose of law” is capable, too, of conveying ensnaring, dangerous, suggestions To begin with, it suggests a personified view of the law: it presents “the law” as an agent that, like every other agent, acts to some purpose Furthermore, it suggests that such a fictitious agent, “the law”, always intends one, and only one, (presumably) definite purpose: that there is one object, one thing, in the world, that “the law” always and everywhere intends to attain A simple exercise in analytical jurisprudence raises several salient concerns If, as Bentham claims, the law is made of innumerable laws, “the purpose of law” is nothing else but the purpose of the innumerable laws making up any (system of) positive law, at any time It is extremely unlikely, however, that the innumerable laws of, say, the present U S legal order serve, and have always served, one, and only one, definite purpose Unless, to be sure, we resort to very broad characterizations of the law’s purpose, like, e g , “guiding the behavior of Americans (and others who happen to be subject to the American jurisdiction)”, “serving the interests of the American People”, “ordering the American society”, “procuring peace and tranquility for Americans”, etc As a consequence, talking of “the purpose of law” either is talking by way of a misleading simplification, or is talking in triviality, or, else and again, is promoting an undercover piece of moral instruction, pointing to some definite (set of) purpose(s) as the “proper”, “natural”, “right”, “correct” purpose people ought to attain by means of the law 5 Provided “the law” is no agent, and so it cannot have any “purpose” whatsoever, unless by way of personification, any inquiry about “the purpose of law”, if it is not 5

Rudolf von Jhering aptly calls his path breaking, 1877 book, Der Zweck im Recht: The Purpose in the Law, not the purpose of the law “A sole thought makes up the basis of the present work: the purpose is the creator of the whole law; there is no legal norm, the origin of which does not depend on a purpose, i e , on a practical motive”: Jhering (1884), 6

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misguided, un-scientific, preposterous, or an undercover piece of moral instruction, cannot be but an empirical and conceptual inquiry on the typical, recurrent, regular purposes served by the several varieties of laws making up past and ongoing positive legal orders 1 3 Taking Stock Let me sum up briefly the main results the foregoing analysis suggests 1 “The nature and purpose of law”, though a common saying in jurisprudential discourse, possesses a remarkable capacity for conveying mistaken and misleading ideas about the law On the one hand, due to the current (millenary) philosophical notion of “the nature of a thing”, the phrase is apt to convey the idea of there being something, out there, which is “the law”, that is endowed with a set of essential properties, awaiting to be discovered On the other hand, due to the current ordinary (and philosophical) notion of “purpose”, it is apt to convey the idea of “the law” as a person-like entity, endowed with one, and only one, purpose, which is the same for all and every legal order across time and space 2 To be sure, “the nature and purpose of law” can also be used just as the signpost for a variety of issues in theoretical or normative jurisprudence In such a case, its use should be confined to providing a serviceable title to workshops or collections of essays, where organizers want participants to enjoy of the widest freedom in selecting their topics and working them out Outside of those cases, however, one may wonder why legal philosophers should keep using such an opaque and oblique expression, instead of openly declaring that, say, they are going to deal with law’s normativity, law’s moral justification, law as a specific technique of social control, law as an efficiency promoting machine, etc 3 From the standpoint of a realistic and analytic jurisprudence, any inquiry concerning “the nature of law” should take “the nature of law” expression in its ordinary meaning, where it simply refers to “what and how the law is in fact”, and should consist in an empirical and conceptual investigation about the properties regularly, generally, typically, recurrently displayed by the complex social phenomenon we call “the law”, or, in more precise terms, about the properties regularly, generally, typically, recurrently displayed by the “laws”, “norms”, or “rules” that represent, at least prima facie, a basic component of every legal experience 4 From the standpoint of a realistic and analytic jurisprudence, any inquiry concerning “the purpose of law” should consist in an empirical and conceptual investigation about the several purposes, on different levels of abstraction, that the “laws”, “norms”, or “rules” of positive legal orders are, or can be, used to serve

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In the following, I will leave aside “the purpose of law” issue and focus on “the nature of law” Of course, I will understand it in the ordinary, empiricist and demystified way I have just advocated 2. Law as Language and Interpretation If we undertake the task of a philosophical (empirical and conceptual) inquiry on the law as it is in fact (i e , on the regular, general, typical, recurrent, properties of the complex social phenomenon we are used to call “the law”), and, in so doing, we aim at those properties that could be regarded as endowed with prominent descriptive and explanatory relevance, a multitude of candidates are readily identifiable Analytical jurisprudes focus on the property of law’s normativity They emphasize that “the law”, from a genuinely theoretical standpoint, can safely and usefully be conceived and presented as made of “laws” (Bentham, Austin), “legal norms” (Kelsen, Bobbio), or “legal rules” (Hart), having to do with the use of coercion by political authorities and concerning the ways people in a society should behave 6 Treasuring insights from realistic7, analytic8 and interpretivist9 theories of law, I will deal – in a haphazard way – with two properties that are regular (general, typical, recurrent) in “our” legal orders, and have been the matter of insightful theoretical investigations for a long time I mean the property of law as a social phenomenon endowed with a prominent linguistic side (the “law is language”), and the property of law as a social phenomenon endowed with a prominent interpretive side (the “law is interpretation”) The two properties are related On the one hand, the phenomenon of law is characterized by the presence of a legal discourse that includes, at least in (more) mature experiences, even very long and articulated linguistic documents, considered and used – by jurists, judges, lawyers, and people-at-large – as authoritative legal texts: constitutions, international covenants, codes, statutes, regulations, administrative orders, 6

7 8 9

Is, then, the law “necessarily normative”? Is normativity, in the sense I have just made clear, a “necessary property” of the law? Is the proposition that law is normative – i e , made of laws, norms, or rules – a “necessary truth” about law? If, as an outcome of an empirical enquiry, we decide to conceptualize the basic ingredients of positive legal orders in terms of “laws”, “norms”, or “rules”, and, adopting a normativist concept of law, we think that a laws-less (norms-less, rules-less) law would be no law at all, then, yes, normativity is (becomes) a necessary property of law, and the sentence “The law is made of laws (legal norms, legal rules)” comes to express a (tautological) necessary truth (“The social phenomenon made of laws (legal norms, legal rules) is made of laws (legal norms, legal rules)”) On this issue, see the remarks I make in footnote 3, above See e g Chiassoni (2013); Dagan (2017); Guastini (2011); Guastini (2015); Leiter (2013) See e g Williams (1945); Bobbio (1950); Hart (1961); Wróblewski (1964); Carrió (1965); Scarpelli (1969); Tarello (1974); Alchourrón, Bulygin (1996) See e g Stavropoulos (2014)

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judicial opinions, juristic writings, (where they have the status of a “legal source”), etc 10 On the other hand, the presence of authoritative legal texts ushers in interpretation The use of authoritative texts for solving real or hypothetical legal problems involves the performance of acts of “interpretation”: i e , the carrying out of acts concerning the determination of the (“legally correct”) meaning of those texts11 The theoretical importance of the linguistic and the interpretive sides of the law hardly needs emphasizing Nonetheless, theoretical claims about law are being made that seem to downsize both the connection between law and language, and the connection between law and interpretation In what follows, I will briefly consider two examples of such downsizing claims If only, because their analysis affords the possibility for outlining an argument in favor of the “law is language” and “law is interpretation” claims 2 1 Legal Standards Are Nothing Else but Linguistic Entities In the thoughtful, and deeply instructive, entry Law and Language, written for the Stanford Encyclopedia of Philosophy, Timothy Endicott rejects Jeremy Bentham’s conception of laws as linguistic entities, since, he claims, it faces “insurmountable objections” 12 The gist of Endicott’s argument runs as follows: 1 Bentham claims that the law is made of “laws”, and “laws” are linguistic entities (“assemblages of signs”) 2 Bentham, however, is wrong on four counts First, positive legal orders usually contain “standards of behavior” that are not the outputs of “linguistic acts”, and do not have, accordingly, any “canonical linguistic formulation” Think of the legal standards that, in a common-law, precedent-based system, are produced by judges through case law Second, positive legal orders cannot consist of canonically formulated legal standards only: A civil law system with a civil code and a criminal code may make murder an offence (and slander a tort …) by a written act, and it may be a written constitution that gives legal force to the civil code and to the criminal code But the validity of the written constitution will

10 11 12

Think, to quote some quite old examples, at the stone-carved Code of Hammurabi, the Lex Duodecim Tabularum, or Justinian’s four-pronged codification of Roman law Customary law also requires interpretation In such a case, however, the “text” is made of the verbal and non-verbal, temporally continuous, behaviours making up the so-called “external element”, or “use”, or “practice”, out of which customary rules are to be identified Endicott (2016), §§ 1, 2 1

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depend on a norm which is not created by the use of signs: the rule that that text is to be treated as setting out the constitution 13

Third, the idea of tacit laws, which Bentham and Austin set forth to overcome the presence of legal standards that are not the outputs of linguistic acts, fails Indeed, telling the existence of tacit laws (“tacit commands”) from their inexistence requires the possibility of appealing to “features of the situation” working as undisputable signs of the presence of such tacit products of a law-making will Such features, however, “do not generally accompany customary rules “14 Fourth, by claiming that laws are assemblages of signs, Bentham runs into a fatal confusion He mistakes the linguistic vehicle, which consists indeed in an assemblage of signs, with the standard (the norm, the request) it is used to convey: When I write you an email message to make a request, the message is an assemblage of signs, but the request is not an assemblage of signs; it is something I use the assemblage of signs to make The law that results from the use of language in an enactment is a standard (or standards) whose existence and content are determined by the legal effect that the law ascribes to that use of an assemblage of signs […] Laws are not linguistic acts Laws, you may say, are standards of behaviour that can be communicated (and some of which are made) by using language But even this is controversial among writers on legal interpretation 15

Is Endicott right? Upon reflection, he may be right on details, but seems to be wrong on the core issue The whole of Endicott’s argument depends, apparently, on the idea that a legal standard is something different from a linguistic entity (like, say, a sentence in a natural language) He seems to consider, in the passage I have just quoted, that “standards of behavior” may need language to be “communicated”, but promptly adds that such a view “is controversial” But his view seems to be, in fact, that legal standards are evidently different from the assemblages of signs the legislatures happen to use in order of conveying them Now, a question immediately pops out: if legal standards are not linguistic entities, what sort of things are they? The “existence” and “content” of a standard, Endicott emphasizes, “are determined by the legal effect that the law ascribes to that use of an assemblage of signs ”16 What is, however, “the legal effect that the law ascribes to” a certain “use of an assemblage of signs”? Apparently, also in light of what Endicott says in the following

13 14 15 16

Endicott (2016), § 2 1 Endicott (2016), § 2 1 Endicott (2016), § 2 1, italics added Endicott (2016), § 2 1

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section of his entry,17 it is nothing else but a meaning: what it communicates or conveys, if “correctly”, “properly”, interpreted is, more precisely, the “legally correct” meaning of that enacted assemblage of signs The meaning of an enacted assemblage of signs, however, in nothing else but a (simple or complex) sentence; it is nothing else but a linguistic entity Because of the unavoidable process of (potentially unlimited) semiosis, the meaning (“the legal effect”) of an assemblage of signs, in order to be used in a legal context whatsoever (for instance, as a normative premise in a piece of legal argument), needs to be formulated, on the part of interpreters, by means of another assemblage of signs, and so on and so forth, by subsequent (re)formulations, until the semiotic process comes to a stop – in force, for instance, of the working of institutional constraints (usually, judges ought to provide fairly limited opinions in fairly limited time) The previous remarks suggest the following conclusion There is a constitutive, substantial, connection between law (understood as a set of rules, norms, or standards of behaviour) and language, which is more extensive than the one Endicott, in his critique to Bentham, seems willing to concede Legal standards (norms, rules) are nothing else but linguistic entities, usually belonging to prescriptive discourse When they are mentioned, used, appealed to, applied, argued for or argued against in legal reasonings, they are just meaningful sentences Be they (a) sentences that represent the (prescriptive) meaning of canonically formulated assemblages of signs, (b) sentences that represent the norms produced and instantiated by (social phenomena some legal authority has determined to consider as) customary practices, (c) sentences that represent the holding, the maxim, the ruling, or the ratio decidendi of a judicial precedent, or, last but not the least, (d) sentences that represent (assumedly) implicit or “unwritten” legal standards (like, e g , an implicit constitutional principle) 2 2 Interpretation and the “Sources Thesis”: An Unnecessary Rescuing? In another section of Law and Language, Endicott purports to rescue Joseph Raz’s sources thesis, the pillar of Raz’s positivist theory of law,18 from the (assumed) vice of overlooking the evaluative character of legal interpretation 19 It is by no means clear that Raz’s sources thesis actually needs to be salvaged in the way Endicott proposes In any case, the story is worth telling If only because it provides support to the “law is interpretation” claim: namely, to the claim that interpretation is a widespread phenomenon playing a paramount role in legal experience, one that legal theorists should not dare to disregard 17 18 19

Endicott (2016), § 2 2 Raz (1979), 38–52; Raz (1994), 210–237; Raz (2009), 386–390 Endicott (2016), § 2 5

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Let’s start with the gist of Endicott’s defense of Raz’s sources thesis 1 According to Raz, a proper theoretical account of positive law should encompass the “sources thesis” The sources thesis claims that: All law is source-based A law is source-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument 20

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Even a cursory inquiry on judicial decisions suggests, however, that the identification of “the content” of, say, a statutory provision does always and unavoidably require some piece of “evaluative reasoning” This happens not only “in borderline cases”, where some descriptive term in an authoritative legal text may prove indeterminate, but also “in clear cases”, where no linguistic indeterminacy is afoot It is, indeed, the “systematic” character of law, the contextual dependence of the meaning of legal provision, and the fact that the law usually contains principles pulling in different directions, that make such evaluative argument necessary whenever a judge must determine the all-things-considered legally correct meaning of descriptive statutory (constitutional, regulatory, etc ) terms 21 As a consequence, the notion of a source-based law must be revised The “no resort to any evaluative argument” clause cannot hold as such; it must be qualified, Endicott suggests, in the following way: [A] law is source-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument, other than whatever evaluative argument may be needed to determine the social facts, or to work out their implications for the case at hand 22

