Post Positivism [1 ed.] 9783428539871, 9783428139873

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Schriften zur Rechtstheorie Band 270

Post Positivism By Eric Engle

Duncker & Humblot · Berlin

ERIC ENGLE

Post Positivism

Schriften zur Rechtstheorie Band 270

Post Positivism By Eric Engle

Duncker & Humblot · Berlin

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

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© 2014 Duncker & Humblot GmbH, Berlin

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Preface Post-Positivism presents a unique theory of law. The work argues: (1) That positive law and natural law are complementary, not competing views. (2) That normative inference (is-to-ought) can be a logically valid form or reasoning. This book thus presents resolutions to the two leading questions of contemporary legal theory. This book also provides a dialectical synthesis of competing ontological, epistemological and axiological theories. Breaking both from Catholic natural law neo-Platonic idealism and from international relations theory realism (nominalism), the work argues for a monist (not dualist), materialist (not idealist), cognitivist (not relativist) and holist (not atomist) view. Thus, the work combines the best aspects of Catholic neo-Platonism (moral cognitivism, holism) and nominalism (materialism) to present a powerful scientific theory of law, which sees positive law and natural law as complementary (some laws are natural, such as the prohibition of murder, others are positive such as parking regulations). Finally, the work argues that logic must be understood as consisting of practical reasoning and theoretical rationality, and that a binary logic of “either true or false, only” is inadequate to explain legal phenomenon and that binary logic generates paradoxes, which can be avoided in multivariate logics. Chapter 1 presents a comprehensive theory of law founded on correct ontological, epistemological and axiological bases and proposes that monism, materialism, and holism will have greater explanatory and predictive power than dualist, atomist and realist theory have had. The theory described, though focused on IR, is applicable to domestic law as well. Western thought has long been predicated on either ontological materialism (matter determines mind) or ontological idealism (eidetic realism: mind determines matter). Usually, the materialist view is also monist (reality is fundamentally unitary); whereas the idealist view is generally presented as dualist (reality is fundamentally binary). This ontological choice between monist materialism or dualist eidetic realism generally has entailed either an atomistic epistemology (one can only comprehend reality by decomposing it into discrete real elements) or an epistemological holism (to under-

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stand reality we must examine it as a whole). These epistemological and ontological choices also have usually entailed in turn either an axiology of moral scepticism and thus relativism (morals as intellectual constructs have no material existence) or of cognitivism (morals as expressions of the intellect are real entities), respectively. In fact, these usual associations are not inevitable: Other choices are possible. The greater part of the Manichean conflict endemic in western thought is due to an erroneous linkage of ontology and axiology. Axiological dualism (good versus evil, us versus them) and ontological materialism (only the material world exists, so go make money) have been supposed, wrongly, as somehow necessarily consequent from each other. Materialist ontology can in fact be associated with an epistemology based not on atomism, the dominant western paradigm, but instead on holism. Likewise, axiology can be based not on relativism but on moral cognitivism, grounded not on eidetic realism but rather on materialism. This work thus presents two ruptures from western thought. First, it describes a monistic materialist reality, which is understood not analytically but synthetically. Second, it describes moral choice not in relativist terms but as a fact of the material world. Rejection of eidetic dualism does not entail moral relativism. Adhesion to a materialist viewpoint does not entail atomism. These two key ruptures are the basis of a unique and far-reaching theoretical basis for legal analysis presented here. Chapter 2 presents Aristotle’s theory of justice in painstaking detail in order to understand the roots and extent of social conflict in western thought. Aristotle was the greatest scientist in western history. He established the scientific paradigm and the instruments thereof (materialism and logic). His work covered all the basic sciences: Astronomy, Botany, Logic, Mathematics, Meteorology, Philosophy, Psychology, Political Science, Rhetoric, Zoology. Aristotle’s conception of justice pervades the law and heavily influences the Anglo-Saxon court system to this very day. Yet, Aristotle was racist, sexist and homophobic. He thought slavery was natural and good and that a woman’s place was in the home. Because Aristotle is so influential these flaws have distorted western thought ever since. Purged of racism, sexism, and homophobia through exposure, Aristotle’s concept of justice is then used throughout the rest of this work as the measure of the rectitude of law. Chapter 3 addresses moral theory. Antiquity identified moral values, but selected the wrong values. Late modernity rejected the idea of moral values entirely, arguing instead for a subjective relativization of value choices. This chapter argues that moral values are cognizable in materialist terms and defines morality in materialist terms. Morality is that, which tends to

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encourage survival of the human species. This chapter traces out the battle over the cognizability of truth and morality by examining the quarrel of universals among the scholastics and concludes that quarrel was the result of an erroneous binary epistemology that was incapable of coping with uncertainty. The erroneous epistemology of antiquity is explained by insights from contemporary logic. The breakdown of classical moral values during early modernity was inevitably possible due to the scholastics’ erroneous belief that all values must be either true or false, only. It merely required historical circumstances in the form of two global wars and global communication to be actuated. Yet, the late modern subjectivist relativist view is also wrong. Understanding how we know what morals are allows us to better see that we can infer from normative statements by recasting them as conditionals. To date, relativism has won the quarrel of universals but as an alternative materialist cognitivist epistemology emerges I predict that situation will change. Chapter 4 addresses logical aspects of moral reasoning and the relation of moral inferencing to the debates concerning natural law and positivism. Two false dichotomies: “no ought from is” and “either natural law or positivism” impair current legal thought. This chapter exposes those dichotomies and explains why they are not in fact accurate using Professor Duncan Kennedy’s work as a foil for the exposition. Chapter 5 looks to the influence of natural law theory on the theory of the state. Following the scholastics’ reworking of Aristotelian logic, Western thought then reiterated natural law through Hobbes and generated a social contract theory used by Hobbes, Rousseau, and Locke. The social contract and the state of nature are accepted as legitimating myths in the liberal democracies. However, these myths do not correspond to reality. In contrast, a theory of natural law (lex naturalis, the law of the jungle, the law of the strongest) combined with ius naturale (natural justice – right reason in accord with the law of nature) is internally consistent and externally verifiable and thus an adequate description of reality. A certain theory of natural law is a consistent and complete axiomatic system – with more than purely formal value. Yet, natural law theories were rejected by late modernity in favour of pure positivism and voluntarism – with disastrous consequences. Natural law arguments are the basis of the individual rights underlying the social contract model of liberal democracy, and so the rejection of natural law should entail the rejection of social contract theory, yet did not. So, contemporary theorists such as Dworkin, Rawls and Nozick struggle to this very day with the concept of the social contract and state of nature, without however consciously developing or deploying any tenable theory of natural law and are thus doomed to irrelevance and failure because both the

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social contract and the state of nature as explanations of the origin of the state are myths and have no basis in history. A reconceptualisation of the foundations of the state requires recognition of the validity of natural law and the rectitude of the Aristotelian view that the state is inevitable, and a natural phenomenon. The social contract is no answer to the problems of state formation or legitimation. Liberal democracies would more consistently and coherently legitimate themselves by reference to laws founded not on a mythical social contract but rather on accurate reflections of the facts of human nature. Chapter 6 looks at state legitimation – and the justification of judicial power – in light of the economic collapse of the 1930s, bringing into focus the theories of legal realism. Legal interpretation in the United States radically changed between 1930 and 1950. However, the new legal realist methods developed and used, which at first seemed to indicate a new legal order, in fact only preserved the old order, protecting it from fundamental change. Thus, the same problem, war resulting from economic cyclicity recurred in Vietnam sparking the critical legal studies (CLS) movement. Most recently, the wars in Southwest Asia and the Horn of Africa indicate that the ideas of the legal realists and critical theorists are not moribund. New legal movements will arise out of these wars, too. Contemporary scholars and students will almost certainly look back at the errors and victories of their elders. This chapter presents a retrospective of past legal discourse intended to help contemporary scholars situate their ideas contextually as part of a recurring struggle. Chapter 7 continues to look at legal history to extend forward the analysis of Chapter 5 from the era of the Second World War to the 1980s and to see how that experience influences our view of moral theory. It argues that progressives took up the idea of moral relativism, hoping thereby to criticize the failed conservative morality. However, that doomed the left to irrelevancy and economism. By the 1980s, the Left became trapped and immobilized by the erroneous belief that normative inferencing be impossible. That erroneous belief paralyzes any moral critique and transforms all arguments into economic ones. This chapter suggests the way out is to re-cognize axiology on objective foundations and to situate political struggles in historical materialist terms. Economic analyses of law triumphed from the failure of CLS to do more than merely disrupt hegemony. Chapter 8 looks at the now clearly ascendant economic analyses of law. Economic analyses of law predominate in the United States because they can claim to be objective and scientific and thus they are verifiable and can serve as the basis of predictions and reproducible experiments. However, though economism preserves some scientifi-

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city in law despite (erroneous) moral relativism, several of the claims of economic analysis of law go too far and are entirely unrealistic. This explains why economic analysis of law has not been taken up outside of the U.S. to the extent it has in the U.S. This chapter points out the unrealistic presumptions within law and economics theory (homo economicus and efficient markets, mostly) and the unrealistic claims of law and economics (that the law is and should be a mirror of the economy). Economic analysis of law cannot and should not serve as a general basis of legal decisionmaking. However, as a special theory, applicable as a method for determining certain issues, economic methods can well inform legal decision, helping judges to shape justice correctly. This chapter exposes the competing schools within law and economics and presents a defensible version of economic methodology applied within legal discourse. Natural law and moral inferencing were wrongly rejected by the left and led to sterile positivism. Chapter 9 examines the leading 20th century positivist, Hans Kelsen, in hopes of finding some guide or vision of the future. Unfortunately Kelsen’s thought is sterile if not outright bankrupt. Kelsen’s views are founded upon an epistemology, which is both objectivist, regarding the existence of truths, and subjectivist, regarding normative positions. This epistemological bifurcation leads to a variety of contradictions in Kelsen’s positions, and explains his reversals regarding the possibility of normative inference, the real or metaphorical existence of a fundamental norm, and constructivism. Aside from these contradictions, this ‘split’ explains certain terminological ambiguities: Kelsen confounds conditionals (statements in the form of ‘if then’) with imperatives under one term, ‘norm’. This ambiguity is only partially resolved through the distinction between “legal norm” and “legal statement”, for the distinction between legal norm and legal statement is a distinction between the domain of legal science and of law. The confusion of a command (an imperative statement) and a conditional (a statement in the form of if then) remains, for the distinction between legal statement and statement of legal science refers to another thing entirely: the epistemological distinction between two different domains of study, and not to the epistemological distinction between two different intentional entities. Reversals on constructivism, normative inference, and the real or metaphorical character of the fundamental norm reveal that Kelsen’s theory suffers from a fundamental conceptual flaw in the definition of his basic unit of analysis. The result is a theory that is not merely devoid of prescriptive utility (no normative content) but also is internally incoherent. Chapter 10 continues the examination of legal history, extending forward from the 1980s to the present. Legal Realism, Critical Legal Studies, Post Modernism, and Marxism are all intertwined, somehow. This chapter

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sees Marxist currents as the common thread throughout U.S. left legal theory. Marxism as an ideology never took off in the U.S. outside of law schools. However, there, Marxism seems to have overtly or covertly informed these three legal theories resulting in what, in Marxist terms, are revisionist, deviationist and sub-reformist lines. Examining legal realism, CLS and PoMo from the perspective of Marxism reveals extrapolations from some portions of Marxism into legal theory. This chapter concludes that legal realism did not “follow through” on its radical origins, that CLS stayed “radical” but never took state power and that PoMo is too open textured to be at all useful as a tool to fight against oppression or exploitation. Chapters 11 presents a comprehensive and critical review of the work of the most influential contemporary American legal theorist, Duncan Kennedy. Currently, we are living through an era of post-positivist reintegration. The chapter draws on sources from European legal theory to present a comprehensive defence and critique of Professor Kennedy’s positions. Kennedy has had more influence than he thinks, but could become more influential were his work resituated through certain presuppositional moves. These moves are presented in outline form in this work. Chapter 12 deepens the examination of the relations of language, logic, law and science started in Chapter 9. It argues that the study of law can and should be scientific and that the scientific basis of legal study is logic. This chapter particularly argues that the usual binary logic (‘either true or false, only’) is inadequate to explain all relations and generates enthymemes and paradoxes of material implication. This chapter argues for an understanding of logic as consisting of two branches – theoretical logic and practical reasoning, which can be studied either philosophically (Aristotle) or mathematically (Boole). The gist of this chapter is that materialism allows a scientific basis for the study of law, and that logic permits its formalization to reach the conclusion that law is not an autonomous or unscientific discipline. Law can be determinate and legal science is not autonomous because knowledge is grounded in material facts. Chapter 13 presents a critique of Ronald Dworkin’s theory of rights discourse. The critique of rights discourse is then extended in chapter fourteen to show how Dworkin’s theory could be readily reworked to become a powerful basis for fundamental legal reform. Dworkin’s basic assumptions, that positivism and natural law are antithetical, and that “rights” and “policies” are fundamentally different, are flawed. The flaw arises from a misapprehension of the complimentary character of positive and natural law and a resulting misconceptualisation of the relationship between laws (conditional statements) and teleology (goals and policies). However, these flaws

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can be readily remedied as shown in the final chapter to transform his theory into a force for real legal reform. Chapter 14 then applies the theory and method to a concrete contemporary issue: the international human right to food. The right to food is at least a hortatory right, but is probably also a programmatic goal: as such, it can be used as a guide to the interpretation and application of other positive rights. This chapter argues that the right to food does itself have positivity, that it creates an obligation on the state to create the framework conditions as well as the provision of basic alimentation to all. However, even if the right to food were not a positive substantive right to at least minimal nutrition this chapter shows how it can be given effect at least as a hortatory norm and programmatic goal. The work concludes that moral theories of law are positive when posited in materialist terms. It presumes as postulates an anthrocentric worldview, which aims to secure Aristotle’s goal of the good life for all. Normative inferencing is possible as a variety of practical reasoning (phronesis) built on an ontological monist holism, an epistemological materialism, and an axiological cognitivism, a unique combination of concepts, which are often, wrongly, cast as incompatible. Thank you for reading.

Eric Engle

Table of Contents Chapter 1 Method: Ontology, Epistemology, Axiology

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A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

25

B. Ontology: Materialism v. Philosophical Idealism . . . . . . . . . . . . . . . . . . . . . . . . .

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C. Epistemology: Realism v. Atomism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Atomism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Critique of Atomism and, by Extension, (International Relations) Realism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Holism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Critiques of Holism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Is it Possible to Synthesize Holist and Atomist Methods?. . . . . . . . . . . .

32 33 34 37 37 38

D. Axiology: Relativism (Post-modernism and Neo-liberals) v. Cognitivism (Classical Liberals) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 E. A New Natural Law Theory of International Relations . . . . . . . . . . . . . . . . . . .

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F. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Chapter 2 Legal Theory in Antiquity: Aristotle

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A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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B. Aristotle’s Contributions to Legal Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Logic and Dialectical Reasoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Tort Law: Causality is Rooted in Aristotle’s Thought . . . . . . . . . . . . . . .

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C. Aristotle and Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Political Justice – A Relation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Elements and Origins of the Polis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) The Individual: Dependency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Inequality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Condition of Slaves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) The Condition of Women. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Rationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. State of Nature? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49 50 51 51 51 52 52 52 53 53

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Table of Contents 5. The Ends of the Polis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Good . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Autarchy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Typology of Justice According to Aristotle . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Just Man, Justice, and Just Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Just Man . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Universal Justice (the Lawful) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Just Acts: Justice in the Particular (Fairness). . . . . . . . . . . . . . . . . . 2. Distributive Justice (“Geometric” Justice) . . . . . . . . . . . . . . . . . . . . . . . 3. Corrective Justice (Arithmetic Justice) . . . . . . . . . . . . . . . . . . . . . . . . . . Critique of the Aristotelian Theory of Justice . . . . . . . . . . . . . . . . . . . . . . . 1. What are the Sources of Inequality? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. What are the Consequences of Inequality? . . . . . . . . . . . . . . . . . . . . . . . a) Limitation of the Development of Individuals. . . . . . . . . . . . . . . . . b) Limitation of the Development of the Polis . . . . . . . . . . . . . . . . . . . c) Economic Inequality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Global Elements of Justice: Volition and Equity. . . . . . . . . . . . . . . . . . . . . 1. The Relation between Volition and Culpability: Aristotle’s Influence on the Concept of Culpability in the Common Law. . . . . . . . . . 2. Equity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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D. Criticisms of Aristotle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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II.

III.

IV.

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E. Aristotle and Foucault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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F. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Chapter 3 Pre Modern Theory: Medieval Scholasticism and the Universals (1400–1600)

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A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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B. Problématique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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C. History: From Realism to Nominalism by Way of the Universals . . . . . . . . . . I. The Scholastics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. External Contradictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Internal Contradictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The Universals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Verum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Truth Scepticism: Nietzsche – The Will to Truth. . . . . . . . . . . . . . b) Moral Relativism: Freud and Psychological Interpretation. . . . . . c) The American Realists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Fact Sceptics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Rules Sceptics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

66 66 66 67 68 68 69 71 71 71 72

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2. Bonum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Unum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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D. Logic: Indeterminacy and Decidability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Gödel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Quine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Linguistic Indeterminacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Paradox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Definition of Paradox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Self Reference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Paradoxes of the State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) The Paradox of Omnipotence and Self-limitation . . . . . . . . . . . . . e) Paradox of Universal Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Raz and the Paradox of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Kelsen and the Paradox of the Prescription of Prescription . . . . . . . . . . V. Juridical Functions as Determining Legal Knowledge . . . . . . . . . . . . . . . 1. The Maintenance of Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Prediction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

75 76 77 77 78 78 79 81 81 81 82 83 83 84 84

E. Conclusion: The Temporary Victory of Relativism . . . . . . . . . . . . . . . . . . . . . . . I. Volontarism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Relativism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

85 85 85

Chapter 4 Into Modernity: Natural Law and Normative Inference

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A. Introduction: The Contemporary View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

86

B. The I. II. III.

91 91 95

False Dichotomy of Either Positivism or Natural Law but not Both . . . Aristotle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hobbes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Implications of Re-cognizing the False Dichotomy of “Naturalism v. Positivism” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

98

C. Normative Inferencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 I. Hume’s Trap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 II. Hume and Kelsen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Chapter 5 Modernity: Social Contract and Natural Law

109

A. Natural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 I. Foundation of Natural Law in Intellectual Realism. . . . . . . . . . . . . . . . . . 112 II. Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

16

Table of Contents 1. The Central Function of Human Rights is Political Legitimation. . . 2. The Idea of Human Rights is Necessarily Ambiguous . . . . . . . . . . . . a) Universal Terminology is a Source of Ambiguity in Human Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) The Multiplicity of Theoretical Sources of Law is the Source of the Ambiguity Inherent in Human Rights . . . . . . . . . . . . . . . . . . c) The Multiplicity of Legal Sources is also at the Root of the Ambiguity of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) The Quest for Political Legitimacy based on Human Rights is Unworkable because of the Ambiguity Inherent in the Idea of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

118 118 118 119 119

120

B. Social Contract Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 I. The State of Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 II. The Social Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 C. Contemporary Social Contract Theorists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Ronald Dworkin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Dworkin on Natural Law and Positivism . . . . . . . . . . . . . . . . . . . . . . . . a) Principles and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Intensive Reiteration to Exhaustion of a Fundamental Principle c) The Inductive Deductive Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Dworkin versus Posner on Law and Economics . . . . . . . . . . . . . . . . . . 3. Conclusion: A Potentially Powerful Synthesis as yet Undeveloped and Rife with Contradictions Due to Absent Resolution of Conflicting Presuppositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. John Rawls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The “Original Position” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Rawls and the School of “Public Choice” . . . . . . . . . . . . . . . . . . . . . . . 3. Rawls Contrasted with Aristotle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Origin of the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Human Inequality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) The Theory of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) A Catholic Inspired Synthesis of Rights Theory and Natural Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

124 124 125 126 127 128 129

D. Libertarians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Introduction: Commonalities between Different Anarchisms. . . . . . . . . . II. Points of Divergence among Anarchisms . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Anarcho-Capitalists (Libertarians). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Nozick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Political Theory of Anarcho-capitalism . . . . . . . . . . . . . . . . . . b) Nozick’s Ultra Minimal State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. David Friedman – the Economic Theory of Anarcho Capitalism (Libertarianism) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

137 137 138 139 140 140 142

129 130 130 134 134 134 135 135 136

144 146

Table of Contents a) b) c) d)

17

Anarcho-capitalism is Unrealistic . . . . . . . . . . . . . . . . . . . . . . . . . . . No Dissolution of Private Property . . . . . . . . . . . . . . . . . . . . . . . . . . Privatization of State Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Negativism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

146 147 147 147

E. Criticisms of the Social Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Criticisms of the Social Contract from within its own Terms . . . . . . . . 1. The State of Nature is an Impossibility . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Social Contract is but a Fiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Criticisms of the Social Contract from Outside its own Terms . . . . . . . 1. The Necessity of Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Impossibility of an End of History . . . . . . . . . . . . . . . . . . . . . . . . .

149 149 149 149 150 150 151

F. Conclusion: Explaining the Success of the Theory of Social Contract Theory 151 Chapter 6 Late Modernity: Legal Realism

155

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 B. The I. II. III.

Judicial “Revolution” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Great Depression: The Judicial Revolution. . . . . . . . . . . . . . . . . . . . . Legal Realism “We are all Legal Realists now. Or are we?” . . . . . . . . . The Realist Rejection of “Formalism” . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

155 157 159 162

C. Post War: Co-opting Radicalism to Serve Global Hegemony . . . . . . . . . . . . . . 168 I. Law and Economics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 II. Legal Process Interest Balancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Chapter 7 Beyond Legal Realism (1950–1980)

181

A. Introduction: The Failure of the Left . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 B. Epistemological Basis of Realist Legal Method . . . . . . . . . . . . . . . . . . . . . . . . . . I. Dualism (Plato). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Relativism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Nietzsche . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Gödel, Quine, Saussure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Constructivism: Popper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Intersubjectivism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

185 189 192 192 199 201 203

C. Axiological Basis of Realist Legal Method – Hume and Kelsen . . . . . . . . . . . 204 D. Legal Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

18

Table of Contents I. II. III.

Legal Realism v. Formalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Realism Set the Stage for Law and Economics. . . . . . . . . . . . . . . . . . . . . . 219 Critique of Realist Legal Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

E. Conclusion: Beyond Legal Realism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Chapter 8 Law and Economics (1980–?)

225

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 B. The Origin of Contemporary L&E in Classical Economists. . . . . . . . . . . . . . . . 227 I. Adam Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 II. David Ricardo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 C. Law and Economics: Richard Posner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 D. The I. II. III.