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Such a revision, nonetheless, does not undermine “Raz’s explanation of the nature of law” as provided by the source thesis Indeed, Endicott concludes: It is still possible for legal directives to have the exclusionary force that, in his theory of authority, they claim23

A few comments are in order 1 In his revision of the original, Razian, formulation of the sources thesis, Endicott correctly assumes “a source-based law” to be tantamount to “a source-based legal norm” In the Garner v Burr decision he quotes while arguing for the ubiquity of evaluative 20 21

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See Endicott (2016), § 2 5, where he quotes Raz (1994), 194–195 (210–211) Endicott (2016), § 2 5 Endicott supports his claim by making reference to the opinion in Garner v Burr [1951] 1 KB 31, where Mr Burr, who had put iron-wheels to a chicken coop and dragged it on a public road, was found guilty of a criminal offense, for violating the rule according to which “vehicles” on public roads ought to be equipped with rubber-tired wheels Endicott (2016), § 2 5 Endicott (2016), § 2 5

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reasoning in judicial interpretation,24 the problem is not about whether a certain legal provision, namely, section 1 of the Road Traffic Act 1930, is “source-based” The problem is, rather, which is the legal norm that, in relation to section 1, is “source-based”; the problem is, more precisely, which is the all-things-considered legally correct meaning of the word “vehicle” as it appears in that section of the Act: is it the wider meaning (an iron-wheeled chicken coop is a “vehicle”), giving effect to the legislative purpose of protecting public roads from being damaged by improper use? Or, rather, is it the narrower meaning (an iron-wheeled chicken coop is not a “vehicle”), giving effect to the principle of certainty in criminal liability? 2 Provided “a source-based law” is a source-based legal norm, Endicott’s proposal of revision of Raz’s original formulation of the sources thesis has no rescuing effect On the contrary, it suggests that the sources thesis, in its original Razian formulation, is based on a notion, that of “source-based law”, that is utterly idle, at least insofar as statutory, and “written” laws in general, are concerned Indeed, if “source-based laws” are sourcebased legal norms (i e , the meanings of enacted legal provisions), and no such legal norm can be identified without resorting to evaluative argument (though concerning “social facts”), then we must reach the conclusion that, by the Razian definition of a “source-based law”, there are no (statutory or written law) “source-based laws” at all in existing legal orders This conclusion, notice, is not just uncomfortable or queer It is more than that; it destroys Raz’s sources thesis, since it leads, apparently, to a contradiction: “All law is source-based; but, upon consideration, there are no source-based laws, at least, insofar as statutory, and “written” laws in general, are concerned ”25 3 Perhaps, however, Raz’s sources thesis does not need to be rescued by a salvific argument like Endicott’s 26 On a charitable reading, it might be argued that the sources

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See footnote 18, above I am assuming “All law is source-based” to express a descriptive, theoretical claim about law, and not a definition of the word “law” In the latter case, the conclusion I bring to the fore in the text would not lead to contradiction; this would be bought, however, at the price of understanding Raz’s theory as purely about words Sometimes, to be sure, Raz seems to suggest that, when the law on a matter is settled, and judges follow it, they simply apply laws that are “publicly ascertainable”: Raz (1979), 49–50, 51–52 In such cases, accordingly, Raz seems to think that judges identify the law without resorting to evaluative reasoning, which is what Endicott considers a wrong view of judicial interpretation Raz also claims, however, that when the law is settled, judges can always distinguish or overrule it, and this involves evaluative argument (Raz (1979), 49) This suggests that, when judges are concerned, also the application of settled law depends on evaluative considerations that may push, on balance, for staying with settled law: see Raz (1979), 180–209, at 182 Furthermore, Raz recognizes the evaluative dimension of interpretation, if only in deciding to adopt a conservative stance: Raz (1979), 208–209; Raz (2009), 106–125, 223–240, 262–264, 265–298

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thesis does not fly in the face of interpretation as an evaluative enterprise Indeed, Raz seems pretty clear in making three claims First, a law (a legal norm) is source-based when its existence and content depend on some combination of sources For instance, the existence and the content of a statutory legal norm depends both on a “formal” source (the existence of an enacted piece of legislation), and on “interpretative sources”, which include “the rules of interpretation prevailing” in the legal system at the time27, and, of utmost importance, judicial opinions providing authoritative interpretations of that piece of legislation28 Second, knowing the existence and content of a source-based law is an act that does not involve any piece of evaluative reasoning; it is, at most, a piece of “reconstructive reasoning”, where the inquirer aims at reconstructing which laws exist, and what their content is, from the standpoint of actually carried out, sensible, acts by the law-making and law-applying authorities29 Third, it can happen, to be sure, that the factual inquiry upon the existence and content of positive laws carries implies that, say, on a certain issue, there is no source-based law, for no determinate, source-based, rule can be detected or reconstructed out of the variety of social facts (legal sources) that exist 30 This happens, for instance, when the conventional rules of statutory interpretation, being uncertain, indeterminate, or even mutually conflicting, lead to alternative, mutually exclusive, meanings for the same legal provision 31 The three claims seem to lead to the following conclusion Raz’s theory of sourcebased laws, contrary to what Endicott seems to suggest, does take into account interpretation as an evaluative activity involving evaluative argument However, when the task is not, so to speak, playing at the law-game, but knowing the law according to a rigorous positivist standpoint  – i e , one that adopts the sources thesis as a metatheoretical requirement concerning the criteria for a value-free, factual, identification of existing laws –32 this task does not require interpreting legal provisions and other legal 27 28 29

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Raz (1994), 233 “The sources of a law […] are never a single act (of legislation, etc ) alone, but a whole range of facts of a variety of kinds” (Raz 1979, 48, 47–48) Concerning the identification of the existence and content of a judge-made legal rule (the ruling, the holding), for instance, Raz states the following: “while the ruling is expressed in the judgment there is no canonical formulation of it, and some aspects of it are implied, rather than explicitly stated That is why not infrequently in order to establish what the ruling was, one has to reconstruct aspects of the court’s reasoning […] that is consistent with the sources thesis […] the reasoning of the court may well have been moral reasoning But in reconstructing it we do not engage in moral reasoning ourselves We are merely recreating the court’s moral reasoning”: Raz (2009), 388 Raz (2009), 106–125 Raz (2009), 122–125 “The social thesis is best viewed not as a “first-order” thesis but as a constraint on what kind of theory of law is an acceptable theory […] A jurisprudential theory is acceptable only if its tests for identifying the content of the law and determining its existence depend exclusively on facts of human behaviour capable of being described in value-neutral terms, and [can be] applied without

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sources as an evaluative activity involving evaluative reasoning, not even in a detached variety Rather, it requires the ascertainment, and, if necessary, the reconstruction, of past social facts concerning, for instance, the enactment and judicial (and/or official) interpretation of statutory clauses 33 The law is a social phenomenon endowed with a prominent linguistic and interpretive features Theories that downsize these features of existing legal orders are doomed to criticism and failure, as the two examples I have just considered demonstrate There are, however, different ways of accounting for the linguistic and interpretive sides of the law For instance, among the theories that adopt a pragmatic perspective, we find two competing views concerning legal (and judicial) interpretation: namely, the view I shall call pragmatic formalism and the view that I shall call pragmatic realism In the following, I will start by providing a sketchy presentation of pragmatic formalism (§ 3) Then, I will consider the critique of pragmatic formalism from the standpoint of pragmatic realism (§ 4) Finally, I will give a bird-eye account of pragmatic realism (§ 5) 3. Pragmatic Formalism Pragmatic formalism is a quasi-cognitivist, pragmatic view about legal (and judicial) interpretation It is a quasi-cognitivist view, since, it claims that there are statistically significant cases, so-called “easy cases”, where the judicial application of law only requires, and involves, what is basically an act of knowledge, in the form of an act of “understanding” the law’s words It is a pragmatic view, since its theory of legal language and interpretation has been worked out by resorting to pragmatics as a branch of semiotics and the philosophy of language In contemporary jurisprudence, the foremost representative of pragmatic formalism is Andrei Marmor 34 In a nutshell, Marmor’s theory of legal (and judicial) interpretation is comprised of five main theses: 1 The production of laws through legislation is a communication enterprise properly represented, and accounted for, by means of a communication model (the communication model thesis); 2 Legislative communication can fail (the communication failures thesis);

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resort to moral argument”: Raz (1979), 39–40 The latter passage states the “strong social thesis”, that, in Razian terminology, is tantamount to the “sources thesis” Raz (2009), 388–389 See e g Marmor (2011a); Marmor (2011b); Marmor (2014)

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Ordinarily, the communication content of any piece of legislation is, and can be, grasped by reasonable hearers through reasonable uptake (the reasonable hearer-reasonable uptake thesis); Interpretation only steps in in exceptional cases, when reasonable uptake runs into situations of legal indeterminacy (the interpretation-as-exception thesis); Interpretivism, which claims interpretation to be a ubiquitous phenomenon in the ordinary working of any legal order, is wrong (the refutation of interpretivism thesis)

1 A Communication Model for Legislation Written law – and legislation as the foremost instance thereof – is evidently to be accounted for by resorting to a communication model, like the one that is usually employed in Gricean and neo-Gricean pragmatics to account for ordinary communication between ordinary people by means of ordinary language 35 Legislation is, in fact, a communication enterprise: each and every legislature intends to convey to judges, officials, and, above all, people at large, the full communication (or communicative) content of its enactments This content typically has both an explicit, and an implicit, component: namely, what the legislature intends to say (explicit), and what the legislature intends to convey tacitly, without saying, by way of implication, implicature and/or presupposition (implicit) 36 On the one side, there is the legislature (the speaker), who sends a linguistic message having a certain communicative content; on the other side, there are judges, officials and people at large (the hearers), whose task is determining the full communicative content the legislature intended to convey by using certain strings of words 2 Communication Failures Linguistic communication, ordinary and legislative alike, is not always successful There are two ways for legislative communication to fail To begin with, legislatures (speakers) can “fail to communicate all that they had intended to” Furthermore, the communication content, once the hearers (judges etc ) have come to determine it, can prove troublesome Taking stock of this, any theoretically sound account of the complex phenomenon jurists mean to identify by the generic phrase “legal interpretation” must draw a dis-

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The “communication model” resorted to by pragmatic formalism is a pragmatic model of linguistic communication, the original elaboration thereof is due Paul H Grice, which purports to supplement and improve the semantic, “code model” of linguistic communication, used by John Locke and Ferdinand de Saussure, which reduces the communication content of speech acts to the conventional, explicit meaning of the uttered sentences See, e g , Korta, Perry (2015), § 3 Marmor (2014), 1 ff

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tinction between “understanding” (“reasonable uptake”) of “what the law says”, on the one hand, and “interpretation” proper (“interpreting it”), on the other hand 37 3 Reasonable Hearers Performing Reasonable Uptakes. Due to the fact that legislatures can “fail to communicate all that they had intended to”, the hearers (judges etc ), in order to grasp the (full) communicative content of a piece of legislation, must perform an act of understanding to be conceived as “reasonable uptake”; namely, as the understanding of the communicative content of a piece of legislation by a “reasonable hearer” 38 Though Marmor does not put it in these terms, what he presents as “understanding” or “reasonable uptake”, and opposes to “interpretation” proper, encompasses two distinct operations These concern the two components of the explicit communicative content of any piece of legislation: namely, the semantic content and the pragmatic content I will refer to such operations as semantic understanding and pragmatic understanding, respectively Semantic understanding is about grasping the “semantic content” of legal provisions, on the basis of the syntactic and semantic rules of the relevant natural language It depends on linguistic skills It is a necessary (unavoidable), un-reflexive, rule-determined, original, and independent cognitive process 39 In the plentiful situations of easy cases, Marmor argues, judges simply understand the semantic content of a legal provision In those cases, the semantic content is, accordingly, tantamount to the “assertive content” (or “prescriptive content”) of the legal provisions at hand (“what the law says”) By getting to know the semantic content of legislative utterances (legal pro37 38

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Marmor (2011a), 10, 97–108, 136–145; Marmor (2014), 19 ff , 107–109 Marmor explains the idea of “reasonable uptake”, which corresponds roughly to what in previous essays qualified as “understanding”, in the following terms: “the subjective intentions of the speaker are only partly constitutive of assertive content; speakers can sometimes fail to communicate all that they had intended to Therefore, the content that is said or asserted by a speech act partly depends on its reasonable uptake Assertive content, on this view (that I share), must be defined objectively as the kind of content that a reasonable hearer, with full knowledge of the contextual background of the speech, would understand the speaker to have intended to convey, given what the speaker expressed, the relevant contextual knowledge, and the relevant conversational norms that apply” (Marmor 2014, 19) Marmor (2011a), 142: “Our ability to understand each other in a communicative context depends on a shared, at least tacit, understanding about the kind of conversation we are engaged in, and the norms governing it Understandings of this kind are, of course, subject to occasional misunderstandings or deviations of various kinds, in which case, typically some aspect of the communication fails None of this, however, is a matter of interpretation From the fact that there is some normative framework governing the kind of conversation one is engaged in, it does not follow that a hearer’s grasp of the communicative content hangs in the air, as it were, until she comes up with an interpretation of the relevant maxims Maxims are typically common knowledge between speaker and hearer, in no need of interpretation”; 144–145: “Mostly, just like in an ordinary conversation, we hear (or read, actually) what the legal directive says and thereby understand what it requires In some cases, it is unclear what the law says, and interpretation is called for”