Chicago School (Supply Side Theory): Milton Friedman . . . . . . . . . . . . . . Supply Determines Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The General Theory as a Special Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . Primacy of the Market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Role of Prices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Monetary Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Money as a Signalling System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Money as an Instrument of Economic Management . . . . . . . . . . . c) Monetary Policy must Prevent Inflation (and Deflation) . . . . . . . d) Opposition to State Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

231 232 232 232 232 233 234 234 235 236

E. The Vienna School . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Mises and Rothbard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Hayek . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Hayek on Inflation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Hayek on Epistemology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Hayek’s Prescriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

236 238 241 241 241 246

F. The School of Public Choice: James Buchanan. . . . . . . . . . . . . . . . . . . . . . . . . . . I. The Analysis of “Political Markets”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Political Failure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Bureaucracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Public Bads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Political Market. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Consequences of the Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Balanced Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Privatization of Legal Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Critiques of the School of Public Choice . . . . . . . . . . . . . . . . . . . . . . . . . . .

247 248 251 252 252 253 253 253 254 255

G. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

Table of Contents I.

II.

III. IV.

Valid Applications of Economic Methods in Law – “Weak” Law and Economics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Balancing Tests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Cost-benefit Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Invalid Claims: “Strong” Law and Economics . . . . . . . . . . . . . . . . . . . . . . 1. Homo Economicus – An Unrealistic Model of Human Behaviour in the Real World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Presumptions about Markets – And Failure to Account for Market Failure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Information Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Why Law and Economics? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Reductio to Refute Strong Law and Economics . . . . . . . . . . . . . . . . . .

19

256 256 257 258 259 260 261 262 262

Chapter 9 Kelsen

264

A. Normative Inference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Rejection of Normative Inference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The Normative Syllogism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Demonstration of Legal Inferencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

265 265 274 277

B. Critique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Polysemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Ambiguity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Confusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Neutrality? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Useless Complexity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Terminological Multiplication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Multiplication of Syllogisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Imputation: A Useless Distinction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. A Special Juridical Logic? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The Posthumous Character of the ATN . . . . . . . . . . . . . . . . . . . . . . . . . III. Methodological Aporia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Problem of Postulates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Separation of Law and Morality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Basic Norm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Tautology of the Basic Norm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Rationalisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. From Subjective to Objective Signification. . . . . . . . . . . . . . . . . . . . . . . . .

278 278 278 279 280 281 282 282 282 283 283 283 284 284 284 284 285 285 286

C. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

20

Table of Contents Chapter 10 After Modernity? – Critical Legal Studies

287

A. The Origins of Critical Legal Studies: Legal Realism . . . . . . . . . . . . . . . . . . . . . 287 B. Marxist Legal Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Antinomianism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Historical (Dialectical) Materialism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Socialist Legalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Criminal Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

290 290 290 291 291

C. Critical Legal Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 D. Post Modernism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Chapter 11 Contemporary Legal Theory: Scientificity

296

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 B. Scientificity of Law – How the Study of Law is Scientific? . . . . . . . . . . . . . . . I. Past Efforts at Universalisation in Human Sciences. . . . . . . . . . . . . . . . . . II. Borrowing Methods, Observations, and Analogies from Natural Sciences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Human Sciences are not Nomothetical . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Human Sciences are Dialectical . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Union of Opposites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Struggle of Opposites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Each Opposite Holds the Seeds of its Opposite . . . . . . . . . . . . . . . . . . 4. Transformation of Opposites into each other Through Struggle . . . . 5. Dynamic Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. A Long Series of Quantitative Changes Leads to a Sudden Qualitative Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. The Importance of Dialectics for Science . . . . . . . . . . . . . . . . . . . . . . . . V. Object of Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Analytical Method: False Dichotomies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Synthetic Method: Discover Latent Hidden Similarities in Apparently Different Institutions by Abstraction and Comparison. . . . . . . . . . . . . . . . VIII. Teleology of Legal Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Structuralist Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Goal of Science – the Good Life (Aristotle, Maslow) . . . . . . . . . . . . . IX. Hume, Weber and Kelsen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

298 298 299 302 303 305 305 306 306 308 308 308 310 311 312 313 313 313 314

C. Language, Logic, and Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 I. Logic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 1. The Paradox of Crows & The Problem of Causality . . . . . . . . . . . . . . 318

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21

2. The Correspondence Theory of Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Truth Functionality (Truth, Falsehood and Indeterminacy) . . . . . . . . 4. Logical Implication: Ternary Logic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Normative Inferencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Language – The Arbitrary Character of Signs . . . . . . . . . . . . . . . . . . . 2. Linguistic Determinacy and Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Interpretation and Argumentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

322 323 325 330 334 334 335 337

D. A Critical Response to Duncan Kennedy’s Theory of Argumentation . . . . . . I. The Death of Reason Narrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Critique of the Death of Reason Critique . . . . . . . . . . . . . . . . . . . . . . . . . . III. Frames of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Base/Superstructure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Structuralism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Post-structuralism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Post Modernism (PoMo). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Kennedy’s Theory of U.S. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Before CLT – The “Classical Period” (Natural Law) (Individualism – Begriffsjurisprudenz) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Classical Legal Thought (CLT) (Positivism – Interessenjurisprudenz) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The Social (Legal Realism/CLS) (Collectivism) . . . . . . . . . . . . . . . . . 4. Contemporary Legal Thought (Neo-formalism) . . . . . . . . . . . . . . . . . . 5. Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Law as Logical Equations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. “Outs” and Contestable Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

338 338 347 349 349 350 352 352 353

355 363 366 374 375 376

E. Pedagogy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Constructivism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Research Networks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Peer Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

378 378 380 381

II.

354

F. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 Chapter 12 Legal Indeterminacy and Autonomy of Law

382

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382 B. Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Kurt Gödel, Indeterminacy and Autonomy . . . . . . . . . . . . . . . . . . . . . . . . . II. Theories of Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Correspondence Theory of Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Consensus Theory of Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

385 385 387 387 388

22

Table of Contents 3. The Coherence Theory of Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388 4. The Pragmatic Theory of Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 5. Truth Statements are Reflections of the Material World . . . . . . . . . . . 391

C. Logic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Practical versus Theoretical Logic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Theoretical Rationality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Practical Reasoning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. (Qua-)Ternary Logic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Interpretations (Values) of Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Truth Functors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Multivariate Logic Invalidates Reductio Proofs . . . . . . . . . . . . . . . . . . III. Puzzles in Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Antinomies in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Conflicts of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Lacunae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Paradox . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Paradoxes of Material Implication Reveal the Inadequacy of Binary Logic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Paradox in Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Circling the Square: Statements about Pegasus . . . . . . . . . . . . . . . .

393 393 393 393 394 394 396 399 400 400 401 401 402 403 404 404

D. Conclusion: Law and Morality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Chapter 13 Rights Discourse

407

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 B. Rights and Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408 C. Rights Discourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Dworkin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Rawls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Hohfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

409 409 413 414

D. Types of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Perfect (Vested) Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Imperfect Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Rights at Will: Permissions, Privileges and Licenses. . . . . . . . . . . . . . Example: Ferae Naturae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Potential Rights: Mere Expectancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . Example: Ferae Naturae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Hortatory Rights: Programmatic Goals . . . . . . . . . . . . . . . . . . . . . . . . . . Example: The Right to Food, “Third Generation Rights”. . . . . . . . . III. Other Distinctions among Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

416 417 418 418 418 419 419 419 420 421

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E. Inferring Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 F. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 Chapter 14 The Right to Food

427

A. On Radical Legal Critique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 B. Classical Law: More Geometrico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 C. Taking Empire Seriously: Radicalized Rights as a Key to Third World Well Being . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. A Typology of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Positive Policies, Natural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The Right to Food (Basic Alimentary Rights) . . . . . . . . . . . . . . . . . . . . . .

433 435 438 440

D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 Global Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

Chapter 1

Method: Ontology, Epistemology, Axiology A. Introduction In this chapter I present the method which will be applied throughout this book, by examining basic presumptions about life and law. The subject of theory is our basic assumptions. Theory examines and questions global assumptions of systems, which in turn enables us to work changes on that system. Legal theory is thus one key to systemic change. When a system becomes dysfunctional and collapses, the facts force people to reconsider their theories. Competing worldviews such as fundamentalism versus globalization struggle over economic outcomes and conflicting basic assumptions. If one is to understand and influence the interactions of entire systems, such as the Soviet system and U.S. capitalism or Islamic fundamentalism and Christian fundamentalism, then theory is necessary. One reason that there is confusion in theory is epistemic. Although true consequences always follow from true premises, true consequences sometimes seem to follow from false premises.1 We can have right answers for wrong reasons2 which is my view of why errors persist in thought. Eventually however reality catches up to our beliefs.3 If our beliefs and reality do not correspond,4 we and those we love suffer. These facts, and natural human curiosity, justify theoretical inquiry. Theory questions assumptions to explain dysfunction.5 If one is to understand, 1 Karen K. Koehler, Michael D. Freeman, Don’t Fall for Defense Fallacies, 36NOV Trial 88 (2000); 2 Litigating Minor Impact Soft Tissue Cases § 12:24 (2005). 2 Kenyon Bunch, If Racial Desegregation, Then Same-Sex Marriage? Originalism and the Supreme Court’s Fourteenth Amendment, 28 Harv. J.L. & Pub. Pol’y 781, 840–841 (2005). 3 Francis J. Mootz III, Nietzschean Critique and Philosophical Hermeneutics, 24 Cardozo L. Rev. 967, 1036 (2003). 4 Ronald J. Krotoszynski, jr., The New Legal Process: Games People Play and the Quest For Legitimate Judicial Decision Making 77 Wash. U. L.Q. 993, 996 n. 11 (1999). 5 “Critical Race Theory scholars question the traditional assumptions of both liberals and conservatives with respect to the goals and means of traditional civil rights reforms.” Harvey Gee, Some Thoughts and Truths about Immigration Myths: The

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Chapter 1: Method: Ontology, Epistemology, Axiology

let alone influence, the interactions of entire systems then theory is necessary. It is thus essential to start from correct first principles,6 yet, we must be open to the idea that what we think is correct is not. Sceptical7 certitude is a nice way to summarize what I think is the correct attitude towards our basic assumptions. We should do our best to be certain what we believe and why and constantly search for reasons we might nonetheless be wrong, for errors in our ideas. Even with the right attitude – probing scepticism, which seeks to make sure what we believe really is so – we can still be confused about basic questions. This is because everything in life can ultimately be related to everything else if we just get creative.8 Of course, that leads to magical thinking.9 Where do individuals and groups draw lines? I present here a theoretical methodology that I believe cuts through the confusion and uncertainty so prevalent in theorization. We start with a problematique. A problematique is a question set. By following the problematique, by answering the questions, we get to answers, at least for ourselves. But, if our answers are good enough, we can hope that others might see things as we do. This is not postmodernism with its tepid view of truth as subjective or intersubjective nor is it the idea that values are merely a question of taste. Rather it is liberalism, the understanding that my values, if correct, are by that very reason persuasive, that I respect myself and that I respect you and so rather than force my ideas on you I present them. They “Huddled Masses Myth: Immigration and Civil Rights 39 Val. U. L. Rev. 939, 940 (2005); “An important contribution of feminist moral theory has been to question the firmly embedded assumption” Kimberly M. Mutcherson, Whose Body Is It Anyway? An Updated Model of Healthcare Decision-Making Rights for Adolescents 14 Cornell J.L. & Pub. Pol’y 251, 273 n. 82 (2005). 6 See, e. g. Rene DesCartes, Meditations on First Philosophy. While I am no Cartesian (he is dualist, I am monist), DesCartes radical scepticism, questioning basic presumptions to be certain they are true, is methodologically sound. 7 Skepticism in western theory can be traced back at least to William of Occam (Ockham’s razor: “Essentia non sunt multiplicanda praeter necessitatem.” – do not multiply entities beyond what is necessary to explain, author’s translation). See: The Cambridge Companion to Ockham ch. 5 (1999); DesCartes too was a sceptic. Louise Harmon, Wild Dreamers: Meditations on the Admissibility of Dream Talk, 79 Wash. L. Rev. 575, 634–635 (2004). 8 Donald T. Bogan, ERISA: State Regulation of Insured Plans After Davila, 38 J. Marshall L. Rev. 693, 704 n. 40 (2005). 9 “[M]agical thinking is a uniquely childlike inability to approach situations with an adult decision-making process. The child’s wishes become his/her reality.” Donna Sheen, Professional Responsibilities Toward Children in Trouble With The Law, 5 Wyo. L. Rev. 483, 490 n. 38 (2005).

A. Introduction

27

are I think true, and you are welcome to disagree and correct me, I appreciate that in fact since that is the nature of science, to synthesize the most accurate view from incomplete and inaccurate views. The problematique I present is: What is the nature of being? (Ontology)10 What is truth? (Epistemology)11 What are our fundamental values (axiology)?12 I think answers to these three questions determine more or less where we stand when it comes to law.13 I did not invent this problematique,14 but the answers I present are mine. I think 1) your answers to these questions will drive your practice of law. If you believe that life is a fundamental value then you will oppose the state killing, just for example. If you think “the truth is out there” you will take a philosophical view of the law. I cannot answer these questions for you. I can ask you these questions and I can show you my answers. I do think that these questions are related. Therefore, I ask those questions in the order I think is correct. If we know the nature of existence (ontology) then we can determine when something is true, false, unknown, or unknowable (epistemology). If we have a correct science of truth (epistemology) then we can determine whether a correct science of values (axiology) is possible and what it is.

10 “Ontology is the science of being, ‘the study of what is’.” Scott DeVito, The Ontology of Copyright Infringement: Puzzles, Parts, and Pieces, 35 Conn. L. Rev. 817 (2003). In computer science the word has a particularized meaning of a certain domain: “An ontology is a shared and common understanding of some domain that can be communicated across people and computers.” Thomas F. McInerney, Implications of High Performance Production and Work Practices for Theory of the Firm and Corporate Governance, 2004 Colum. Bus. L. Rev. 135, 176 (2004). 11 Epistemology is the science of truth; it is “the branch of knowledge concerned with how knowledge is derived.” Jeffrey M. Lipshaw, Contingency and Contracts: A Philosophy of Complex Business Transactions, 54 DePaul L. Rev. 1077, p. 1102 n. 110 (2005). 12 “ ‘Axiology’ is derived from the Greek, axios meaning ‘worthy’ and logos meaning ‘science.’ As a general philosophical theory, it involves a study of ‘goodness, or value, in the widest sense of these terms. Its significance lies (1) in the considerable expansion that it has given to the meaning of the term value and (2) in the unification it has provided for the study of a variety of questions – economic, moral, aesthetic, and even logical – that had often been considered in relative isolation’.” Robert F. Blomquist, Rethinking The Citizen As Prosecutor Model Of Environmental Enforcement Under The Clean Water Act: Some Overlooked Problems Of Outcome-Independent Values, 22 Ga. L. Rev. 337, p. 406 n. 204 (1988). 13 Ontology could be described as “the science of being” of ouisa: The object of ontology is to determine what is. Epistemology is the science of knowledge, that is the theory of how we know that, which we know. Epistemology is by nature recursive. Axiology is the science of moral choice, of fundamental values. 14 I wish to thank Prof. Christophe Grzegorczyk of the University of Paris X for presenting this problématique.

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Chapter 1: Method: Ontology, Epistemology, Axiology

I think there are objective values, that these values flow from objective truth, and that this objective truth is nothing more than a reflection of material reality. You are welcome to disagree. You are invited to look at my thoughts to see whether you do and why. The ontological, epistemological, and axiological foundations I present here are the base for what I call a new theory of natural law. The theory explains conflicts in the international system such as the rise of human rights and the decline of state sovereignty.15 The decline of sovereignty and the rise of non-state actors are key contemporary aspects of international relations. Only an overarching theory can explain and resolve systemic conflicts. To develop a theory to explain the rise of non-state actors and the decline of state sovereignty as well as the recurrence of war requires a clear understanding of ontological, epistemological, and axiological foundations of our thought. The following “checklist” of the competing ideas serves as a reference for the reader and introduces the principal terms of our discussion: A Theoretical Checklist (Which positions are yours?) ONTOLOGY Monism [ ] versus Dualism [ ] Holism [ ] versus Atomism [ ] EPISTEMOLOGY Materialism [ ] versus Idealism [ ] Idealism is also known as philosophical realism and/or Platonic formalism) AXIOLOGY Cognitivism [ ] versus Relativism [ ]

We now turn to basic definitions of these terms and their relations to each other. These will be deepened and elaborated infra. Ontology is the “the science of being” of ouisa: The object of ontology is to determine what is. Epistemology is the science of knowledge – the theory of how we know that, which we know. Epistemology is by nature self referential, recursive. Axiology is the science of moral choice, of fundamental values.

Western thought has long been predicated on either an ontological materialism (matter determines mind) or an ontological idealism (eidetic realism: mind determines matter). Normally, the materialist view is also monist (reality is fundamentally unitary), whereas the idealist view is usually pre15 Frederick J. Petersen, The Facade of Humanitarian Intervention for Human Rights in a Community of Sovereign Nations, 15 Ariz. J. Int’l & Comp. L. 871, 883–884 (1995).

A. Introduction

29

sented as dualist (reality is fundamentally binary). The association of monism and materialism on the one hand against dualism and eidetic realism (Platonic formalism) on the other is not inevitable or necessary. A dualistmaterialist view or a monist-idealist view is also possible. That is, monism and dualism may combine with either materialism or idealism – four possibilities – with no necessary logical contradiction, abstractly speaking. Materialism

Formalism (Idealism)

Monism

I

II

Dualism

III

IV

Usually monism and materialism (I) are closely associated to each other. Dualism and idealism (IV) are also usually seen as going hand-in-hand – though they do not in fact necessarily imply each other. The ontological choice of monism versus dualism and of materialism vs. eidetic realism (Platonic formalism i. e. idealism) habitually entails, respectively, an atomistic epistemology (A) or an epistemological holism (H). Atomism argues that one can only comprehend reality by decomposing it into discrete real elements. An atomist key phrase is ‘the whole is equal to the sum of its parts’. Its opposite, holism, argues that reality is only comprehensible in its entirety at once. A holist catch-phrase is ‘the whole is greater than the sum of its parts’. However, the association of monism and materialism with atomism is, like the association of dualism with Platonic formalism and holism, a merely contingent habitual association. Those linkages are not necessary implications compelled inductively or deductively by theoretical logic – though implications among various basic assumptions may be implied from practical reasoning (phronesis). In all events however, there are clear habitual associations between dualism and idealism; atomism and materialism; idealism and cognitivism; those associations are however merely contingent and not necessary. Materialism

Formalism (Idealism)

Monism Atomism Holism

A C

B D

Dualism Atomism Holism

E G

F H

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Axiology, the choice of basic fundamental values, may be either relativist (values are subjective and relative) or cognitivist (moral choice is possible and objective). Moral relativism usually argues that morals are purely intellectual constructs having no material existence. Cognitivism usually argues that moral values are expressions of the intellect and are “real” (intentional) entities. Usually, cognitivism is associated with dualism and idealism and possibly also with holism. Likewise, relativism is usually associated with materialism, atomism, and monism. Again, these associations are not compelled by theoretical logic. They are merely habitual. Materialism

Formalism (Idealism)

Cognitivism

Relativism

Cognitivism

Relativism

Monism Atomism Holism

1 5

2 6

3 7

4 8

Dualism Atomism Holism

9 13

10 14

11 15

12 16

This book argues from and for quadrant five, and posits that most western conflict has been expressed through the opposition of 15 and 11 versus 2. The habitual associations in western thought of: dualism-idealism-cognitivism on the one hand versus monism-atomism-relativism on the other are not compelled by logic. The choice of a given ontology does not necessarily entail any given epistemology and the choice of an epistemology does not necessarily entail an axiology, a theory of values. The contingent nature of the connections between these views explains why they can be decomposed and recombined in ways that will no longer doom the west to pointless self destructive conflict. The greater part of the endemic conflict in western thought is expressed through an erroneous linkage of dualism, materialism, and atomism (e. g., fascism). Secondarily, grave errors have also resulted from the linkage of dualism to idealism and cognitivism – the wrong choice of values to be regarded as moral linked to a dualist conflict of indemonstrable principles (e. g., religious persecution). However, these habitual and conflict laden associations are not logically compelled. The complex of ideas that constitutes fascism (atomism, materialism dualism) or religious fanaticism (idealism, dualism, cognitivism) can be decomposed and recombined in more accurate ways, which are healthier for society and it’s members by purging

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social life of pointless and self destructive conflicts arising out of basic errors in presumptions about the nature of reality, which become expressed in laws. Starting from a materialist ontology the author exposes an epistemology based not on atomism, the dominant western paradigm, but rather on holism. The author then describes an axiology based not on relativism but on moral cognitivism, grounded not on eidetic realism but rather on materialism. Thus, the author ruptures from western thought twice: First, in describing a monistic materialist reality, which must be understood not analytically but synthetically (western thought, in contrast, is usually dualistic and analytic). Second, by describing moral choice not in relativistic terms but as a real entity based in the material world the author again breaks fundamentally from western thinking. Most contemporary axiological thinking is relativist because contemporary thinking recognizes correctly that the wrong moral values were identified by dualist-idealists and that those wrong values were themselves a source of conflict. However, rejecting morals wholesale due to the erroneous selection of moral values by others goes too far – it ‘throws the baby out with the bathwater’. The identification of the wrong moral values due to dualism and idealism does not imply that moral values do not exist. Moral values exist and arise out of and are determined by material facts. In other words: (1) Rejection of eidetic dualism does not entail moral relativism. (2) Adhesion to a materialist viewpoint does not entail atomism. These are the two key ruptures I make from western thought, which I regard as implying a unique and far-reaching theoretical basis for legal analysis.

B. Ontology: Materialism v. Philosophical Idealism Scientific materialism is the idea that the material world is only understood mediately through the senses and mental faculties. According to materialism: (1) Objective reality is outside the observer in “the real world”. (2) Facts are prior to ideas and are the source of ideas. (3) Science is the comparison of ideas and reality. (4) The world of thought is a reflection of the material world. In contrast, philosophical idealism is the opposite of scientific materialism. To the philosophical idealist, ideas are prior to reality and the universe is nothing but a projection of mind. For the philosophical idealist (Plato is the best example), ideas can be compared to other ideas but not to material reality because the senses are inherently limited and prone to error.

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The problem with philosophical idealism is that it cannot be verified by material experience: it is unscientific. Philosophical idealism does not lead to episteme (knowledge) but only to doxa (opinion).16 Further, philosophical idealism also leads to unnecessary multiplication of intentional objects, against the dictum of Occam,17 thus risking confusion. Because philosophical idealism cannot be objectively verified this author rejects it. The source of understanding of the material world is experience. While it is possible to intentionalise eidos, such is doxa not episteme because it is incapable of demonstration.