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visions), judges get to know the law as it is (or, in other terms, what is the law for the question at hand) and give voice to it in their decisions 40 Pragmatic understanding is not always necessary in law 41 It becomes necessary whenever the semantic content of legal provisions needs to be pragmatically saturated (“enriched”) in order to get to the full “assertive” (or prescriptive) “content” This is the case whenever legal provisions contain context-sensitive expressions: like, e g , personal pronouns (“it is not allowed for political crimes”), possessive ascriptions (“their behaviour shall be considered as …”), domain quantifiers (“Everyone ought to abstain from piracy”) 42 In these situations, the assertive (prescriptive) content of legal provisions, what the law says, is the output of a “defeasible inference” from three factors: (a) the semantic content “of the expression used”, (b) the context (“the contextual background that is common knowledge between speaker and hearer”), and (c) conversational maxims (“the relevant normative framework governing the conversation in question”) 43 Pragmatic understanding, through the application of relevant conversational maxims, is also salient in determining the implicit communicative content of an enacted legal provision: in particular, its legislative implicatures Here, however, as Marmor makes clear, its effectiveness can be impaired by the strategic attitude interpreters may choose to adopt 4 Interpretation-as-Exception Interpretation becomes necessary (unavoidable, a regular feature in the judicial application of statutory law) whenever understanding, as reasonable uptake, does not lead to one determinate outcome This happens because of various factors that undermine the law’s determinacy These factors are: (1) vagueness; (2) ambiguity; (3) gaps; (4) normative conflicts; (5) uncertainty about the correspondence between the semantic content and the assertive content of the legal provision at hand; and, (6) uncertainty about the legal implicatures of the legal provision at hand 44 Interpretation is a contingent, reflexive, not rule-determined, but, at most, paradigm-guided, parasitic, evaluative activity 45 In virtue of its contingent character, interpretation is –

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Marmor (2005), 10 ff ; I have offered a synoptic table of the differences between understanding and interpretation in Chiassoni (2008), 257 See also Endicott (1994), 451–479; Endicott (2016), § 2 2 Marmor (2014), 27, 28 ff , 33: “in the context of statutory law, the gap between semantic and assertive content is much more limited and infrequent compared with ordinary conversation” Marmor (2014), 22–27 Marmor (2014), 22 ff , 28 ff , 33–34, 108 In other parts of the book, pragmatic understanding, as part of the reasonable uptake of the full communicative content of a speech act, also concerns the identification of the implicated content of the communication, beyond the assertive content See, e g , Marmor (2014), 49 ff Marmor (2011a, 141) makes clear that: “every communicative interaction is guided by some norms that govern the kind of contribution to the conversation that speakers are supposed to make Without such a normative framework, typically shared by the relevant conversational parties, communication would not be possible” Marmor (2011a), 145–159; Marmor (2014), 118–129 and ch 3 Marmor (2005), ch 2, 10 ff ; Chiassoni (2008), 257

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as Marmor emphasizes – “only the exception to understanding what the law says, not the standard way of grasping its content ”46 The exception amounts, as Marmor makes clear, to a dramatic change in the nature of the judicial application of law Whenever a judge finds herself in need of (properly) interpreting a legal provision, she is required to perform a law-creation activity Interpretation modifies – “completes” – the law; if only temporarily, by closing the law’s loose ends as to the case to be adjudicated 47 5 The Refutation of Interpretivism Some scholars – notably, Ronald Dworkin – set forth an interpretivist account of law They claim interpretation, as an evaluative and constructive (purpose-imposing, point-imposing, sense-imposing, meaning-determining) activity, to be ubiquitous in law 48 But – Marmor argues – they are wrong 49 On the one hand, the ubiquity claim is at odds with (“flies in the face of ”) everyday experience, both outside of the law, and inside of it There are in fact plenty of cases where judges just understand the meaning of the legal provisions relevant to deciding the cases at hand 50 On the other hand, philosophy of language – which, because of the linguistic, communicative, dimension of law, is obviously relevant to dealing with theoretical legal problems51 – shows that interpretation is a marginal phenomenon in relation to linguistic communication; both in general, and in relation to legal “conversations”, i e , to the linguistic transactions in law, like those among legislators, between legislatures and people at large, or between legislatures and judges or other officials This is the case, Marmor maintains, because of three factors: namely, (1) the circumscribed character of contextual dependence;

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Marmor (2011a), 137; see also 9–10: against “Dworkin’s argument that we can never grasp what the law says without interpretation”, so that, given the partly evaluative nature of it, “understanding what the law requires is necessarily dependent on some evaluative considerations”, Marmor wishes to argue that Dworkin’s conception “of what it takes to understand a legal directive is based on a misunderstanding of language and linguistic communication […] when linguistic considerations are taken into account in the appropriate ways, we will realize that interpretation becomes the exception, not the standard form of understanding what the law says”; Marmor (2014), 107–109 See, e g , Marmor (2014), 74 Dworkin (1985), 145–166; Dworkin (1986); Stavropoulos (2014) Marmor (2005); Marmor (2011a), chs 4 and 6; Marmor (2014), 107–110 Marmor (2011a), 107–108, 138: “When we conduct an ordinary conversation, it is not our experience that every utterance by a speaker is somehow followed by a pause, when the hearer thinks about ways to interpret what has been said Under the normal circumstance of a conversation, we just hear the utterances and thereby understand what has been said” See also Marmor (2014), 107–109 Marmor (2011a), 136: “Philosophy of language is central to an understanding of law for a different reason Law, as we have seen in previous chapters, consists of authoritative directives The content of the law is tantamount to the content that is communicated by various legal authorities Authorities communicate, of course, in a natural language Therefore, an understanding of how linguistic communication works and, in particular, how much is actually determined by various semantic and pragmatic aspects of language, is central to an understanding of what law is”; Marmor (2014), 1: “Language is to lawyers what a piano is to the pianist: the tool of trade”

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(2)  the irreducible normativity of conversational maxims concerning the uptake of legal provisions’ assertive content; and, (3) the limited scope of hearers’ (judges etc ) strategic, non-cooperative, behaviours First, the contextual dependence of the meaning of utterances in general, and of legal provisions in particular, is an intermittent property, depending on the presence of context-sensitive expressions; and, when it does in fact show up, it does not always require interpretation In many cases, reasonable uptake (in the form of pragmatic understanding) will do Second, the conversational maxims governing the understanding of the assertive content of speech acts – ordinary and legal alike – make up a “normative framework” that cannot always be at the mercy of hearers and interpreters (“open for grabs”); indeed, if that were the case, communication would not be possible (the “parties to a conversation could not possibly engage in a communicative interaction”) 52 Third, and finally, the Judge-Legislature conversation (JLC) is characterized by the possibility that judges adopt a “noncooperative”, “strategic”, attitude towards legislation However, noncooperative, strategic behaviours are to be regarded as phenomena at the margins of legal experience, which concern the area of implicit law, the content of positive law “that has only been implicated, but not actually asserted by the law” 53 These five theses should make clear why Marmor’s theory of legal interpretation, in so far as it is also a theory of judicial interpretation, is an instance of interpretive quasi-cognitivism or, as we may say, restricted formalism To begin, the theory maintains that judicial interpretation – broadly conceived as the process leading to the identification of the meaning of a given legal provision in view of deciding a lawsuit – sometimes is just a matter of knowledge, sometimes is, instead, a matter of evaluation and law-creation The former situation occurs whenever it simply amounts to the understanding, or, better, to the reasonable uptake, of the relevant legal texts The latter situation occurs instead whenever, due either to the semantic indeterminacy of the legal provision (because of vagueness or ambiguity), or to other problems like the presence of gaps, normative conflicts or uncertainties about pragmatic implicatures, legal interpretation proper must be performed Furthermore, Marmor’s theory exhibits a tacit commitment to a view that might be dubbed “the objective code view ” Indeed, the theory makes – sometimes tacitly – the following claims:

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Marmor (2011a), 141 Marmor (2011b), 83–104; Marmor (2014), 35–36, 43–59; “The essential feature of strategic speech – as I will use the term here – is that the speaker strives to gain some advantage by implicating more (or less) than he would be willing to make explicit […] Hearers can be similarly situated in not being willing to fully acknowledge the uptake of content that goes beyond what is explicitly asserted” (Marmor 2014, 45–59)

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There is, in any legal order, (what I shall call) an objective interpretive code (a discrete set of interpretive rules), endowed with strict normativity (i e , that hearers assume to be strictly binding), which prescribes using, as the paramount translation rule for legal provisions, the literal meaning rule, pointing to the syntactic and semantic rules of the natural language to which the legal provisions belong When enrichment, and pragmatic understanding, become necessary, the literal meaning rule must be complemented by a likewise objective set of “conversational maxims”, which are the same maxims that, according to Grice, rule over ordinary conversations 54 This integrated set (literal meaning rule plus conversational maxims), however, may prove inefficient as a guide to the assertive and/or to the implicated content of the legal provisions When this happens, interpreters who put up with such inefficiencies really do not resort to some further set of interpretive rules; they do not follow anymore any rule; rather, they exercise an interpretive discretionary power in accordance with a default rule of the objective code55

Now, quasi-cognitivism and the objective code view are disputable as genuinely descriptive and true claims about the phenomenon of legal (and judicial) interpretation As we shall see, pragmatic realism seems to provide a sound argument for this conclusion 4. Pragmatic Realism: The Critique Side Marmor claims his theory of legal (and judicial) interpretation – which, as we have seen, represents a sophisticated version of interpretive quasi-cognitivism – is supported by philosophy of language, and, as a substantive part thereof, by pragmatics As I said, there is, however, an alternative pragmatic theory of legal (and judicial) inter-

54

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Following Grice (Grice 1989), ordinary conversations are ruled by a “principle of cooperation” (roughly: “Make your contribution to the conversation adequate to the purpose and the stage of the linguistic interaction you are engaged in”) and four related groups of more specific conversational maxims The maxims of quality require each participant’s contribution to the conversation to be qualitatively adequate: e g , no statements that are known to be false or without adequate justificatory support are to be made The maxims of quantity require each participant’s contribution to the conversation to be quantitatively adequate: one must avoid saying more or less than is required by the stage of the conversation The maxims of relation require each participant’s contribution to the conversation to be relevant in content: one must avoid saying things that are not pertinent in relation to the topic of the on-going conversation The maxims of manners require each participant’s contribution to the conversation to consist in clear and ordered sentences The default rule, for instance, may run as follows: “Whenever linguistic rules and the accepted maxims of legal conversation do not make it possible to identify a determinate assertive content for the legal provision at hand, make up the solution that best fits with the overall purpose of law application”

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pretation, which is pragmatic realism Pragmatic realism is a non-cognitivist theory of legal (and judicial) interpretation, claiming that, whenever a judge, jurist or lawyerat-large determines the meaning of some legal provision for the practical purpose of solving a legal problem “correctly” (or showing how it should be solved, to solve it “correctly”), the activity performed never amounts to a pure act of cognition (like Marmor’s reasonable uptake); rather, it always involves a fundamental practical choice about the “correct” interpretive code and the “correct” interpretive resources to be used, and such a choice usually depends, in turn, on the interpreter’s own normative vision (legal ideology, Rechtsanschauung) about her legal order and the law in general 56 If we adopt the perspective of pragmatic realism, pragmatic formalism appears to be wrong and misleading as a descriptive, explanatory theory of legal (and judicial) interpretation Five arguments support this conclusion The first, second, and third argument point to the regular, unavoidable (“necessary”) presence of (constructive) interpretation well beyond the cases Marmor is disposed to concede (§§ 4 2–4 4) The fourth (§ 4 5) and fifth arguments (§ 4 6) bring to the fore the self-defeating character of Marmor’s own theory of law’s indeterminacy All arguments stem from the idea that a pragmatic view about legal interpretation, even in the variety Marmor endorses, suggests the understanding-interpretation picture of legal interpretation, pragmatic formalism stands for, should be abandoned 4 1 Pragmatics and the Theory of Legal Interpretation As a branch of semiotics and the philosophy of language, pragmatics is the theory of language from the standpoint of language users: speakers; hearers; writers; readers; authors; interpreters; senders; addressees; etc In its Gricean cast, pragmatics studies linguistic interactions (“conversations”) in view of identifying the rules (“conversational principles and maxims”) that characterize the several kinds of conversation afoot, singling out each kind as a different variety of language game57 Legal pragmatics is the theory of legal language from the standpoint of its users: legislators; legislatures; judges; officials; jurists; lawyers; and, people at large In a Gricean-like cast, legal pragmatics studies legal “conversations” in view of identifying the conversational principles and maxims that single out several kinds of language games in law, marking each one’s peculiarities What does legal pragmatics suggest about that key institutional “conversation”, the “conversation” between judges and the legislature (though, clearly, speaking of “conversation” here is talking metaphor)? 56 57

I take the forerunner of pragmatic realism to be the Danish legal theorist Alf Ross (see Ross (1958), ch IV) On Gricean pragmatics and legal interpretation, see e g Chiassoni (2000); Chiassoni (2018b)

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Marmor, maintains that the judges-legislature conversation (JLC) is a special case of ordinary, cooperative, information conveying, conversation (OC) He claims, as a consequence, that, like in any OC, context (shared contextual knowledge) and shared conversational maxims intervene in JLC to help address two problems, namely: (a) in order to saturate (“enrich”) the semantic content of context-sensitive legal provisions, in the rare cases where this may be needed; and, (b) in order to identify legal implicatures, that is to say, the implicated content of the legislative or constitutional communication Marmor holds that, in both situations, the relevant conversational maxims are the maxims of OC 58 He concedes that OC maxims are liable to be defeated by the strategic, noncooperative, purposes and behaviours of the players, emphasizing that it is precisely this possibility that makes JLC a special case of OC 59 One point must be emphasized Marmor’s view of JLC as a special case of OC is instrumental to defending three, inter-related, theses about positive law in general These are: (1) the no-ubiquity of interpretation thesis, or the idea that interpretation is something exceptional within the law (see § 3 above); (2) the idea that the content of the law – what the law is, what the law prescribes – so far as written law is concerned, is tantamount to the (definite, determinate) linguistic meaning (semantic content or enriched assertive content) of legal provisions, plus the implicit content that can be inferred from the linguistic meaning; and, (3) the idea that the content of the law is something that, ordinarily, can simply be grasped by linguistic understanding, or reasonable uptake, unless some crisis in communication occurs 60 These theses are the cornerstone of Marmor’s positivist theory of law For this reason, if Marmor succeeds in showing that they find support in philosophy of language and pragmatics, this would make the case for Marmor’s positivist legal theory stronger From the standpoint of pragmatic realism, a few critical remarks are in order, though First, as Marmor concedes, there is not just one philosophy of language, not just one pragmatics, distinguishing good legal theories from bad ones There are, instead, several and contrasting philosophies of language and pragmatics 61 Second, the business of the several philosophies of language and pragmatics is to provide true, explanatory accounts of (ordinary) language and discourse Can they 58 59 60 61