C. Epistemology: Realism v. Atomism International Relations (IR) theory has been marked by two competing schools of thought: ontological atomism18 and its corollary international relations (IR) realism19 vs. ontological holism and its corollary IR transformationism.20 Understanding these theories allows us to understand international law generally and international human rights law particularly.21 At the broadest and simplest level, the principle of sovereignty, a consequence of atomism and realism, is in conflict with the principle of human rights. Sovereignty and human rights clash because human rights are essentially 16 For an explanation of episteme and doxa in the context of law see: Brett Scharffs, Law as Craft, 54 Vanderbilt L.Rev. 2263 (2001), esp. note 98. Doxa is generally translated as “opinion” and episteme as “knowledge”. 17 See, e. g., State of Alaska, v. Candice Auliye, 57 P.3d 711; 2002 Alas. App. LEXIS 218 (Alaska app., 2002). “Seven centuries ago, the English philosopher William of Occam described a philosophical principle that is still employed to good effect today: the best explanation of a condition or phenomenon is the one that is the simplest, i. e., the one that uses the fewest assumptions or hypotheses to adequately explain what is observed. This principle, known as Occam’s razor, is used to pare away extraneous labels and concepts, thus allowing the unadorned truth of the matter to be seen.” 18 Alfred P. Rubin, Actio Popularis, Jus Cogens and Offenses Erga Omnes? 35 New Eng. L. Rev. 265, 280 (2001). See also: C. Kernig (ed.), Sowjetsystem und demokratische Gesellschaft, vol. 1, p. 426 “Atomismus” (1996). 19 For a good summary of realist theory, see Johan Karlsson, The Stubbornness of Realism – Problemshifts in International Relations Theory, available at: http:// hem.passagen.se/kafkan/uppsatser/stubbornness.pdf (Arguing that though realist theory is showing evidence of losing explanatory power, institutionalism has not yet explained the success of realism as an IR theory). 20 Antonio Cassese describes the current international system as “a gradually unifying world” Antonio Cassese, Human Rights in a Changing World Polity Press (1990), p. 153. 21 Frederick J. Petersen, supra note 1 at 878 (1998) (UN simultaneously recognises two conflicting principles, sovereignty and human rights).

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founded on the liberal concept of the human being, i. e. classical Aristotelian liberalism,22 a holistic theory.23 Sovereignty, the idea of individual states as atoms interacting, hermetically isolated internally, results from atomism. Atomism, the view that we understand the world best by analyzing its constituent elements, is diametrically opposed conceptually to holism. Holism looks at the entire object and seeks to find synergies and syntheses, which explain why the whole is in fact greater than the sum of its parts.

I. Atomism Atomism describes material reality using an analytic method.24 Namely, it breaks down all elements into their constituent parts. This analytical method ensures that atomism maintains the material connection to empirical reality needed for scientific thought. By denying the noetic existence of intentional entities atomism limits the objects of its inquiry to both a manageable number and those, which are necessarily capable of scientific verification. However, the theory of international relations which flows from atomism, international relations realism (IR Realism) no longer corresponds to empirical reality. Because atomism is an empirical theory it is epistemologically biased toward inductive inference and tends to ignore (with the exception of ampliative induction) deductive inference. Scientific materialism and economy of thought clearly have a place in any flexible description of reality. However, because atomism is an empirical theory, and because empirical reality does not correspond to its propositions, the theory must be either modified or rejected. 22 “With regard to giving and taking of money the mean is liberality, the excess and the defect prodigality and meanness. In these actions people exceed and fall short in contrary ways; the prodigal exceeds in spending and falls short in taking, while the mean man exceeds in taking and falls short in spending.” Aristotle, Nicomachean Ethics, Book II, Part 7 (ca. 350 B.C.), translated by W. D. Ross. Obviously then, most neo-liberals are in fact illiberal, namely they are mean and grasping. For Aristotle, liberality is a virtue based on objective values. “Virtue, then, is a state of character concerned with choice, lying in a mean, i. e. the mean relative to us, this being determined by a rational principle, and by that principle by, which the man of practical wisdom would determine it. Now it is a mean between two vices, that, which depends on excess and that, which depends on defect; and again it is a mean because the vices respectively fall short of or exceed what is right in both passions and actions, while virtue both finds and chooses that, which is intermediate . . .” Id., Book II, Part 6. 23 Aristotle, Politics, Book I, Part II. (ca. 350 B.C.). “Further, the state is by nature clearly prior to the family and to the individual, since the whole is of necessity prior to the part”. 24 Thomas Hobbes, De Corpore (1655) (Chapter 6, section 7).

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II. Critique of Atomism and, by Extension, (International Relations) Realism There are several critiques of atomism. Atomism’s analytic method condemns realists to reject the existence of collective entities. As a consequence, the realists’ worldview is ultimately stunted and cannot conceive of events above or below the state level as being truly important. Further, realism continues to apply a false analogy25 from Newtonian physics to international relations. IR realists see states as isolated atoms, like billiard balls, reacting mutually, according to scientific laws akin to those of classical physics.26 That analogy, based on Newton’s Principia,27 has since been modified by general and special theories of relativity.28 States are no longer accurately described as hermetic atoms, separate and isolated from each other. States today are part of a continuum of interaction ranging from individuals to transnational entities. The relevant analogy or model from natural science would be quantum mechanics – sub-atomic particle physics, wave/ particle theories of light, the uncertainty principle – not Newtonian mechanics. Another critique of atomist theory is that atomism cannot synthesise parts into greater wholes. Thus, atomism stunts the realists’ worldview by limiting realists to a one dimensional world-view that sees only material objects, e. g. physical power, as having any existence or relevance. This leads in turn to the realists fixating on physical power as the key determinant of interstate relations. Realists’ fixation on physical power distorts realists’ descriptions, predictions, and prescriptions. Even within IR realist assumptions of state interactions as zero sum conflict focused on power maximization, economic power is still more important than military force: without economic power, there can be no military power. It has long been a maxim that “gold is the sinews of war”.29 Thus, a consistent atomist/realist IR theory must collapse into economic theory. Such a theory is possible: just as 25 For an interesting attempt to update the Newtonian analogy to take into account implications from contemporary physic see: Dimitrios Akrivoulis, Redesigning Newton’s Cenotaph: Quantum Spacetime and the State Proceedings of the 1999 Annual Conference held at the University of Nottingham (1999), available at: www.psa.ac.uk/cps/1999/. 26 Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EJIL 503 (1995) (describing, inter alia, the realists’ paradigm of states as atoms which, like billiard balls react in their collisions according to pre-existing laws). 27 Isaac Newton, Principia (1687). Translated by Andrew Motte (1729). 28 Albert Einstein, Relativity: The Special and General Theory, Translated by Robert W. Lawson New York: Henry Holt (1920). 29 Cicero, Speech In Defence of the Proposed Manilian Law (66 B.C.), translated by Charles Duke Yonge.

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the realists posit a “balance of power” to synthesise discrete atoms (states) into an orderly system (which by the way is completely a-historical) Adam Smith’s posits “an invisible hand”30 (of God) implicitly reaching down from the heavens to direct the affairs of humanity. Smith clearly was not engaging in noesis however.31 Though consistent realists are materialists, some of the other basic assumptions of realism are flawed. Realist IR theory begins with flawed assumptions. Realists assume: (1) Military force is the key element of power; (2) conflict is essentially zero sum. That is empirically untrue. Economic power in the real world is clearly more important than military power: Japan is powerful, yet has a very small military. International conflicts are usually positive sum, as at the WTO. Since realism begins with flawed assumptions the consequences that flow from them are also likely (though not necessarily) erroneous. Empirically speaking, the realist description of reality does not correspond to observations of the real world. To some extent, the failure of realism was due to a misapplication of atomist methods, namely ignoring synthesis in the name of materialism and fixating on analysis. However, it seems inevitable that atomism must ignore dialectics and synergies because it cannot conceive of a whole, which is somehow greater than the sum of its parts. Yet, a glance at basic economic processes such as standardisation of parts and assembly line production32 shows that specialisation increases economic productivity; a group of people working together can accomplish far more than the same number of individuals working in isolation. Economies of scale also belie atomist presumptions. The whole really is greater than its parts. We can also criticise atomism because its analytical method ignores dialectics. Dialectical materialism may have been made famous by Marx33 and Marxists,34 who used it alongside historical materialism,35 but dialectics are 30 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Book IV, Ch. 2, “Of Restraints upon the Importation from Foreign Countries”, paragraph IV.2.9 (1776) [hereafter, WN]. 31 See: Plato, Republic, Book 6 Stoa 510b (ca. 360 B.C.), translated by Benjamin Jowett. For Plato, noesis as the highest form of knowing because it occurs when subjective experience apprehends truth independent of reason, sense perception (aesthesis) or empiricism. 32 For example, Smith’s famous pin-factory, where each worker alone could only fashion, perhaps, one pin a day, but where even but ten poor workers specializing could produce two pounds of pins per day. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, B.I, Ch. 1, “Of the Division of Labour”, in paragraph I.1.3 (1776).

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found as early as Aristotle36 and even earlier with Heraclitus.37 However, the Aristotelian dialectic is an intellectual process, a dialog, whereas the Marxist dialectic is a collective and historical process. Atomism ignores dialectics because it focuses on the constituent elements, not the relations between them or whether those relations resolve into a greater whole. Atomism does go far however. Atomism dispels needless entities38 and breaking down objects into their constituent parts is one valid scientific method. However, atomism does not go far enough, because it cannot synthesize those elements into greater entities nor does it consider their relations inter se, i. e. dialectical processes. Of course, one can combine the analytic/synthetic and inductive/deductive methods – but, unfortunately, few do. A final critique is that atomism requires fictions such as the “the social contract”, the “invisible hand” and the “balance of power”. Those fictions purport to accomplish the syntheses that atomism ignores. These metaphors supposedly resolve constituent atoms (whether market actors or states) into a harmonious whole. However, the exact process by which that resolution occurs is a mystery. The inability of atomism to explain this act of synthesis via some exact method is a serious flaw, for science must explain reality. In fact, by these fictions atomism reproduces the very noesis and blind faith that it claims to surmount with materialism and analytic method. While integration of elements into a whole is certainly possible, it should not rely on a modern version of a mystery of faith. Rather, models of inte33 E. g., “Any development, whatever its substance may be, can be represented as a series of different stages of development that are connected in such a way that one forms the negation of the other . . . In no sphere can one undergo a development without negating one’s previous mode of existence.” Marx, Moralizing Criticism & Critical Morality, Oct. 1847, in Marx Engels Collected Works, Vol. 6, p. 317 (1847), from Deutsche-Brüsseler-Zeitung No. 86, October 28, 1847. 34 Id; Josef Stalin, Dialectical and Historical Materialism (1938). From Josef Stalin, Problems of Leninism, Foreign Languages Press, Peking (1976). 35 Josef Stalin, Dialectical and Historical Materialism (1938). 36 Aristotle, Posterior Analytics (ca. 350 B.C.), translated by G. R. G. Mure, Book I, Part 1. 37 Clearly Heraclitus was a monist: “all things are one.”; a holist: “Concepts: wholes and not wholes, convergent divergent, consonant dissonant, from all things a unity and from this unity all things [are made].” 18 Systemist 161–176 (1996). Also see, e. g., Paul Harrison, The Greek materialists: Thales, Anaximander and Anaximenes (1997), at: http://members.aol.com/heraklit1/greekmat.htm. 38 Occam is not the only scholar to argue that entities should not be multiplied beyondthose needed to explain an observed event. Newton similarly advises that “We are to admit no more causes of natural things than such as are both true and sufficient to explain their appearances.” The Principia, Book III. “The System of the World Rules of Reasoning In Philosophy” (1687), Translated by Andrew Motte (1729).

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gration should expose their presumptions in order to reveal and resolve any possible flaws in the theory.

III. Holism Epistemologically, holism is the opposite of atomism.39 Holism argues that any entity cannot be entirely understood by reference to its constituent elements alone because those constituent elements work together dialectically to produce a new result, which they would not produce separately. Thus, rather than analysis, holism seeks synthesis: holism seeks to integrate different elements and to explain that integration comprehensively. This is a much more ambitious methodology. It is also more complex, both as method and as to its object of study. However, if the holistic explanation is in fact accurate it allows the holist to make a quantum leap, which the atomist could never make within the presumptions of atomism. Holistic theory, unlike atomistic theory, necessarily40 comprehends that analysis is only one method of scientific inquiry and while it reveals truth only reveals part of the truth. The fact that the holism that I propose is materialist explains how synthesis can occur, because grounding theory in the material permits verification of hypotheses, even intuitive41 hypotheses, whether by analysis or synthesis. These hypotheses, once verified, can be integrated into theorems about the entity in toto, which may be more explanatory than the individual propositions from, which they are formed. A holistic theory grounded in materialism will necessarily become more accurate than any purely analytic theory because empirical verification occurs at both macro and micro levels. Purely analytic theories like realism usually correctly reject philosophical idealism, the idea that intentional entities are real and that the world is a reflection of ideas. However, purely analytical theories are heuristically sterile because they cannot formulate or test hypotheses about collective objects because analytical theories such as realism and atomism conflate groups with ideas about groups. The Polis is a material object. It is not a mere idea.

IV. Critiques of Holism Holist theory often links holism to philosophical idealism. Philosophical idealism, asserts that ideas (eidos) have a “real” character and are a priori 39 See, e. g., James Schombert, Glossary “Holism” (2003). Available at: http:// zebu.uoregon.edu/~js/glossary/holism.html. 40 Aristotle, Nichomachean Ethics, Book 6 Section 6. 41 Aristotle, Posterior Analytics, Book 2 Part 19 (ca. 350 b.c.).

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to material experience.42 Philosophical idealism is the opposite of materialism.43 Philosophical idealism is incorrect: the world is not a reflection of our ideas; otherwise yogic levitation would be possible. Holism is often linked to idealism. However, that linkage is not a necessary one. It is possible to have a holist materialist theory, which is the theoretical combination that this author recommends and applies. Holist theory is criticised because it tends to ignore analytical methods because it is looking at the whole and not the parts thereof. However, analytical methods can be applied within a holistic theory, particularly where that theory is materialist. While some holists could be criticised for ignoring analysis that does not mean that analysis is impossible within holism. Thus the critique is only valid when applied to certain holists. It is not a valid critique of holism itself. Philosophical idealism and ignoring analytics explain the failure of idealist-holist theories such as Plato’s. Yet, though holism and idealism are often linked (just as realism and materialism are usually linked), there is nothing necessary about that linkage. I specifically de-link holism from idealism and remap it to materialism. From that perspective international relations can only be understood (to the extent that understanding is possible) by examining the world as an interconnected whole. The validity of that theory is verified by comparing the correspondence of the holist model to material reality.44

V. Is it Possible to Synthesize Holist and Atomist Methods? To some extent the conflict between atomism/analysis and holism/synthesis is illusory. Analysis, a classic atomist method, and synthesis, a classic holist method, are both valid scientific instruments, which good scientists have at their disposal. They can and should be used complementarily to study the same object of inquiry – Hobbes does exactly this.45 The atomists, as materialists, were not entirely wrong. However, their analyses were distorted because of dualism and/or the analytic method, 42

See, e. g. Plato, Republic, Book VI (ca. 360 B.C.), translated by Benjamin Jo-

wett. 43

See, e. g., V.I. Lenin, Materialism and Empirio-Criticism, “Conclusion” (1908). For a general discussion of method see: Kenneth Einar Himma, Substance And Method In Conceptual Jurisprudence And Legal Theory, 88 Va. L. Rev. 1119 (2002). 45 Thus in De Corpore, Hobbes uses both analysis and synthesis. “The method of civil and natural science is analytic when it goes from sensation to principles, and synthetic when it returns back again from principles.” He even devotes an entire section to exactly this subject: Thomas Hobbes, De Corpore, 6.7 (Translated by George MacDonald Ross) (1655). 44

E. A New Natural Law Theory of International Relations

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which blocked them from grasping the essentially unitary character of experience. Consequently, the atomists over-emphasised the importance of military force and zero-sum conflict. Many, probably most, atomists were hampered by dualism, like so much in western thought. Synthetic sterility and, at times, dualist Manicheanism, explain the failure of atomism. These failings are seen most clearly in the work of realist international relations theory leading to dualistic wars fought by individuals isolated from each other and society as a whole.

D. Axiology: Relativism (Post-modernism and Neo-liberals) v. Cognitivism (Classical Liberals) Post-modern thought argues that there are no universal narratives, no universal values, that value judgements are subjective. As a consequence, postmodernists find themselves trapped by their inability to use concepts, which they must necessarily reject such as “truth”, “beauty” and “the good”. For example, Nigel Purvis, who correctly criticises Platonic idealism, also adopts subjectivism consequent to a rejection of philosophical idealism. However, simply because pre-modern thought sometimes adopted the wrong values does not mean there are no values. Rather, the failure of earlier generations to correctly resolve difficult social problems demonstrates that values can only be truly known, like anything else, through practical experience in the material world and that values develop with economic progress. Purvis mixes his rejection of Plato’s epistemology (philosophical idealism – eidos)46 – with post-modern axiology and thus reaches an incorrect conclusion. Axiology is not necessarily formalist or idealist. A materialist axiology is possible (and is the author’s position).

E. A New Natural Law Theory of International Relations The atomist/realist paradigm – which guided the world from one global war to another – was simplistic in theory and unworkable in practice. This was because of a failed synthesis due to rampant dualism, both epistemological and legal. A categorical break from dualism via a monist-materialist holist epistemology could permit the internationalist system to avoid repeating the same errors, which led to the world wars. 46 “Greek term for what is seen – figure, shape, or form. In the philosophy of Plato, the eidos is the immutable genuine nature of a thing, one of the eternal, transcendent Forms apprehended by human reason {Gk. nouò [nous]}. Aristotle rejected the notion of independently existing Forms and understood them instead as abstract universals.” Garth Kemerling, A Dictionary of Philosophical Terms and Names (2002).

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Combining holism and materialism in order to understand and explain the world might at first seem counterintuitive. However, even pragmatist Americans, who would question the use of theory because of their pragmatism and scepticism, would admit that understanding is necessary before control is possible – and that the alternative to a radical break from the past, a lawless world of rogue states and terror, is all too thinkable. Though it is true that holism and idealism were historically often linked (just as realism and materialism are usually linked) there is nothing necessary, i. e. unavoidable or compelling, about that linkage. This book breaks the habitual link between holism and idealism and remaps holism onto materialism. International Relations (IR) can only be understood by observing the world as an interconnected whole and comparing one’s hypotheses to the observed material reality.47 Once holism is correctly linked to materialism, we can explain why and how conflicts arise “out of nowhere” and suddenly engulf the world in flames. Once we understand that dualism and idealism and non-cognitvism entail conflict, preventing or remedying such conflicts at their root causes becomes possible. The clash of competing ideas within theories of ontology, epistemology and axiology and historical and legal observations leads to three conclusions from which the contemporary international system can be described. These are: (1) Transformationism: Transformation theories argue that economic and not military power is the decisive indicator of state influence in a nuclear armed world.48 In a world mad with “terrorism” this might seem counterintuitive: until one sees that just as the state cannot stop terrorists, terrorists generally do not stop states. (2) Neo-functionalism: Neo-functionalists49 argue that state institutions must be shaped piece by piece in manageable areas over the long term where international accords are possible, rather than vainly seeking overly ambitious unachievable goals in the immediate present.50 “Mere 47 For a general discussion of method see: Kenneth Einar Himma, Substance and Method in Conceptual Jurisprudence and Legal Theory, 88 Va. L. Rev. 1119 (2002). 48 For a brief summary of the tenets of various IR theories, including transformationism, see: Parkland Institute, Neo-Liberal Globalism and its Challengers: Sustainability in the Semi-Periphery (2000), at: http://web.archive.org/web/200010030 93900/http://www.ualberta.ca/~parkland/mcri.html. David Held, Anthony McGrew, David Goldblatt, Jonathan Perraton Global Transformations: Politics, Economics, and Culture 7 (1999). 49 For a summary of the various movements within functionalist theory see, Jürg Gabriel, Die Renaissance des Funktionalismus, Beiträge 27 ETH (2000), available at: http://www.cis.ethz.ch/gabriel/. 50 Id.

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governance” may seem “quaint” in a mad world. However, the failure of the old mechanism of governance, force, explains why governance is a key contemporary issue. The rise and success of functionalism in the post-war era, largely ignored by U.S. foreign policy, is one of the salient features of the post-Westphalian system. The European Union is only the most well known and most successful example of functionalism.51 It is not the only one. The UN human rights convention system is not as successful but is another example of functionalism. MERCOSUR, NAFTA, and the African Union may also prove to be functionalist success stories. (3) Liberalism: Classical liberal theory52 also provides guidance to determine the limits of individual and business liabilities in post-Westphalian transnational law. One of the great failings of the Westphalian system in the industrial era was the fact that trade and territory were directly linked, such that trade conflicts and territorial conflicts were mutually reinforcing and zero sum. The post-Westphalian order used and will continue to use the Breton Woods53 institutions – The International Monetary Fund (IMF),54 the International Bank for Reconstruction and Development (World Bank),55 and the General Agreement on Tariffs 51 Within functionalist integration theory, different metaphors are used to describe integration, e. g. “multi speed”, “variable geometry”, “a la carte” etc. For an overview of different branches of functionalist integration theory see Claus-Dieter Ehlermann, Increased Differentiation or Stronger Uniformity, EUI Working Paper RSC No. 95/21 (1995). 52 I. e. the theories of Aristotle (with qualification as to natural inequality) and, John Locke (with qualification as to alienation). 53 Thomas Oppermann & Ernst-Ulrich Petersmann, Reforming the International Economic Order 173 (1987). 54 The International Monetary Fund originally sought “only” to equilibriate member states’ balance of payments, exchange rates, and exchange controls. However, now the IMF puts conditions on its loan guaranties. Thus, domestic state policies, despite the increasingly moribund international law doctrine of “non-intervention”, are increasingly reviewed by an international organisation. “[B]udgets, taxes, and the money supply, but subsidies, wage policies, competition law, corporate governance, even accounting practices and regulatory reform” are subject to IMF scrutiny, all of, which erode sovereignty. Andreas F. Lowenfeld, The International Monetary System and the Erosion of Sovereignty 25 B. C. Int. Comp. L. Rev. 257, 257 (2002). 55 The World Bank also promotes human rights: “Largely as a result of scrutiny from non-governmental organisations and activists . . . the [world] Bank has begun to pay attention to social safety nets, human rights, and the notion of good governance. By 1990, the General Counsel determined that, ‘[v]iolation of political rights may . . . reach such proportions as to become a Bank concern due to significant direct economic effects or if it results [in violation of] international obligations’.” Id. at 290.