On conversational maxims, see footnote 40 above Marmor (2011b), 83–102; Marmor (2014), 35–59 The first and third ideas correspond to the interpretation-as-exception thesis and the refutation of interpretivism thesis: see § 3 above Marmor (2014), 19, 20 Think at the difference between traditional or Gricean pragmatics, on the one hand, and anti-literalist, contextualist pragmatics, on the other On this issue see e g Chiassoni (2018a)

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really provide any support to questionable theories about “what the law is”, like, e g , Marmor’s own variety of positivist legal theory?62 Third, suppose we accept the philosophy of language and pragmatics Marmor has opted for Does such a philosophical-linguistic outlook really support the three theses about the law I have listed above? Does it support, in particular, the no-ubiquity of interpretation thesis, which is the pillar of Marmor’s pragmatic quasi-cognitivism about interpretation? For present purposes, only the last question matters and will be considered In short, the answer is no It can be argued that, from the standpoint of the very pragmatic theory of language adopted by Marmor, JLC is to be regarded as a constructive interpretation game (though not necessarily of the Dworkinian sort), which judges (together with lawyers and jurists) play with the dummy (that is to say, the legislature, who provides the legal provisions), by means of a shared set of interpretive tools, which tools they may select, combine, arrange, specify, modify, revise, integrate, etc , according to the (spiritual or material) interests they happen to pursue Marmor, who purports to refute interpretivism (see § 3 above), cannot avoid running into it, though unwarily In the following, I will emphasize a few elements of incoherence and argue that pragmatic formalism is self-defeating These, in turn, represent many concessions to the ubiquity of (constructive) interpretation and non-cognitivism theses 4 2 The Interpretive Relevance of Linguistic Meaning is a Matter of Interpretation Adopting a pragmatic realist perspective allows us to see the first incoherence, casting a dim light on pragmatic formalism, showing up in the way Marmor deals with the interpretive relevance of linguistic meaning (semantic content), on the one hand, and the interpretive relevance of lawgiver’s intent, on the other Marmor presents the interpretive relevance to law of the semantic content of legal provisions as a matter of course This is argued to be so, apparently, because legal provisions are sentences expressed in a natural language; and, as a consequence, they cannot but share in the fate of any natural language expression63 Contrariwise, so far as legislative or framers’ intent is concerned, Marmor contends that Dworkin is right; the interpretive relevance of legislative or framers’ intent, name62 63

The self-delusion of thinking the philosophy of language to be capable of solving momentous problems in legal theory is analysed by Bix (2003) See, e g , Marmor (2011a), 138–139: “It is a very familiar aspect of natural language that the content communicated by a speaker is often partly determined by certain contextual and normative factors These contextual and normative determinates of linguistic contents are called the pragmatic aspects of language In other words, it is a well-recognized fact that semantics and syntax (meaning) are essential vehicles for conveying communicative content, but the content that is actually communicated is often partly determined by various pragmatic factors”

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ly, its importance in view of a legally correct reading of legal provisions, depends on evaluative considerations: A very similar line of reasoning applies to the possible roles of intention of legislatures in the interpretation of statutes and the possible role of the framers’ intentions in the context of constitutional interpretation Whether it makes sense to defer to such intentions must also depend on a theoretical argument about where value lies in the relevant genre, namely, the authority of legislation or the authority and legitimacy of a constitution Thus the conclusion so far is that the author’s-intention model of interpretation only makes sense as an instance or application of the constructive [interpretation] model.64

Now, such an asymmetric treatment seems unjustified from a theoretical standpoint If deference to legislative or framers’ intent depends on some evaluative, “theoretical argument” about authority and legitimacy, and is the outcome of a piece of constructive interpretation, why deference to semantic content (and literal meaning rule) should be something evaluation-free, something, so to speak, that stands before and above of any evaluation, and therefore outside of constructive interpretation is an open question Indeed, one may argue, the very claim according to which the interpretive value of the semantic content of legal provisions would be “above” and “outside” of the province of evaluative, theoretical argument, is not in itself an evaluative claim, one depending on some “theoretical argument,” and some piece of constructive interpretation How can we establish, as we must, the legal relevance of some interpretive resource (be it literal meaning, legislative intent, the purpose of the law, consistency with the constitution, etc ) without engaging in an evaluative “theoretical” argument? How can we do that, without taking sides, and selecting (what we are ready to defend as) the “legally correct” translation rules (interpretive canons, methods, rules, and directives) and the “legally correct” resources for reading the law “correctly”? 4 3 Distinguishing Art, Law and Ordinary Conversation: An(other) Interpretive Question The preceding argument, from the interpretive character of the judgments about the interpretive relevance of linguistic (semantic) meaning, meant to highlight the incoherence that besets pragmatic formalism, ended with a few rhetorical questions To these questions Marmor’s theory provides a reply: the law (and JLC) – so the argument goes – is closer to ordinary conversation, than, say, to art, where constructive interpretation and evaluations are indeed ubiquitous

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Marmor (2011a), 105, italics added

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A work of art is not intended to convey a determinate communicative content that can simply be understood (or misunderstood); it is created with an intention to be somewhat indeterminate in content, or ambiguous in various ways, open to various interpretations None of this, however, applies to law In fact, art and law could not be less similar in this respect Legal instructions are meant to generate concrete results, providing people with particular reasons for action, thus aiming to affect our conduct in some specified ways The level of specification may vary, of course; some laws are very specific, instructing specific modes of conduct or avoidance of them, while others are much more general And then, the more general the legal norm is, the more likely it is that circumstances will arise where interpretation is called for But, generally speaking, it is not in the nature of law, as it is in the nature of art, to become a cultural object that is detached from the specific communicative content it is meant to convey. Art is there to be interpreted; law is there to be acted upon. Are there some other features unique to law that would make it the case that interpretation is always called for?65

Is there any reply available to such apparently convincing statements? There is in fact something of a paradox here In Marmor’s defence of the idea of an evaluation-free, interpretation-free, zone concerning the identification of law, the need for making interpretive evaluations appears in an even stronger light Let us see First, in the passage just quoted, where Marmor establishes the essential character (the nature, the point, the purpose) of (the practice of) law, and contrasts it with the essential character of art, Marmor is clearly performing an act that, in Dworkin’s and Marmor’s own terms, qualifies as a piece of constructive interpretation Indeed, Marmor is determining what the point, the purpose, the essential character of law is, and contrasts it with the (assumed) point, purpose, essential character of art Second, suppose Marmor retorts that such presumed “constructive interpretation” of the nature (point, purpose, and essence) of law is really no interpretation at all, being rather the ascertainment of something that is altogether “evident” to everybody Who would dare to claim that the laws are made for the purpose of being open to interpretations? Who would deny that the laws are done for the purpose of “generating concrete results”, of “guiding behaviours”, or of “being acted upon”? Perhaps, Marmor is right; nobody could deny such platitudes Unfortunately, however, they are perfectly empty; and that explains why they are so “evident” and “undeniable” Consequently, once we have accepted this platitudinous view about the law (about its evident nature, essence, purpose, and point), we still have to solve significant problems: what does it mean that the law’s purpose is “generating concrete results”? How the “guiding behaviours” purpose is to be understood and carried out? How the “acting upon” purpose is, again, to be understood, and, if I may say so, acted upon? If “the purpose” of the law

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is “generating concrete results”, what about the very abstract, generic, and indeterminate constitutional clauses we commonly find in constitutional charters? Are they not law? All these questions, and many more that could be raised, are not open for evaluation-free, practical-commitment-free, answers Marmor tries to throw constructive interpretation out of the window of the “Art v Law” divide However, it always comes back This happens, unavoidably, as soon as the empty platitudes, which would make law a very different enterprise from art, must be set to work Third, the whole of Marmor’s argument has an unmistakable scent of naturalistic fallacy Indeed, Marmor pretends to derive, from the assumedly evident nature of law, practical consequences as to the (proper) way of dealing with law for the people who have to interpret and comply with it 4 4 Which Easiness for Easy Cases? Another weak point in pragmatic formalism’s defence of the understanding/interpretation divide, and the related variety of pragmatic formalism, has to do with Marmor’s theory of easy cases Marmor cites easy cases, an evident phenomenon in everyday legal reality, as witnesses on behalf of his view: the truth is that both the laymen’s picture of how determinate the law is, and the law students’ impression of how indeterminate it is, are distorted The law is much less clear than people tend to think, but it is much more clear than law students are led to believe, because they spend most of their studies focusing on the difficult or problematic cases that tend to reach the appellate courts 66

When the law is clear, so the argument goes, there is no need for interpretation The phenomenon of clarity would show: first, that interpretation  – and the evaluations going along with it – is not a ubiquitous, but, rather, a circumscribed, phenomenon in law; and, second, that there are cases where judges simply find the law, by means of understanding or reasonable uptake, and do not need to make it The argument seems invincible, and has appeared so to many scholars Unfortunately, the impression is wrong This is because the notion of an easy case Marmor employs is questionable Marmor characterizes an “easy case” as follows: An “easy case” […] means that the relevant legal norm can simply be understood, and applied to the particular case without the mediation of the interpretation of the norm; we just understand what the law says, and know that it applies, or not, to the case at hand 67

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Marmor’s concept of an easy case is open to different readings In fact, a legal provision (in Marmor’s terms: a “legal norm”) “can” make the case at hand “easy”, i e , can simply “be understood and applied”, in no less than three different ways Linguistic easiness: Through a simple linguistic understanding or reasonable uptake, the relevant legal provision is capable of providing the judge with a legal norm, corresponding to its semantic content or literal meaning, under which the individual case at hand (say, the iron-wheeled chicken coop of Mr Burr: see § 2 2 above) clearly can, or cannot, be subsumed Methodological easiness: If a judge (a) provides a linguistic reading of the relevant legal provision, and (b) applies the semantic content (literal meaning) so identified to the case at hand, her way of proceeding is fully justified according to an interpretive code the judge may invoke as the “proper” or “correct” code to be used Notice that from the perspective of this notion of an easy case, stopping at the linguistic understanding of a legal provision is not only a linguistically correct move; it is also a methodologically correct move, that is, one that is allowed for, and justified by, the rules of the interpretive code the judge deems proper (“correct”, “right”) to use Such a code, if we look at contemporary legal orders and cultures, would usually establish a defeasible presumption of legal correctness in favour of the linguistic meaning of legal provisions: one that can be defeated where the linguistic meaning is either indeterminate, or, in any case, legally “incorrect”, “inappropriate”, “inadequate”, etc One point must be emphasized The outcome of the judicial activity in a methodologically easy case is, by hypothesis, tantamount to the semantic content of the relevant legal provision Such an outcome, however, does not depend on linguistic understanding only On the contrary, it also depends on a reflexive activity, by means of which the judge considers whether staying with the semantic content of a legal provision is methodologically justified, or not This reflexive activity, which goes beyond linguistic understanding, is part of what, in legal discourse, usually goes under the name of “interpretation” Axiological easiness: If a judge (a) provides a linguistic reading of the relevant legal provision, and (b) applies the semantic content (literal meaning) so identified to the case at hand, her way of proceeding will be praised as endowed with substantial value (“reasonable”, “good”, “proper”, fully “justified”, “correct”, etc ) by fellow judges, and/ or competent jurists, and/or society-at-large, etc Notice that, from the perspective of this notion of an easy case, stopping at the linguistic understanding of a legal provision is not only a linguistically correct move It is also a course of action that is in tune with (allowed, approved, or justified by) the normative, ideological, axiological, attitudes of the relevant interpretive community, the public opinion, etc Here again, the judge who applies a legal provision according to its semantic content does not only perform the supposedly un-reflexive activity of linguistic understanding She also performs the reflexive activity of considering the axiological viability of that semantic content as the legally correct meaning of the legal

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provision at hand This reflexive activity is, again, what in legal discourse is usually captured by the term “interpretation” The different notions of “easy case” I have just brought to the light suggest a few considerations: 1 Marmor’s notion of an easy case apparently mirrors the first view; it makes the easiness of a case to be a purely linguistic property, fully independent from interpretive methods and legal (and social) ideologies 2 These latter ingredients, however, are a substantive part of the adjudication business, at least in our present legal cultures As Frederick Schauer points out, according to juristic common sense an easy case is not simply a linguistically clear case It is, rather, a linguistically clear and substantially sensible case That is to say, it is a case where the linguistically clear meaning of the relevant legal provision is, at the same time, not at odds with purpose, not at odds with superior legal principles, not at odds with morality, justice and convenience 68 3 Consequently, Marmor’s notion of an easy case flies in the face of juristic common sense Furthermore, contrary to Marmor’s opinion, juristic common sense suggests judicial interpretation to be at work also when an easy case is being decided So far as judges are concerned, the identification of the general norm to be applied to a case at hand never is just the outcome of an un-reflexive process of linguistic understanding 69 Marmor’s conceptual framework however, due to its commitment to a sharp divide between understanding (reasonable uptake) and interpretation (proper), is not even equipped to capture this aspect of adjudication In fact, it rules it out altogether 4 5 The Sting of Normative Conflicts Pragmatic formalism uses the term “interpretation” broadly, to refer to the activity that is needed for dealing with whatever sort of indeterminacy may upset the law 70 Normative conflicts (antinomies), as we have seen, are listed among the situations calling for interpretation, together with gaps, vagueness, ambiguity, and pragmatic uncertainties (see § 3 above) From the standpoint of pragmatic realism, however, Marmor’s pragmatic formalist account of normative conflicts raises several concerns 71 First, Marmor claims interpretation is needed to cope with antinomies In so claiming, however, he does not notice that, as he conceives of them, they are cases of a gap