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and Trade (GATT – now the WTO)56 to consciously promote free trade57 not only to increase economic productivity58 but also to de-link trade and territory, both of, which work to prevent wars59 for market share60 and ensure peace61 – all of, which erodes the idea of sovereignty. The Breton Woods institutions seek to create prosperity in order to insure peace. If realism posits “peace through order” liberalism can be contrasted62 as positing that “prosperity63 will cause64 both justice65 and peace.”66 Though the U.S. has not yet understood functionalism, governance, or transformationism due to a failure to comprehend theory it has, thanks largely to its British heritage, been able to implement some of the features of liberalism. 56 Enrique Carrasco, Critical Issues Facing the Bretton Woods System: Can the IMF, World Bank, and the GATT/WTO Promote An Enabling Environment For Social Development? 6 Transnat’l L. & Contemp. Probs. I, I (1997). 57 This was nothing new. The formula “Free trade increases prosperity and reduces the likelihood of war” had already been recognised by the mid 1800s. See, e. g. John R. Finneran, Free Trade and the Irish Famine, 41 The Freeman (1991), available at: www.libertyhaven.com/regulationandpropertyrights. 58 Enrique R. Carrasco, supra n. 56 at II (noting economic prosperity – in the first world). 59 Enrique R. Carrasco, supra n. 56 at I (argues post-war liberal global economic order guaranteed prosperity and peace). 60 But for a critical view of the equation of free trade, prosperity and peace see: Jedrzej Frynas and Geoffrey Wood, The Liberal View of the Trade-Peace Relationship Re-considered: Oil and Conflict in Angola (2002), available at: http:// www.vad-ev.de/papers/frynas.pdf. 61 Richard M. Ebeling, Can Free Trade Really Prevent War? Mises Institute (2002), at: www.mises.org. 62 For a comparison of realism and transformationist theory see Sam Roggeveeen, Towards a Liberal Theory of International Relations, Policy (2001), available at: http://www.cis.org.au/Policy/aut2001/polaut01-6.pdf (Arguing that realism is both too pessimistic and possibly too relativist to be consistent with liberalism). 63 Adam Smith long ago explained why trade is a positive sum game and favors both parties. Ricardo explained that this was true even where one party has an absolute advantage in all goods being traded. For a basic summary of liberal trade theory’s presumptions see Robert Schenck, Comparative Advantage (1997), available at: http://ingrimayne.saintjoe.edu/econ/International/Comparative.html or refer directly to Adam Smith: Wealth of Nations (1776) and David Ricardo, On the Principles of Political Economy and Taxation (1817). 64 Paul W. Kahn, American Hegemony and International Law Speaking Law To Power: Popular Sovereignty, Human Rights, and the New International Order, 1 Chi. J. Int’l L. 1, 2–3 (2000) (critiques liberal hypothesis that by focusing on trade and prosperity war is averted). 65 Enrique R. Carrasco, supra note 56 at VI. 66 John Oneal and Bruce Russet, Assessing the Liberal Peace with Alternative Specifications: Trade Still Reduces Conflict, 36 Journal of Peace Research (1999). Available at: http://www.yale.edu/unsy/brussett/.

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The utter failure of the proponents of the Project for a New American Century to comprehend the existence and significance of two of these three intellectual trends explains the bankruptcy of U.S. foreign policy and its incapacity to react appropriately to the challenges it now faces.

F. Conclusion In conclusion, a combination of liberalism, functionalism, and transformationism developed out of materialist presumptions but expressed within a holist worldview will better explain and guide the international system than the failed presumptions of realists and atomists. By liberalism classical liberalism and not pseudo “neo-liberalism” is intended. Classical liberalism finds its champion in Aristotle. Aristotle describes right action as the median between extremes. He proposes liberality, being generous to the right person to the correct extent and for the right reasons as the median between the vices of greed and miserliness. Later liberal theorists of note are Rousseau, John Locke (Two Treatises of Government), Adam Smith (The Nature and Causes of the Wealth of Nations), and (inter alia) David Ricardo.67 For classical liberals like Aristotle the state exists to ensure the good life for its members.68 While later liberals such as Smith69 or Locke70 may be individualists it is clear that Aristotle certainly and probably Rousseau and even Hobbes were collectivists,71 i. e. holists (though whether Hobbes is a 67

David Ricardo, The Principles of Political Economy and Taxation (1817). “Every state is a community of some kind, and every community is established with a view to some good; for mankind always act in order to obtain that, which they think good. But, if all communities aim at some good, the state or political community, which is the highest of all, and, which embraces all the rest, aims at good in a greater degree than any other, and at the highest good.” Aristotle, Politics (350 B.C.) Book One, Part I (ca. 350 B.C.). 69 E. g. “Though it may be true, therefore, that every individual, in his own breast, naturally prefers himself to all mankind, yet he dares not look mankind in the face, and avow that he acts according to this principle.” Adam Smith, The Theory of Moral Sentiments (1759). It is not that Smith wants to be an individualist, rather that he feels compelled by human nature to accept the practical fact of human egoism: he then seeks to harness that egoism to serve society. 70 Locke clearly assigns the individual primacy. The individual is prior to the state for Locke for the state is only formed by their consent. “when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that, which acts any community, being only the consent of the individuals of it” John Locke, Second Treatise of Government, Ch. VIII, Sec. 96. (1690). 68

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liberal72 can be debated). This is very different from the atomist and neoliberal position, which denies the existence, let alone primacy, of any collective. The author’s liberalism must be qualified however because many liberals (not Aristotle) are also social-contract theorists. The author rejects social contract theory because it does not correspond to empirical reality. On this point the author splits from Locke,73 Rousseau and Hobbes74 (and Rawls,75 Dworkin,76 and Nozick77 for that matter). Despite their disagreements on the origins of the state and the role of the individual vis à vis the collective, Locke and Aristotle agree that objective moral values do exist and can be the object of choice and rational inquiry. In contrast, modern neo-liberal theory asserts that moral values are subjective and relative.78 When modern neo-liberal theory claims to be liberal and claims that values are subjective it betrays its ignorance. Liberality means the art (not science) of generosity, of making the moral choice of 71 For Hobbes it is clear that the State is greater than the individual: “by art is created that great LEVIATHAN called a COMMONWEALTH, or STATE (in Latin, CIVITAS), which is but an artificial man, though of greater stature and strength than the natural, for whose protection and defence it was intended” Thomas Hobbes, Leviathan, Introduction para. 1 (1651). 72 “. . . the sovereign is absolute . . . or else there is no sovereignty at all” Hobbes, id. at Ch. XX: “Of Dominion Paternal And Despotical” (wherein Hobbes argues that the conquered also consent to the conqueror’s government). 73 John Locke, Second Treatise of Government (1764), Ch. VIII, Sec. 96. It is exactly on these points where the author splits from Locke. No state of nature could exist, nor was there ever any transfer of personal sovereignty to the state. Further the state is not a monolith expressing the perfect united will of all its inhabitants. 74 Hobbes clearly believes that government is formed through a pact. His subject (not citizen) assents to the pact in this manner: “I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner. This done, the multitude so united in one person is called a COMMONWEALTH; in Latin, CIVITAS. This is the generation of that great LEVIATHAN, or rather, to speak more reverently, of that mortal god to, which we owe, under the immortal God, our peace and defence.” Hobbes, Leviathan, Ch XVII. 75 See, e. g., John Rawls, A Theory of Justice, Cambridge, Mass.: Belknap Press of Harvard Univ. Press (2001). 76 See, e. g., Ronald Dworkin, Taking Rights Seriously, London: Duckworth (1981). 77 See, e. g., Robert Nozick, Anarchy, State, and Utopia, Oxford: Blackwell (1975). 78 See, e. g., Murray N. Rothbard, ed., The Logic of Action (Edward Elgar Publishing Limited, 1997), pp. 78–99; Ludwig Mises,“Epistemological Relativism in the Sciences of Human Action” (1962), in Richard M. Ebeling. (ed.), Money, Method and the Market Process, Amsterdam: Kluwer Academic Publishers (1990).

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when and to what extent and to whom one should or should not be generous of what the virtuous mean is between two extremes. It is a value choice. Cognitivist axiology is inherent in the classic notion of liberality (as in all of classical thought). Modern neo-liberalism, divorced from any theory of objective value or morality, eventually finds itself in the same morass of ambiguity, and sterility, which plagues post-modern thought.79 To close, the world can still escape from the incorrect presumptions, which drove it into two world wars and continue to threaten it with a third. The correct lesson of September 11th is not the continuing relevancy of military force but rather its irrelevance. As the destructive power of weaponry continues to grow, states become increasingly vulnerable to non-state actors. The correct lesson of September 11th is however counterintuitive. The realist presumption that force is the sine qua non of statecraft and that political relations are fundamentally zero sum power plays are as wrong in 2011 as they were in 1938 and 1918. By comprehending past failures through theory it is possible to avoid repeating them.

79 For an example see, Nigel Purvis Critical Legal Studies In Public International Law, 32 Harv. Int’l L.J. 94 (1991).

Chapter 2

Legal Theory in Antiquity: Aristotle A. Introduction We can rightly criticize Aristotle because he was racist,1 sexist,2 and homophobic and believed slavery was natural, inevitable and good.3 Though Aristotle was wrong on race, sex, and gender he was right about most everything else he wrote – and he wrote so much and about so many topics. Aristotle basically invented logic, a theory of rhetoric and wrote the first extant works on political science,4 psychology, botany, astronomy and meteorology. He was the first to systematically study the natural world scientifically and in detail, or at least the first whose works are (mostly) extant. Though others preceded Aristotle in individual fields, most of the pre-Socratic works are sadly fragmentary.5 Plato basically limited himself to drama, philosophy and mathematics and his thought is not systematic, unlike Aristotle’s. Aristotle, good scientist that he was, built on prior thinkers. Sadly, excepting Plato, we only know of them indirectly and fragmentarily. Thus, for good and ill, Aristotle’s thought permeates western thinking, influencing it in countless ways both evident and hidden.

B. Aristotle’s Contributions to Legal Science I. Logic and Dialectical Reasoning Aristotle was a materialist.6 His was really the first empirical testable science. I regard Aristotle as a monist. Certainly, dualities appear in Aristotle’s thought but his materialism (he was certainly a materialist) constrains 1 “It is normal that the Greeks command the barbarians” Aristotle, Politics 1252 b 7 and 1237 b 23–32. 2 “[I]n discussing women, Aristotle leaves no doubt about their subordinate and domestic role. He states clearly that men are better fitted to command than women (1259b2), W.W. Fortenbaugh, “Aristotle on Slaves and Women” Articles on Aristotle (1977), Duckworth, London, p. 137. 3 Aristotle, Politics 1255 a 1. 4 Aristotle, Nicomachean Ethics; Aristotle, Politics. 5 That is particularly true of Heraclitus, who is only available in fragments.