68 69 70 71

See Schauer (1984) 399, 414–423, 430–31; see also Dascal, Wroblewski (1988), 203–224 Perhaps, that may be the case with ordinary people, but that’s another story, to be carefully considered Marmor (2011a), 145; Marmor (2014), 107–109 Marmor (2011a), 145–146; Marmor (2014), 107–109, 118–120

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in the law Indeed, he maintains that, whenever a determinate and pre-established conflict-solving criterion is available, there is really no conflict afoot; trousers have no holes, insofar as there are tailors capable of putting up with them! Second, Marmor seems to overlook that normative conflicts are interpretationdependent, in the common juristic sense of “interpretation” In fact, no conflict can be identified unless on the basis of some previously selected interpretive code: be it even the “simple linguistic understanding”, or “reasonable uptake”, code that Marmor endorses Third, Marmor seems to overlook that the judges’ preoccupation with normative conflicts, which Marmor correctly takes into account, suggests that there is always something more than simple linguistic understanding behind the judicial application of law It suggests, that judicial interpretation, in the common juristic sense, is at work even when the relevant legal provision has a clear and determinate semantic content that can be identified by means of linguistic understanding This is so because, once the semantic content has been identified, once the “literal” norm has been grasped, before applying it to the case at hand it must be evaluated in relation to other relevant norms of the system, in order to “see” whether any normative conflict exists This consideration suggests that Marmor’s reasonable uptake/interpretation structural model of the judicial identification of the normative premises of judicial reasoning must be abandoned, and replaced by a model where interpretation is general The point deserves a bit more of elaboration The judicial application of a legal norm to an individual case at hand presupposes that the norm to be applied has been identified If the norm is a statutory norm, the starting point for its identification consists in identifying the text of the norm, including: the statutory clause; the legal provision of which the norm is; generally speaking; and the meaning This is something Marmor does not recognize, taking this preliminary activity for granted His reasonable uptake/interpretation model encompasses three stages (see § 3 above) The semantic understanding stage, the pragmatic understanding stage, and, finally and eventually, the interpretation stage The first stage is devoted to the semantic understanding of the legal provision at hand and represents a necessary step If the outcome is a clear semantic content, which is immediately applicable to the case at hand, the identification process is over It may happen, however, that the semantic content needs to be pragmatically saturated (enriched) The judge moves then to the second stage Here a process of pragmatic understanding is performed, which may also cast light upon the implicated side of the full communicative content of the legislative speech act It may happen, however, that reasonable (semantic and pragmatic) uptake does not lead to one determinate result, either in itself, or in relation to the individual case at hand In that event, a third stage is needed This is the stage of interpretation

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proper, where, fatally, judicial interpretation must be guided by some normative view about the proper allocation of power between judiciary and legislature 72 Now, it should be apparent why Marmor’s theory of normative conflicts is incoherent in light of Marmor’s reasonable uptake/interpretation dualism Indeed, we may query, how do judges come to “know” that a certain semantic content is at odds with some other, superior, norms of the system? How do they proceed to identify normative conflicts, if any, calling for interpretation (in Marmor’s sense)? Clearly, that would be altogether impossible if the judges just stayed with the simple linguistic understanding of isolated legal provisions Normative conflicts cannot be identified outside of a systemic, holistic, consideration of law This, in turn, makes the idea of the application of law as depending, in many cases, on a simple linguistic understanding, a sheer illusion 4 6 The Sting of Pragmatic Indeterminacies Pragmatic indeterminacies are situations of context-dependent uncertainty about the full communicative content of a legislative or constitutional speech act Marmor pays particular attention to two varieties of pragmatic indeterminacy, the mismatch problem (as I shall call it) and the legal implicatures problem From the standpoint of pragmatic realism, it can be argued that, while addressing both problems, Marmor endorses an interpretivist stance, which flies in the face of the rigorous reasonable uptake/interpretation to which he is committed 4.6.1 Mismatch Problems A mismatch problem arises any time “what the words of the law say” apparently does not correspond to “what the law says (means, asserts)”73 It is, in other words, a problem of mismatch between the semantic content (sentence meaning) and the assertive content (author’s intended meaning) of a legal provision Marmor articulates his way out from such problems: Does it happen in the legal context that the law asserts something different from what it says? It could happen, but not very frequently First, lawmakers would certainly try to avoid this since it would be too easy to misunderstand what they meant Second, in the legal context, we would normally lack sufficiently rich contextual background to enable the conclusion that what the law asserts is obviously not what it says Consider, once again, the “no vehicles are allowed in the park” rule Suppose, for example, that the legislature of this

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Marmor (2014), 107–109 Marmor (2014), 28

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rule had taken it for granted that only motor vehicles are meant here and that is the content it intended to assert One can imagine some circumstances in which it would be obvious that this is the case, but those would have to be pretty special circumstances, knowledge of which is shared by all parties concerned We can imagine, for example, that the “no vehicles in the park” is enacted as a response to specific complaints about pollution, that this is known to be the case, and maybe forms part of a larger legislative measure that curbs motor vehicle pollution – then, yes, perhaps it is obvious that the ordinance is confined to motor vehicles Otherwise, it is likely to remain an open question 74

This passage supports the conclusion that a purely linguistic notion of an easy case and the reasonable uptake/interpretation model of the judicial identification of the normative premise are wrong, since they provide theoretically bad devices unable to cope with actual judicial application of law A couple of remarks are in order 1 Though we may find the cooperative conversation metaphor appealing, a judge is not engaged in a conversation with the legislature They are not together in the same place, chatting about the law to be applied, nor are they connecting by phone or any other long-distance communication device They cannot talk to each other They do not even know each other Consequently, how can a judge conclude that a mismatch between the semantic content and the assertive content of a piece of legislation exists, unless she goes beyond both linguistic understanding, and the OC notion of a conversational context, to venture into the province of juristic theories, legal ideologies, legal policy, and legal interpretation? 2 Once she has passed that theoretical boundary, she will find herself in another world Here, the mismatch problem is raised any time there are good axiological reasons for getting rid of the literal meaning of a legal provision at hand, and replacing it with a wider or a narrower meaning, considered the “legally correct” one Here, the technique of corrective interpretation is involved, with the twin maxims “the law has said more than it wanted to say” (lex magis dixit quam voluit), and “the law has said less than it wanted to say” (lex minus dixit quam voluit) To conclude, the identification of a mismatch problem undermines reasonable uptake; it necessarily depends on some piece of holistic and purposive interpretation 4.6.2 Legal Implicatures Problems A problem of legal implicature arises whenever there is uncertainty about the implicated content of a legislative or constitutional speech act Suppose the legislature enacts a law saying “All X ought to ƒ, unless F, G, or H ” According to Marmor, from the stand-

74

Marmor (2011a), 150–151

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point of the maxims of OC (in particular, the maxims of quantity),75 such legislation has a clear conversational implicature; it implies, conversationally, that only if F, G, or H does the X not have the duty to ƒ It often happens, however, that courts do not read legal implicatures that way; that they do not (want to) see the implicature and read instead such legal provisions as providing an incomplete, open list of exceptions The judicial decision in Holy Trinity is a case in point To be sure, the fact that judges tend to ignore these kind of implicatures does not mean that the implicature is not there; judges tend to ignore them because they are skeptical, and perhaps rightly so, of a legislature’s ability to determine in advance all the possible justified exceptions to the general norm enacted But again, this testifies to the fact that the discourse between the legislature and the courts is not necessarily a cooperative business, and that the division of labour between legislatures and courts is a morally-politically contentious issue 76

By referring to the noncooperative, strategic side of JLC, Marmor admits that JLC is a different sort of “conversation” from OC He seems to think, as we have seen (§ 3), that the province of strategic behaviours and “morally-politically contentious issues” regarding the division of labour between courts and legislature, the province where the JLC is not cooperative, concerns the identification of the legal implicatures of the asserted content of legal provisions But why should that be the case? Why couldn’t a noncooperative attitude held by the judges also affect the identification of legal provisions’ asserted contents? Marmor does not see that his admission about a noncooperative dimension in JLC is tantamount to admitting that interpretivism is right Interpretation – in the form of a reflexive and evaluative activity concerning the “legally correct” meaning and the “legally correct” implicatures of an enacted provision – is ubiquitous all over the daily working of legal orders 77 5. Pragmatic Realism: The Proposal Side The failure of pragmatic formalism is the failure of an interpretive theory worked out by combining philosophy of language and pragmatics with a communication model of legislation centred on the distinction between the heterogeneous activities of understanding (reasonable uptake) and interpretation (proper) 78 It is time to learn from this

75 76 77 78

See footnote 40, above Marmor (2008), 30 This conclusion finds support in many passages by Marmor: see, e g , Marmor (2011a), 151, 154, 157; Marmor (2014), chs 5–6 In ch 6, Marmor deals with constitutional interpretation in a thoroughly interpretivist way Marmor (2014), 11–12

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failure and explore the viability of pragmatic realism as an alternative theory of legal, and, in particular, judicial, interpretation Pragmatic realism can be characterized as the combination of pragmatics (a pragmatic perspective on legal language and interpretation) with interpretivism (the idea of the ubiquity of interpretation as a value-laden, reflexive, activity in the everyday working of legal orders) It is not possible, here, to present pragmatic realism in its full-fledged form I will, therefore, limit myself to identifying the most salient elements concerning its view of judicial interpretation 1 Two Views about the Judge-Interpreter In the background of pragmatic realism (which is a non-cognitivist theory) and pragmatic formalism (which is a quasi-cognitivist theory), there are two alternative views of the judge-interpreter According to pragmatic formalism, the judge-interpreter follows OC through linguistic “understanding” (“reasonable uptake”) of legal texts; and if, and only if, something goes wrong (vagueness, ambiguity, gaps, antinomies, etc ), she turns to the reflexive, speculative attitude inherent to “interpretation” The judge-interpreter, here, is an intermittent speculator On the other hand, according to pragmatic realism every activity concerning the determination of the meaning of a legal text to be applied, be it understanding or interpretation proper, is performed in the shadow of a reflexive, speculative, background attitude The judge-interpreter, here, is a continuous speculator Linguistic understanding is never a purely spontaneous undertaking; it occurs instead, always by design When a judge stays with the semantic meaning of a legal provision, she never simply “understands” it, but always also decides to stay with her understanding, if sufficient systemic, holistic, reasons make that course of action legally justified This design dimension of understanding, which in hermeneutical theory is captured by the idea of the “postulate of reflexivity” ruling over the “pre-comprehension – text” hermeneutic circle, is totally overlooked by pragmatic formalism 2 Two Views about the Pragmatic Model of the Interaction between Judges and Legislatures (the “Judges-Legislature Conversation”) Pragmatic formalism, as we have seen, is committed to a communication model of JLC, one that presents such a “conversation” as of the same sort as ordinary conversation, with strategic behaviours showing up at the edges where problems of legal implicatures arise (see § 3 above) Pragmatic realism maintains that if our task is to work out a (genuine) general theory of legal (and judicial) interpretation, no single pragmatic model about JLC can be identified as theoretically correct a priori, or by making appeal to “the nature of linguistic communication” Pragmatic realism claims, furthermore, that, if we cast a cold glance on the legal experience of contemporary municipal legal orders, the pragmatic model of JLC that seems most in tune with it is something like a model informed by a different account of the “levels of meaning” of legal provisions, a different account of the basic “ingredients” of JLC, and, from the standpoint of its “maxims”, by the Prin-

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ciple of Prudent Interpretation and a few related maxims, as we shall see in a moment (see points 3 , 4 and 5 below) 3 Three Levels of Meaning of Legal Provisions Pragmatic formalism singles out, as we have seen, three levels, and sorts, of meaning in relation to any legal provision; the linguistic or semantic meaning, the speaker’s explicit meaning (assertive content), and the speaker’s implicit meaning (see § 3 above) From the standpoint of pragmatic realism as a theory of judicial interpretation, the proper way of accounting for the several levels of meaning of any given legal provision requires a different conceptual and terminological apparatus, one that singles out (a) sentence meaning, (b) explicit systemic (holistic) meaning, and, with regards to the full communication content of an institutional (legislative or constitutional) speech act, (c) implicit systemic (holistic) meaning Sentence meaning is the literal, conventional, a-contextual meaning, amounting to the purely semantic content of a legal provision Explicit systemic meaning is the meaning (assertive content, prescriptive content) of a legal provision, from the standpoint of the legal system and the proper way of interpreting its provisions Explicit systemic meaning can be different from sentence meaning Implicit systemic meaning, finally, is the meaning or communication content that is implicated by the explicit systemic meaning of a legal provision on the basis of “proper” integration rules These rules, so far as the law is concerned, typically include the directives of analogical reasoning, a fortiori reasoning, a contrario or e silentio reasoning, naturalistic reasoning, and reasoning from legal (constitutional, fundamental, and general) principles 4 The Ingredients of the Judges-Legislature Conversation Pragmatic formalism, as we have seen, adopts a Gricean legal pragmatics, featuring JLC as a sort of ordinary conversation ruled by Gricean maxims, with strategic behaviours at the margins (see § 3 above) Pragmatic realism considers the “Gricean project” a valuable contribution to the understanding of JLC, insofar as it requires inquiring into, and reconstructing, the principle and maxims that rule upon it It maintains, however, a fresh inquiry to be needed, one that, so far as JLC is concerned, requires rejecting the conversational metaphor From the standpoint of pragmatic realism, two properties make JLC distinct from OC First, JLC is a “conversation” with a dummy, the legislature, which cannot reply, at least not immediately A new law is needed, either to cancel any “wrong” judicial interpretation, or to “put the mutinous judiciary to its place” Furthermore, such a law needs to be interpreted, and its legal effects usually depend on numerous factors, including, e g , the principle against ex post facto laws This suggests that JLC is a game that judges play with authoritative texts, within the contingent limits set by public opinion and the ideologies and methodologies at work in the legal and political culture of the day

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Second, in JLC, judges make use of four basic kinds of items: (1) a set of legal provisions, which are provided by legislative enactments; (2) a toolbox containing translation rules, which, together with method rules, represent the building-blocks of interpretive codes as discrete sets of interpretive rules79; (3) a multifarious set of interpretive resources, including judicial precedents and juristic essays; and, (4) a principle and maxims concerning the composition (formation) and application of interpretive codes In the text or footnotes, I have already cast some light on the first three items The latter needs a bit more elaboration 5 The Principle and Maxims of Judicial Interpretation. According to pragmatic realism, when judges construct the interpretive code they are going to use for identifying and/ or justifying the “correct” legal meaning of a legal provision, including the construction of the rules governing method and translation, their activity is ruled by five prescriptions In the Gricean terminology of “principles” and “maxims”, they are: the Principle of Prudent Interpretation; the Combination Maxim; the Precisification Maxim; the Resource Selection Maxim; and, finally, the Integration Maxim The Principle of Prudent Interpretation, or No-Preposterousness Principle, states that, in observance of the adjudication legality principle (“Judges ought to adjudicate according to the law”, “Iudex iudicare debet secundum ius”), judges are empowered with the maximum interpretive discretion, compatible with the need to present their interpretive outputs as being imposed by, or derived from, legal materials It is a very different principle from the Gricean principle of interpretive cooperation Indeed, it allows for a wide range of interpretive attitudes and goals, some of which – at least from certain perspectives – are not cooperative at all For instance, Italian judges in the late 1960s interpreted statutory law according to a principle where cooperation 79

An interpretive code is made of translation rules and method rules Translation rules provide criteria for translating legal provisions into explicit norms, on the basis of the interpretive resources they point to These resources are, for instance, linguistic conventions (rules of literal interpretation), legislative intent (rules of intentional interpretation), the “true” purpose of the legal provision to be interpreted, or of the part of positive law it belongs to, or of positive law as a whole (rules of teleological or purposive interpretation), other rules and principles in the legal order (rules of systematic interpretation), the previous interpretation of influential interpreters (rules of authoritative interpretation), the principles and values to be found “in the nature of things” or in the precepts of the “true” morality (rules of heteronomous interpretation) Method rules encompass, in turn, purpose rules, selection rules, procedure rules, preference rules, and default rules A purpose rule establishes which is the purpose the interpretation of a certain (type of) legal provision should serve A selection rule selects which translation rules should be used A procedure rule establishes the order in the use of translation rules, when two or more are to be used A priority rule establishes the order of priority when translation rules support alternative meanings for the same legal provision A default rule, finally, instructs interpreters on how to proceed to determine the meaning of a legal provision, when translation, procedure or preference rules have run out I offer a more detailed account of interpretive codes in Chiassoni (2018b)

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was to be had, not with the actual, historical, flesh and blood, legislature, but, rather, with the “good legislature”, that is to say, to a legislature that was presumed to make laws that were respectful of formal justice, logical consistency, instrumental rationality, non-redundancy, linguistic determinacy, systemic arrangement, and completeness 80 Likewise, in a constitutional state, judges often adopt a principle of interpretive cooperation with the Constitution (constitutional law and principles), which may result in adopting a principle of interpretive non-cooperation, or a principle of uncharitable interpretation, towards ordinary, sub-constitutional, legislation Like in the Gricean model, the four maxims of judicial interpretation have implied maxims of detail: they entitle judges to specific courses of action, within the (loose) limits set by the principle of prudent interpretation 81 The Combination Maxim allows each judge to combine the translation rules available to form the interpretive code that – in the light of the case at hand, the principle of prudent interpretation, and the purpose she thinks proper to pursue – she considers to be the best in order to present her interpretive output as the legally correct one The Precisification Maxim allows each judge to precisify available translation rules, in order to adapt them to the decisional needs of the case at hand, always within the limits of the principle of prudent interpretation The Resource Selection Maxim allows each judge to select the interpretive resources needed to apply the previously selected translation rules to favour the identification of what she considers the legally correct interpretive output, again within the limits of the principle of prudent interpretation Finally, the Integration Maxim allows each judge to add new translation rules to the toolbox of the already available ones, provided the principle of prudent interpretation is, again, respected 6 The Context of Legal Provisions. According to pragmatic formalism, as we have seen, the “context” of JLC concerning the judicial interpretation of any piece of written law whatsoever, is an objective background of shared information, or shared data, as the standard pragmatics of OC maintains (see § 3 above) Pragmatic realism maintains such a view to be wrong, so far as we are looking for a justifiable and accurate theoretical account of judicial interpretation of legal provisions in contemporary legal experience Pragmatic realism claims that, due to the specificity of JLC, the interpretive “context” of legal provisions, far from being an objective set of data shared by judges and the legislature, corresponds, rather, to the set of data that each judge-interpreter herself selects as relevant to the interpretation of the legal provisions at hand These data are 80 81

Bobbio (1971), 243–249 By way of a thought experiment, I have imagined the maxims of a Gricean code of judicial interpretation in Chiassoni (2000), 79–99, at 95–97 See also Chiassoni (2018b)

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nothing else but interpretive resources They are identified based on the translation rules of the code that the judge has constructed to perform her task Among the prominent factors that bear on the determination of the context of any legal provision, are the interests to which the interpreter is committed: material and/or ideal interests; including principles of justice; religious beliefs; ideologies about the proper role of the judiciary according to the constitution; etc 7 The Pragmatic Enrichment of Legal Provisions. From the standpoint of the communication model of legislation adopted by pragmatic formalism, as we have seen, there is little room for pragmatic enrichment in JLC (see § 3 above) According to pragmatic realism, however, such a conclusion follows from a Procrustean projection of OC, with its rules of pragmatic enrichment, upon judicial interpretation 82 If we look at the way judicial interpretation works, it appears that pragmatic enrichment has a wider scope (concerning, for instance, making explicit the “unarticulated components” of legal provisions), and depends, ultimately, on the translation rules the judges decide to use 8 Legal Implicatures. Pragmatic formalism, as we have seen, presents the legal implicatures of legal provisions’ assertive content as data out there that judges often overlook for strategic reasons (see § 3 above) Pragmatic realism, which rejects the Gricean communication model of JLC endorsed by pragmatic formalism, propounds a different view Roughly speaking, the view centres on the idea of methodological and axiological dependence of legal implicatures; which implicatures a legal provision has is something that depends on the integration rules, concerning the identification of “implicit” or “implicated” law, that are selected and applied by judges and by the integration resources they resort to 83 Implicit, unwritten laws are not an objective reality out there, waiting to be grasped by faithful interpreters, as pragmatic formalism suggests They are, rather, the dependent variables of judicial (and juristic) axiological and methodological options References Alchourrón, C E , Bulygin, E (1996) Norma jurídica, in Garzón Valdés, E , Laporta, F J , eds (1996), 133–147 Bentham, J (1782) Of Laws in General, Edited by H L A Hart, London: University of London The Athlone Press, 1970 Bentham, J (1789) An Introduction to the Principles of Morals and Legislation, Edited by H L A Hart, London: Methuen, 1982

82 83

On theoretical Procrusteanism, see Chiassoni (2000); Chiassoni (2018b) On integration rules, see Chiassoni (2016)

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Bix, B (2003) Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy?, in “Ratio Juris”, 16, 3, 281–295 Bobbio, N (1950) Scienza del diritto e analisi del linguaggio, in Bobbio, N (2011), 1–31 Bobbio, N (1971) Le bon législateur, in “Logique et analyse”, 53–54, 243–249 Bobbio, N (2011) Saggi sulla scienza giuridica, Turin: Giappichelli Carnap, R (1966) An Introduction to the Philosophy of Science, Edited by M Gardner, New York: Basic Books Carrió, G R (1965) Notas sobre derecho y lenguaje, Buenos Aires: Abeledo Perrot Carston, R (2013) Legal Texts and Canons of Construction: A View from Current Pragmatic Theory, in Freeman, M , Smith, F Eds (2013), 8–33 Chiassoni, P (2000b) Interpretive Games: Statutory Construction Through Gricean Eyes, in P  Comanducci, R Guastini (eds ), Analisi e diritto 1999. Ricerche di giurisprudenza analitica, Torino, Giappichelli, 2000, 79–99 Chiassoni, P (2008) On the Wrong Track: Andrei Marmor on Legal Positivism, Interpretation, and Easy Cases, in “Ratio Juris”, 21, 2 Chiassoni, P (2013) Wiener Realism, in Duarte d’Almeida, L , Gardner, J , Green, L Eds (2013), 131–162 Chiassoni, P (2016) Legal Interpretation without Truth, in “Revus Journal for Constitutional Theory and Philosophy of Law”, 29, 93–118 Chiassoni, P (2018a) Taking Context Seriously, in “Analisi e Diritto”, 1/2018, 31–59 Chiassoni, P (2018b) Interpretive Games Revisited, in P Chiassoni, P Comanducci, G B Ratti (eds ), L’arte della distinzione. Scritti per Riccardo Guastini, vol   2, Madrid-Barcelona-Buenos Aires-Saõ Paulo, 2018 Dagan, H (2017) Contemporary Legal Realism, in Sellers, M and Kirste, S (eds ), Encyclopedia of the Philosophy of Law and Social Philosophy, Springer Science and Business Media B V , 2017 Dascal, M , Wróblewski, J (1988) Transparency and Doubt: Understanding and Interpretation in Pragmatics and in Law, in “Law and Philosophy”, 7, 203–224 Duarte d’Almeida, L , Gardner, J , Green, L Eds (2013) Kelsen Visited. New Essays on the Pure Theory of Law, Oxford and Portland, Oregon: Hart Dworkin, R M (1985) A Matter of Principle, Cambridge, Mass : Harvard University Press Dworkin, R M (1986) Law’s Empire, London: Fontana Endicott, T (1994) Putting Interpretation in Its Place, in “Law and Philosophy”, 13, 1994, 451–479 Endicott, T (2016) Law and Language, in Edward N Zalta (ed ), Stanford Encyclopedia of Philosophy, First published Thu Dec 5, 2002; substantive revision Fri Apr 15, 2016 Freeman, M , Smith, F Eds (2013) Law and Language, Current Legal Issues 2011, Oxford: Oxford University Press Gardner, J (2012) The Law as a Leap of Faith, Oxford: Oxford University Press Garzón Valdés, E , Laporta, F J Eds (1996) El derecho y la justicia, Enciclopedia Iberoamericana de Filosofia, 11, Madrid: Trotta Green, L (2012) Introduction, in Hart, H L A (1961), xv–lv Grice, P H (1989) Studies in the Way of Words, Cambridge, Mass  – London, England: Harvard University Press Guastini, R (2011) Rule-Scepticism Restated, in L Green, B Leiter (eds ), Oxford Studies in Philosophy of Law, Oxford, Oxford University Press, 138–161 Guastini, R (2015) A Realistic View on Law and Legal Cognition, in “Revus Journal for Constitutional Theory and Philosophy of Law”, 27, 2015, 45–54

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Jhering, R von (1877) Der Zweck im Recht, Second Edition, 1884, Italian Trans edited by M G  Losano, Lo scopo nel diritto, Torino: Einaudi, 1972 Hart, H L A (1958) Positivism and the Separation of Law and Morals, in Hart, H L A (1983), 49–87 Hart, H L A (1961) The Concept of Law, Third Edition, With a Postscript edited by P A Bulloch and J Raz And with an Introduction and Notes by L Green, Oxford: Oxford University Press, 2012 Hart, H L A (1983) Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press Hume, D (1777) An Enquiry concerning Human Understanding, Edited with an Introduction and Notes by P Millican, Oxford: Oxford University Press, 2007 Korta, K, Perry, J (2015) Pragmatics, in Edward N Zalta (ed ), Stanford Encyclopedia of Philosophy, First published Tue Nov 8, 2006; substantive revision Thu Apr 2, 2015 Leiter, B (2013) Legal Realisms, Old and New, in “Valparaiso University Law Review”, 47, 949–963 Marmor, A (2005) Interpretation and Legal Theory, Second edition, Oxford and Portland, Hart Publishing Marmor, A (2011a) Philosophy of Law, Princeton and Oxford, Princeton University Press Marmor, A (2011b) Can the Law Imply More Than It Says? On Some Pragmatic Aspects of Strategic Speech, in Marmor, A , Soames, S Eds (2011), 83–104 Marmor, A (2014) The Language of Law, Oxford, Oxford University Press Marmor, A , Soames, S Eds (2011) Philosophical Foundations of Language in the Law, Oxford: Oxford University Press Quine, W V (1964) Necessary Truth, in Quine, W V (1976), 68–76 Quine, W V (1976) The Ways of Paradox and Other Essays, Revised and enlarged edition, Cambridge, Mass , and London, England: Harvard University Press Raz, J (1979) The Authority of Law. Essays on Law and Morality, Second Edition, Oxford: Oxford University Press, 2009 Raz, J (1994) Ethics in the Public Domain. Essays in the Morality of Law and Politics, Oxford: Clarendon Press Raz, J (2009) Between Authority and Interpretation. On the Theory of Law and Practical Reason, Oxford: Oxford University Press Ross, A (1958) On Law and Justice, London: Stevens & Sons Scarpelli, U (1969) Semantica, morale, diritto, Turin: Giappichelli Schauer, F (1984) Easy Cases, in “Southern California Law Review”, 58, 1984 Stavropoulos, N (2014) Legal Interpretivism, in Edward N Zalta (ed ), Stanford Encyclopedia of Philosophy, First published Tue Oct 14, 2003; substantive revision Tue Apr 29, 2014 Tarello, G (1974) Diritto, enunciati, usi. Studi di teoria e metateoria del diritto, Bologna: Il Mulino Williams, G L (1945) Language and the Law – IV, in “Law Quarterly Review”, 61, 384–406 Wróblewski, J (1964) The Problem of the Meaning of the Legal Norm, in Wróblewski, J (1979), 1–26 Wróblewski, J (1979) Meaning and Truth in Judicial Decision, Helsinki: Tieto

Some Thoughts on the Value and Purpose of Law M N S Sellers Nothing is more gratifying than the company of those we love No challenge is more stimulating than the discourse of those we admire No inspiration is more compelling than the brilliance of learned minds Such are the gifts of my friends, the scholars who correct and instruct me in this generous volume I am profoundly grateful Legal and Social Philosophy have been our common inquiry, our shared experience, our endless fascination for decades, as for our predecessors for centuries before us The conversation concerning the nature, the value, and the ultimate purpose of law will never end No resolution is final, because the circumstances of the human condition that give rise to law differ throughout the world, and across time, and must respond to circumstances Yet human nature unites us – and certain principles have universal value Or so I have argued My colleagues do me the kindness of listening, and honor me with corrections and criticism My aim has been to describe in clear and uncomplicated terms the value and purpose of the concept that in English we call “law,” but that also exists under other names in other languages and in every human society Such studies begin as description, but cannot avoid their inherently prescriptive implications, explaining both what “law” means in ordinary usage and why this meaning is necessary and ubiquitous, even in the arguments of those who purport to reject it Put briefly: the purpose of law is to serve justice, all law claims to do so, and law is justified and legitimate only when it does so in fact The recognition, legislation, interpretation, and application of the law will always be governed by these purposes, whether acknowledged or not, and all assertions of law are supported, explicitly or implicitly, by the claim of systemic justice When the claim is untrue, it vitiates the enterprise The frank and emphatic exposition of the necessary place of justice in the law is particularly important at a time when a number of well-intentioned theorists have obscured or even denied the connection Less well-intentioned publicists threaten the integrity not only of law, but of justice itself, by separating the two concepts This harmful doctrine is as old as Carneades, was revived ty Thomas Hobbes, and will be with us as long as those with power seek to evade restraint It would be invidious, perhaps a calumny, and certainly counterproductive to specify too closely the writers whose

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teachings encourage this mistake, since almost everyone who talks about law can also be found eventually to rely in one way or another on the principles that I set out here, even when their vocabulary purports to differ Law is a social necessity, arising from human nature, whose basic principles recur whenever people seek to live together in peace This argument claims truth, not originality, relying on principles unchanged (as John Adams once observed) since the “neighing of the horse of Darius ”1 All human beings, everywhere, and in every form of society, depend on certain fundamental legal ideas, differing only in vocabulary and the circumstances in which they find themselves People often disagree about the transient facts of human events, but much less about the fundamental principles of law and justice that should govern what happens This holds between as well as within societies My effort has been to describe human reality in the clearest and most natural terms, but I hope that those who find my choice of words imperfect will look behind them to the universal concepts mere words must struggle to express My scant references to other authors are made by way of illustration, not pursuit of borrowed authority My conclusions should stand on their own I speak here generally of my life’s work, which is far from complete My friends raise in this volume the questions that I and we must address, now and forever The Concept of Law The concept of law in its broadest sense signifies necessity, what must happen, rather than what merely should or ought to happen Thus, one speaks in the English language of the laws of physics, the laws of mathematics, the laws of astronomy, and so forth Those who posit such laws are asserting the necessity of certain actions or events So too with the laws of courtesy, the laws of beauty, the laws of morality, or the laws of any other phenomenon or activity Those who purport to discover or create such laws are claiming that in order to be courteous, beautiful, ethical, or in other ways compliant with the “law” in question, certain actions must be taken, and standards must be met Law in general concerns what is or is not required in the relevant setting and circumstances My interest is in the value and purpose of law as it appears in a somewhat narrower case, when people assert that something is or is not the “law” of states, nations, municipalities, or other political associations Here too the claim is made that something is the law and therefore must be done, but with the added implication that it also ought to be done Some concept similar to this sense of the word “law” exists in every language

1

John Adams, A Defence of the Constitutions of Government of the United States of America (London, 1787–1788) at I ii

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and in every human society Marcus Tullius Cicero expressed the general consensus when he wrote that “law is the highest reason, embedded in the nature of the world, requiring what must be done and prohibiting what must not be done ”2 Law is (or claims to be) what must be done or not done by its subjects to maintain a just and stable human society Assertions of law in this narrower sense, as expressed in “the law of nations”, “the law of the United States”, “the law of torts”, and so forth, imply not only that the posited law must be obeyed, but also that it ought to be obeyed This assertion is at the heart of the value of law as I shall describe it here Assertions of civic requirement that do not make this claim are not “law” in any useful sense of the term Like any claim of obligation, however, the obligation to obey the law requires justification, which in law arises from a further claim about the purpose of the enterprise The purpose of law is the realization of justice, and all legal systems and all assertions of law explicitly or implicitly claim to advance justice in the societies to which they apply This claim of justice is the necessary basis of any law or legal system. Laws or legal systems that do not advance justice have no legitimate authority and do not deserve to be obeyed The value and purpose of law are no great mystery, since all participants in every human society rely on them every day to regulate their behavior Nor are such questions particularly complicated Most people understand and apply them with almost no elucidation or reflection Yet it is worth stating that these mostly unexamined truths sometimes give participants in human society the courage and self-confidence to resist the spurious assertions of unjustified authority Self-interested despots, demagogues, and even ordinary politicians will seek the authority of law to advance their own corrupt interests and perpetuate their own domination Judges, legislators, magistrates, lawyers and citizens who perceive and respect the underlying value and purpose of law will better interpret, clarify, enforce, apply, and understand the law than those whose unarticulated knowledge may bend in the face of bold sophism or passionate self-interest Fundamental Definitions Thomas Hobbes, a man as admirable for his clarity as he was pernicious in his principles, observed how necessary good definitions are for any person who aspires to truth, while wrong or poorly constructed definitions give rise to further error and confusion 3

2 3

Marcus Tullius Cicero, de legibus, I vi 18: “lex est summa ratio insita in natura quae iubet ea, quae facienda sunt, prohibetque contraria ” Cf  de re publica III 22 Thomas Hobbes, Leviathan (1651) at I 4 15 Those relying on bad definitions are “as birds that entring by the chimney, and finding themselves inclosed in a chamber, flutter at the false light of a glasse window, for want of a wit to consider which way they came in ”

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Thus, good lawyers begin, as Hobbes did, by defining their terms, choosing understandings that conform as much as possible the actual usage, but sharpening the meanings to make them more useful The apprehension and communication of truth in law depends on good definitions as much as it does in any other field, but law, being both a social and a normative science, must follow two considerations First: how do people actually use words? And second: how might they most usefully use words, given what needs to be expressed? Very often – but not always – the best definition reflects etymology, as a word’s deepest meaning remains preserved and embedded in its origins Just as definitions should encompass both sociological and normative considerations, so too law has both a sociological and a normative reality What the law is and what the law ought to be are separate but always closely related questions This relationship will recur on almost every page in this volume, but the first and most important definition in a book on the value and purpose of law must be the definition of law itself This definition bears repeating Law presents itself as that which must (or must not) be done by its subjects to maintain and perpetuate a just society Put another way, law is often someone’s assertion of what must or must not be done by its subjects in order to maintain and perpetuate a just society Note the shift from the normative to the sociological in these two ways of viewing the same reality The first perspective is taken (or insincerely asserted) by those who posit laws for others The second is that of those who study the law from a distance The first perspective is that of the law itself The second perspective is that of many of its subjects Law’s fundamental claim to realize or at least approximate or advance justice should be at the forefront of all efforts to interpret, clarify, enforce, apply, or otherwise understand the law This is true as much for the sociological as it is for the normative study of the law No one can grasp the value of law without remembering law’s purpose, which is to establish and maintain a just society Thus Thomas Hobbes made a common and dangerous mistake when he wrote that “Law, properly is the word of him, that … hath command over others”4 and claimed that “The notions of Right and Wrong, Justice and Injustice” have “no place” until there is a “Power” to make the laws and specify the meaning of justice 5 No power ever merely asserts the law or can tell us by fiat what justice is or will be Those with the power to assert laws always also claim that the laws they put forward are just and therefore ought to be obeyed by their subjects This purpose and assertion of justice determines the value of every aspect of the enterprise Law’s claim to realize justice requires some definition of justice People who disagree about the definition of justice may still share an understanding of the fundamental value and purpose of law without sharing a specific conception of what law’s pursuit of justice requires in practice In fact, however, most people do share a basic and

4 5

Hobbes, Leviathan (1651) at 1 15 80 Ibid at 1 13 63

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perhaps unexamined understanding of justice, just as they share a basic and perhaps unexamined understanding of law Students of the law since Plato and Aristotle have understood justice to consist in those social arrangements that best serve the common good of all members of society, including everyone and omitting no one 6 Cicero and the Romans came to the same conclusion,7 which has been nearly universally accepted ever since 8 So prevalent is this understanding that even Hobbes made a “common good” argument for despotism, maintaining that the society he proposed, governed by absolute and unfettered “Sovereign Governours”, would also be the best and most effective legal system for all concerned 9 The prevalent understandings of law and justice, as set out in the definitions above, have gained such wide currency because they reflect our social natures, the usefulness of human cooperation, and a universal desire to be taken into account Rulers secure public cooperation best when they can convince their subjects (or fellow citizens) what is claimed implicitly by all governments and explicitly by the United States Constitution and many similar documents: that the laws in place will “establish Justice,” “promote the general Welfare,” and in the best and most effective commonwealths, “secure the Blessings of Liberty to ourselves and to our Posterity”10 Secondary Definitions The two primary definitions of law as the assertion of what must be done to establish justice, and justice as the distribution of rights and duties most conducive to the common good of all concerned, carry with them a series of secondary definitions, which also reflect and help to fulfill the value and purpose of law Each chapter in this book has explored such concepts in depth; yet for me, several concepts are so closely associated with the value of law that they deserve to be set out in summary form, to provide a general framework for the ground covered so well by my colleagues The concepts of the rule of law, legitimacy, effectiveness, reason, emotion, society, morality, and liberty all play such a large part in any theory of the law that their meanings and definition cannot be separated from that of law itself

6 7

8 9 10

Plato, Politeia, I xv 342e; Aristotle, Politika,, II iv 7; III v 1; II vii 13 M Tullius Cicero, de officiis, I xxv 85: “Omnino qui rei publicae praefuturi sunt, duo Platonis praecepta teneant: unum, ut utilitatem civium sic tueantur, ut, quaecumque agunt, ad eam referant obliti commodorum suorum, alterum, ut totum corpus rei publicae curent, ne, dum partem aliquam tuentur, reliquas deserant ” See e g John Rawls, The Law of Peoples (Harvard, 1999), p  67 on “decent peoples” who share a “common good conception of justice” Hobbes, Leviathan (1651) at 2 18 94 The Constitution of the United States (1787), Preamble

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The concept of the Rule of Law is the English-language adaptation of “imperium legum”, the Latin phrase signifying the rule of laws and not of men 11 This requires the subordination of the will and arbitrary power of public officials as much as possible to the guidance of laws made and enforced to serve law’s proper purpose, which is justice and the common good of every member of society When positive laws or their interpretation or enforcement serve other purposes, there is no rule of law, in its fullest sense, but rather rule by law, the appropriation of legal forms to serve some private end The rule of law requires that we remove the private will of public officials as much as possible from the administration of justice in society Private as well as public power should be regulated by law, to advance the common good The rule of law constrains the guardians of law to serve the interest of law, which is the interest of society as a whole, rather than that of any particular individual, party or faction within the larger community Legitimacy  signifies conformity to the governing standard or rules by which we measure a status or practice And the governing standard of legitimacy for laws and legal systems is justice Legal systems are legitimate when they serve justice and illegitimate when they do not The legitimacy or illegitimacy of laws and legal systems is important, not only for its own sake, because we want our laws to be just, but also because the perception of legitimacy encourages compliance It is not enough to say that a law is valid according to the terms of the legal system that promotes it People must also accept that the legal system itself is legitimate before they will defer to its judgments Legal systems seeking the legitimacy that they need in order to be effective will inevitably incorporate many fundamental standards of justice into the structure of their basic rules To be effective is to have an actual effect Laws and legal systems that are perceived as legitimate are also more effective (ex + facio) than would otherwise be the case Legislators, judges, and others who frame or interpret the laws want the laws they promulgate to be effective – and frame the laws in part to achieve this end This desire for effectiveness pushes even corrupt or despotic legal regimes to take justice to some extent into account in the framing and interpretation of their laws They want their subjects to perceive the laws to be just and therefore incorporate some elements of justice into law, in order to secure this perception Perception here may be more important than reality When unjust ends have widespread public support, a gap opens between legitimacy and effectiveness That which is not in fact legitimate may be perceived to be legitimate and therefore be effective Not all perceptions of legitimacy are reasonable or true This raises the question of reality Reason is the approximation of reality, seeking to make correct assessments about the actual nature of things (reor, reri, ratus) When law

11

See Titus Livius, historiarum libri, at II 1: “imperia legum potentiora quam hominum ”

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and legal systems purport to be just (and therefore legitimate), they necessarily also claim to be the true expressions of real justice The best known and longest-established definition of law in the world’s most developed legal tradition, which is to say, the civil law tradition, was well-framed by Cicero: “law is the highest reason, embedded in the nature of the world, requiring what must be done and prohibiting what must not be done ”12 Sir Edward Coke made the same claim of the common-law legal tradition: law is the “artificial perfection of reason, gotten by long study, observation, and experience ”13 Both legal systems present their laws as “summa ratio”, the highest expression of reason as applied to the requirements of human society By society I mean the relevant human community (societas) Law, in the narrower sense in which we have been using the term here, and justice, as generally understood, arise only in the context of some specific society or community 14 At the highest and most complete level, this would be the society of all sentient beings,15 but smaller societies may also exist and establish their own internal laws and justice, in response to local conditions 16 Properly understood and implemented, the internal laws and justice of these neighboring societies should be compatible, playing their coordinate parts in the universal society of all creation, and justice everywhere advances as we extend our concept of society to take more people into account 17 Thus Aristotle, Cicero, and Hugo Grotius, among many others, understood that law is a function of human society, and the universal human desire to live together in justice and peace 18 The basis of human society, and therefore of the law, is human emotion, that which we feel, want, and will need, in order to live worthwhile and fulfilling lives Emotions are those feelings and appetites that move us to action of their own accord (ex + movere) While reason begins with axioms, asserted as true, emotion begins with feelings, accepted as real This may happen directly, as in anger or disgust, but also less directly through the feelings of happiness, harmony, or justice that we seek to achieve, because we embrace them as good Many human emotions promote social cooperation and

12 13 14 15 16 17 18

M Tullius Cicero, de legibus, I vi 18: “lex est ratio summa insita in natura quae iubet ea, quae facienda sunt, prohibetque contraria ” Cf de re publica, III 22 Sir Edward Coke, The First Part of the Institutes of the Laws of England; or, a Commentary Upon Littleton (1628) at p  97b M Tullius Cicero, de legibus, I v 16: “societas … fons legum et iuris” Ibid , I vii 23: “Sed igitur, quondam nihil est ratione melius, eaque est et in homine et in deo, prima homini cum deo rationis societas; inter quos autem ratio, inter eosdem etiam recta ratio communis est: quae cum sit lex, lege quoque consociati homines cum dis putandi sumus ” Ibid.: “inter quos porro est communio legis, inter eos communio iuris est; quibus autem haec sunt inter eos communia, et civitatis eiusdem habendi sunt ” Ibid. “ut iam universus hic mundus sit una civitas communis deorum atque hominum existimanda ” Cf. Aristotle, Politika III, 1287a In addition to the citations above to Plato, Aristotle, and Cicero, see also, Hugo Grotius, De jure Belli ac Pacis (1625), Prolegomena at 8 (p x)

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service to the well-being of others, giving rise to justice and the law 19 Other emotions can be harmful to social cohesion and destructive to human society Most emotions could be either or both, depending on the circumstances in which they arise and the structures through which they are recognized and express themselves The preeminent human emotion in any discussion of law is the sense of justice  This feeling concerns the right order of society, and arises in the face of unfairness, oppression, exploitation, or any of the many other transgressions through which someone might violate the precept that all members of society deserve the opportunity to live worthwhile and fulfilling lives Morality, like law and justice, concerns the well-being of society as a whole Where law considers what must  be done, morality concerns what ought  to be done, if the well-being of all were taken into account, and none disregarded Thus, morality is broader than law, but law claims moral justification and asserts moral purposes Cicero adopted the term “moralis” to approximate the Greek “ethikos” 20 Both words carry with them the implication of custom (mos) or habitual behavior (ethos), but I shall use the word here as it usually used in all three languages, to signify good behavior, that which ought to be done, with a decent regard for the well-being of others and the general welfare of society at large This may include an element of custom or habitual behavior, developed in response to local conditions, local needs, local culture, or the simple necessity of choice, when faced with two equally valid alternatives  Morality guides the actions and choices of good people, in exercising the liberty secured for them by law Liberty is full and equal citizenship under the rule of law, where laws and the legal system serve the welfare of society as a whole, including all and excluding no one The word (“libertas”) and the concept it embodies grew up together in republican Rome in strong opposition both to domination (“dominium”), which is subjection to the arbitrary will of another, and license (“licentia”), which is the arbitrary ability to do what one wants, without concern for the welfare of others There can be no liberty without the law, but liberty under law does not exist unless the law fulfills its proper purpose of justice, in pursuit of the common good To enjoy liberty, it is not enough to have a kind master One must have no master at all 21 Thus, liberty requires the rule of law, the rule of law requires a just legal system, and justice requires consideration for all, in the light of reason and of human nature Lawyers have been the apostles of liberty in every society that has ever pursued justice through the rule of law, and lawyers everywhere deserve our admiration, whenever they hold fast to this tradition Many definitions could, should, and will be added to the ten offered here, but the purpose of this exercise was to introduce the law, and arm lawyers with a succinct and 19 20 21

M Tullius Cicero, de legibus, I xv 43: “quia natura propensi sumus ad diligendos homines, quod fundamentum iuris est ” M Tullius Cicero, de fato, I. i. M Tullius Cicero, de re publica, II xxiii 43

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accurate vocabulary to counter the obfuscations of presumptuous authority Law consists in perceptions of what justice requires to be done (or not done) by its subjects Justice signifies the best order of society, taking all into account and excluding no one  The Rule of Law constrains only for the common good, negating all exercise of arbitrary authority  Legitimacy arises from conformity with the governing standard of the practice in question To be Effective is to have an actual effect Reason is the apprehension of reality Emotions are feelings and appetites that move us to action of their own accord Societies are communities within which we seek the common good Morality expresses those human values and attitudes that maintain the common good Liberty is full protection by the law, when law realizes its claim to justice, and is as much as possible what it should be: developed, discovered, interpreted, and enforced, for the security and benefit of all The Science of Law Subjects taught and studied are sciences to the extent that they seek knowledge or truth (scio, scire). Law’s claim to justice makes law a normative science, concerning what ought to be done, but also a sociological science, concerning what actually happens, pursuant to these normative claims These two modes of study are related and inevitably intertwined, since what ought to be done depends to some extent on what actually is or has been done, and vice versa  There is no way to evade the fundamental claim of justice in studying any aspect of the law, and since the claim of justice is a claim of truth, there is no evading the need to consider the truth (or not) of any claims made by or on behalf of the law The search for truth does not imply certainty The first question for lawyers is how best to approximate truth in the face of uncertainty, and which processes of legal determination will yield the most accurate results This invokes the great division between theoretical and practical philosophy I use the term philosophy here, as distinct from science, to convey the greater difficulty of the debate 22 All participants in public discussions about law and justice must try themselves to grasp the truth about reality, human nature, the common good, and what these require of us, individually and collectively, with regard to one another This direct engagement with law and justice is theoretical, in the sense that one must think for oneself, taking the arguments of others into account, and test one’s views in delibera-

22

No knowledge is certain, but science is best used of those forms of knowledge about which consensus will be most easily reached by those who make the honest effort Philosophy includes science but extends further to the search for truth in areas where consensus is more difficult to achieve Religion includes both science and philosophy, but also those areas in which truth is beyond human comprehension Superstition signifies any claim of truth that violates the alethic principles of philosophy or science

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tion with others about the truth of various propositions  Yet disagreement will often remain This raises the more difficult question how to determine the practical requirements of law in the absence of theoretical consensus What process will yield results to which its subjects should defer, even when some remain unconvinced on the merits? What process will justify coercion, when those who disagree resist? The first-order or theoretical science of law applies human reason to questions of public well-being The second-order or practical science of law concerns our shared public reason, which should have a greater authority in justifying collective action Constitutionalism is the ultimate product of the practical science of law Constitutionalists must consider how best to find or build practices and institutions that will establish the actual rule of law in any given community, advancing and protecting the public good of the community as a whole  The “great question”, as John Adams so presciently put it, is “what combination of powers in society, or what form of government, will compel the formation of good and equal laws, an impartial execution, and faithful interpretation of them, so that citizens may constantly enjoy the benefit of them, and be sure of their continuance ”23 All societies have constitutions, in the sense that they have processes for deciding the content, application, interpretation and enforcement of the law   Well-constituted societies make these decisions well Poorly constituted societies do not, and therefore lose legitimate authority over the supposed subjects of their rule Thus the recognition, adjudication, enforcement, and all other elements of the study of law often come down to questions of validity – what is properly in force (valet) according to some external measure Justice validates the legal system The legal system validates the laws The laws validate the power or authority of particular individuals in particular circumstances The science of the law concerns not only what is actually valid, in the sense that it meets the governing standard of justice, but also what has been declared to be valid, by which authorities, and on what basis, whether this actually meets the relevant standard or not Just as the perceived (sociological) legitimacy of proposed laws and legal institutions may not always coincide with their actual (normative) legitimacy, so too may the systemic (procedural) validity of laws and legal decisions not always correspond to those that would have had normative (substantive) validity, had the laws been interpreted correctly Legislation is the process by which persons or institutions purport to discover or lay down the law (lex + fero) Would-be legislators make law’s normative claim of justice On the strength of this claim they demand obedience  But when their claim of justice fails, law loses its normative force This risk of normative failure pushes those proposing legislation to make arguments from justice to justify their proposals Leg-

23

John Adams, Defense of the Constitutions of Government of the United States of America vol  I (1787), p  128

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islators must claim a normative perspective on the law or lose legitimate authority to specify the law’s content to others When viewed by the subjects or students of the law, the question becomes not only what justice requires of the legislation in question, but also what the would-be legislators believed justice to have required in the relevant circumstances Sometimes procedural considerations justify deference even to mistaken legislation But the necessary connection with justice remains Legislation is pointless and unpersuasive without the claim of justice to justify its normative pretensions The same is true of adjudication, when authorities apply the law to actual cases The asserted basis of legal decisions is justice (ius + dicere), whether applied directly by the adjudicator, or indirectly by reference to legislation In both cases, interpretation is justified, if at all, by reference to justice, and laws and legal authorities understood and interpreted as having intended to achieve justice, even when this was obviously not the case The formal role of judges as interpreters of laws and legislation also gives rise to moral duties, which will differ depending on which legal systems they serve Judges serving in substantially just legal systems will usually serve justice best by scrupulously respecting the procedural results of the system as a whole, even when they have doubts in particular cases Judges in substantially unjust systems may serve justice better reinterpreting, or even knowingly mis-interpreting, unjust enactments Thus, adjudication in all legal systems makes constant reference to justice The roles and duties of judges will differ, depending on the justice of the system that they serve The enforcement of the law, like legislation and adjudication, always acts in the implicit and often in the explicit name of justice, in bringing the laws into effect Thus, the “Department of Justice” in the United States is the federal executive department charged with enforcing the laws of the United States, but presents itself to the public as the protector of “justice” for all those subject to the jurisdiction of the republic France and the United Kingdom also have ministries of “Justice”, as do many other nations  Such nomenclature reiterates the law’s claim to justice, but also reminds those working to enforce the law in such departments that law’s purpose of justice should guide its enforcement at every turn Here too the nature of executive duties will differ, depending on justice of the legal system as a whole 24 The science of law is both the theoretical and the practical study of the establishment and implementation of justice through permission and prohibition in the institutions of society and the state Put more incisively: the purpose of law is to serve justice, all law claims to do so, and law is justified and legitimate only when it does so in fact The recognition, legislation, interpretation, and application of the law will always be governed by these purposes, and all assertions of law are supported, explicitly or 24

As I write these words, the acting Attorney General of the United States has, refused to enforce and unconstitutional executive order of the President, citing her departments “solemn obligation to always seek justice and stand for what is right ” State of Acting Attorney General Sally Yates, January 30, 2017

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implicitly, by the claim of systemic justice 25 The province of jurisprudence is to study and clarify what this claim of justice requires of law and legal institutions, and how the claim of justice guides, modifies, and redirects the law, in every time, place, society, or circumstances The value of law arises from its purpose: the establishment of justice, through public permission and prohibition, in service to the common good The Value and Purpose of Law The definitions, ideas, and concepts that I have sketched briefly here are the prolegomenon to a broader study of the value and purpose of law that will benefit from the guidance my colleagues provide me in this volume I supply these bold principles as an expression of gratitude to my friends, who have heard them before, and a challenge to myself, who must substantiate my assertions Above all I want to honor my comrades in the republic of letters, with whom I have savored the discourse of legal and social philosophy, which is to say, the science of community and justice Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium iubendo, vetando a fraude deterreat.

25

Not all lawyers have the courage to defend the law this way, but all have the duty to do so, whether they acknowledge it or not

a rc h i v f ü r r e c h t s - u n d s o z i a l p h i l o s o p h i e

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141. Axel Tschentscher / Caroline Lehner / Matthias Mahlmann / Anne Kühler (Hg.) Soziale Gerechtigkeit heute Kongress der Schweizerischen Vereinigung für Rechts­ und Sozialphilosophie, 7. Juni 2013, Universität Bern 2015. 139 S., kt. ISBN 978­3­515­10907­9 142. Daniela Demko / Kurt Seelmann / Paolo Becchi (Hg.) Würde und Autonomie Fachtagung der Schweizerischen Vereini­ gung für Rechts­ und Sozialphilosophie, 24.–25. April 2013, Landgut Castelen, Augst 2015. 216 S., kt. ISBN 978­3­515­10949­9 143. Jean­Christophe Merle / Alexandre T. G. Trivisonno (Hg.) Kant’s Theory of Law Proceedings of the Special Workshop “Kant’s Concept of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 138 S., kt. ISBN 978­3­515­11037­2 144. Júlio Aguiar de Oliveira / Stanley L. Paul­ son / Alexandre T. G. Trivisonno (Hg.) Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 187 S., kt. ISBN 978­3­515­11043­3 145. Annette Brockmöller / Stephan Kirste / Ulfrid Neumann (Hg.) Wert und Wahrheit in der Rechtswissenschaft 2015. 113 S., kt. ISBN 978­3­515­11053­2

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This book reveals and discusses the foundations of law and justice. Fifteen leading lawyers and philosophers of law, representing thirteen nations and fifteen different philosophical schools examine the value and purpose of law, and the nature and requirements of law and justice. Some of the world’s most learned and provocative legal scholars address the ultimate questions of legal and social philosophy from all angles and the broadest possible perspective, with special reference to the work of Mortimer Newlin Stead Sellers, and the republican, liberal, and analytical schools of legal thought. The conclusions reached here are not fully unanimous, congruent or conclusive, but they represent the pinnacle of legal scholarship as it exists today and furnish the necessary basis for any future study of law, justice, or the ultimate requirements of just, effective and legitimate law and society.

ISBN 978-3-515-12460-7

www.steiner-verlag.de Franz Steiner Verlag