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such apparent dualism into some greater unified whole – apparent dualisms can be contained within monist thought because the apparent duality is part of a higher unity. To be exact, that happens through dialectical synthesis of competing oppositions. And Aristotle, like Heraclitus, was a dialectician.7 Aristotle is clearly a materialist and that commits all dualities eventually to some greater unified whole – materialism implies monism. Aristotle invented philosophical logic, the systematic study of right and wrong reasoning. Cicero believed law was logic in action.8 If law is logic in action then Aristotle dominates the law just on that basis. Of course, there is the alternative volontarist thesis that law is nothing but an armed command, the “bad man theory” that law relies ultimately on force.9 But in that case criminals would also be law givers. Voluntarism leads straight to the law of the jungle with no exit. Yet, as Aristotle noted, it is precisely the fact that humans live in States and not as savages that marks human society and separates it even from the other social and specialized animals such as bees10 or wolves. Other animals are social. However, human society is the most complex. Poetically, Aristotle notes that he who lives outside the state is either a brute beast or a God.11 Because humans are rational, political (social) animals with the gift of speech12 we live in Cities and not as savages.13 Thus, our laws are higher than those of a dagger wielding thief. This is why Aristotle’s thinking is powerful: He reaches the 6 Aristotle was a materialist. Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 747. 7 Aristotle, Posterior Analytics (ca. 350 B.C.), translated by G. R. G. Mure, Book I, Part 1. 8 “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting . . . And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge.” Marcus Tullius Cicero, De Republica III, xxii, 33 (Clinton Walker Keyes. Ph. D., trans. 1928) (51 B.C.). 9 Oliver Wendell Holmes, The Path of the Law, 110 Harv. L. Rev. 991, 993 (1997) (Reprint of address Justice Holmes of the Supreme Judicial Court of Massachusetts delivered at the dedication of the new hall of the Boston University School of Law on Jan. 8, 1897). 10 Aristotle, Politics, Book I, Part 2. 11 “The proof that the state is a creation of nature and prior to the individual is that the individual, when isolated, is not self-sufficing; and therefore he is like a part in relation to the whole. However, he who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god: he is no part of a state.” Aristotle, Politics, Book I, Part II (ca. 350 B.C.). 12 See Aristotle, Politics, Book I Part II (Translated by Benjamin Jowett) (350 B.C.). 13 Aristotle, Book I, Part 2.

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correct result on most questions of social science with one exception: The (supposedly) genetic nature of inequality. Logic was not the only thing Aristotle invented or discovered. He also invented botany, zoology, grammar and advanced existing knowledge in astronomy. His taxonomies, the first ever really, are still the basis of much good science. His philosophical logic, extended by the scholastics, is still the linguistic representation of what is now also modelled using the mathematical logic pioneered by Boole. Boole took Aristotle as his starting point, recasting propositions of natural language into mathematical form. Boole’s calculus at once clarifies certain issues, making certain problems explicit (for example, order of precedence of operators) and solvable. However, Boole also obscures others, most notably, the paradox of material implication, which was clear in philosophical logic but is obscured by mathematical logic. Boole’s ideas, building on Aristotle, are the basis of computer science including logic theorem proving computer programs such as prolog. Aristotle influences legal science first and most broadly through the idea of logic and then by his influence on Cicero. Cicero correctly recognized that law is living logic. We can also trace the idea of separation of powers to Aristotle.14 Equity courts too find their roots in Aristotle.15 In Aristotle’s schema of justice the idea of equity (aequitas) plays the roles as “backstop” to ensure that deliberative legal reasoning (the formal content of words) remains within the bounds of fairness. Universal social truths are very rare. Social sciences are dominated by probabilistic and not by deductive reasoning. This understanding, that there is both deductive reasoning, which is necessarily and inevitably true in all times and in all places and at the same time that there is a probabilistic practical reasoning that is more likely true than not that holds true in most places and at most times is also an explicit feature of Aristotelian thought and was wrongly abandoned by Hume and much of modernity. Both deductive and probabilistic reasoning are used by courts to this day. Aristotle clearly distinguishes between practical reasoning (phronesis) – which includes probabilistic reasoning – and deductive reasoning. And this clarity influences the law where we see that probabilistic and deductive reasoning are used to compliment each other in pursuit of the just result. 14 Separation of powers: O’Brien v. Jones, 23 Cal.4th 40, 65; 999 P.2d 95, Jun 01, 2000. 15 “This is in fact the nature of the equitable; it is a rectification of law where it fails through generality.” Teamsters & Employers Welfare Trust of Illinois v. Gorman Bros. Ready Mix, 139 F.Supp.2d 976, 978 (C.D.Ill.)(Apr 17, 2001). (Citing: Aristotle, The Nicomachean Ethics of Aristotle, Bk. 5, XIV, p. 172 (J.E.C. Weldon trans., Macmillan and Co., Ltd.)(1930)).

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II. Tort Law: Causality is Rooted in Aristotle’s Thought Aristotle influences tort law in the idea of varieties of causation. Aristotle discusses material, formal, efficient and final causality. Each of these concepts has a corresponding influence in the law.16 In tort law we see the idea of cause in fact (material and formal cause) and proximate cause (efficient cause).17 Final cause is teleology. Teleological reasoning, the idea of final objectives of the law, is also a hallmark of Aristotelian thought. Teleology runs throughout the law – laws always serve some purpose and it is normal to argue that the law should be interpreted consistent with its’ purpose: teleological interpretation.18 Aristotle’s ideas on causality, equity, and logic heavily influence the law. Aristotle’s greatest influence is his theory of justice, which we now examine because it is the basis for the ideas about justice I present in this book.

C. Aristotle and Justice Aristotle’s has a particularly well developed definition of justice, one that goes well beyond Plato’s rudimentary efforts. For Plato, justice essentially boils down to each person in society holding their appropriate position – in other words, Platonic justice is all about being in one’s caste.19 So, when I criticize Aristotle for being sexist, racist and homophobic it is with the contextual awareness that he was much less caste-oriented than Plato. Paradoxically however Aristotle was homophobic, whereas Plato was not. This shows that progress is not linear but cyclical, that human society takes two steps forward but one step back. Today we know that Plato was right about homosexual persons and that we ought to be tolerant of homosexuals and that Aristotle was wrong in his idea of the “natural” slave. Yet Aristotle was progress overall relative to Plato because Aristotle was a ma16 See, e. g., State ex rel. Sayad v. Zych, 642 S.W.2d 907, 916 (Mo., Dec 03, 1982). 17 See, e. g., Robinson v. City of Detroit 613 N.W.2d 307, 330; 462 Mich. 439, 484; State Farm Fire & Casualty Co. v. Slade, 747 So.2d 293, 313 (Ala. 1999). 18 “. . . law itself is a teleological endeavor, and that its purpose is to guide people as they go about their daily activities. As such, the law should be clear and understandable, for how can people follow its dictates if it is not? If you take away that clarity to a sufficient extent, it is proper to question whether you are dealing with law at all, as opposed to raw power. In that regard, see, Lon J. Fuller, The Morality of Law (Yale University Press, 1964).”; U.S. v. General Dynamics Corp., 644 F.Supp. 1497, 1500; 33 Cont.Cas.Fed. (CCH), P 75,070 (C.D.Cal.,1986). 19 Plato, Republic, Book V.

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terialist and, in my opinion, a monist and did not believe people should be so rigidly trapped within their castes as did Plato. Aristotle divides the world into exact (natural) and inexact (human) sciences. Per Aristotle, the political is an imprecise subject.20 Thus, its elements at times belong to tekhne,21 (art – the art of politics), where opinion (doxa) reigns rather than in episteme (science – political science)22 where one finds certainty. Insofar as the political is thus a subject of dialectical reasoning23 I would like to criticise the ideas of Aristotle in order to improve our practice24 through the exchange, comparison and synthesis of ideas in relative opposition, which is the dialectical method.

I. Political Justice – A Relation Aristotle distinguishes between acts, which are either just or unjust, people who are just or unjust and justice and injustice generally.25 All these ideas are contextualized for Aristotle by the idea of a relationship between the citizens of the Polis – political justice. The relation between citizens (their political role in The City) is not only ontologically central it is also teleologically key,26 being the highest expression of human development and the finality of the Polis.27 For Aristotle, justice can only exist 20 Recall here that Aristotle considers there is less certitude in human sciences than in natural sciences, that the human sciences are the exact than natural sciences and that we should only search for the amount of precision that he subject allows. EN 1094 b 24. 21 Aristotle, Nicomachean Ethics, 1098b 23–29. Traduit par J. Tricot, Paris: Librairie Vrin (1959), p. 31 note 3 and p. 108 note 1. 22 Episteme concerns invariable things that are true in all places and times. “those things, which cannot be other than they are” Aristotle, Nicomachean Ethics,1139 b20–23. In contrast tekhne (art) is concerned with “things that can be other than they are” Aristotle, Nicomachean Ethics, 1140 a 1. 23 According to the commentator, logikos or dialektikos concerns the generalities, opinions, and thus is connected to tekhne. By way of contrast, phusikos concerns itself with real facts, which are certain and thus is linked to episteme Aristotle, Nicomachean Ethics, Translated by J. Tricot, Paris: Librairie Vrin (1959), p. 108 note 1. 24 According to the commentator the objective of praxis is to work on one’s internal constitution. Id. p. 32 note 3. 25 “. . . one can do an injustice without for all that being unjust” Aristotle, Nicomachean Ethics, 1134 a 5–16 Other sources of the distinction between the just act, the just man, and justice are found at Aristotle, Nicomachean Ethics, 1129 a 311129b 7, 1136 a 25-3, 1135 b 25, 1135 a 16, and 1133 b 29-1134 a 1. 26 Aristotle, Nicomachean Ethics, 1134 a 24–30. 27 “. . . the just is that, which is susceptible to create or preserve in whole or in part the well being of the political community.” Aristotle, Nicomachean Ethics, Book V, Ch. 1, verse xii, 1129, a 18–20.

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among equals28 – that is, among adult freemen.29 Aristotle divides the political justice (the relation of citizens among each other) into natural justice and legal justice,30 the former being universal geographically, the other being unique to each Polis (State). To determine this relation, one must describe the Polis, and analyse31 the Polis from its parts toward the whole.32 1. Elements and Origins of the Polis a) The Family The family is the material cause of the Polis in the thought of Aristotle. The family is the “atom” of the Polis in that the Polis grows from the individual to the family, from the family to the village, and from the village to the Polis.33 The character of the Polis as the inevitable means to live and the necessary means to live well34 indicates that it is prior to the individuals who constitute it.35 b) The Individual: Dependency Aristotle holds that the individual is not sufficient unto himself.36 The conclusion from this fact of interdependence with respect to reproduction,37 economy,38 and society39 is the inevitability of the Polis and of the political.40

28

Aristotle, Nicomachean Ethics, 1134 a30–32. Aristotle, Politics, 1275 b 22–24, 1275 b 7–8, 1275 b 14–16. 30 Aristotle, Nicomachean Ethics, 1134 b 18–20. 31 “Things are always defined by their function and potential” Aristotle, Politics, 1253 a 22–23. 32 Aristotle, Politics, 1252 a 16–24. See also Politics, 1252 a 24–25 re: analysis. 33 The idea that the City (Polis; state) develops from the extension of the family is seen in Aristotle, Politics, 1252a 26; 1252b 15–16; 1252b 27. 34 Aristotle, Politics, 1252 b 26–30. 35 Aristotle, Politics, 1253a 19–27. 36 “. . . the individual seen in isolation is not self sufficient”, Politics 1253a 27. 37 Aristotle, Politics, 1252 26–35. 38 Aristotle, Politics, 1252 a 31–35. 39 Aristotle, Politics,1252 b 26–30. 40 “These considerations show that the city is among those facts, which exist naturally, and that man by nature is a political animal.” Aristotle, Politics, 1253 a 2. 29

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2. Inequality Men also are, according to Aristotle, naturally41 and biologically42 unequal. This “natural” inequality creates a hierarchy according to abilities: male freemen, female freemen, male children of freemen, female children of freemen and slaves.43 Aristotle justifies this hierarchy as being for the benefit of all.44 a) The Condition of Slaves The fact that Aristotle is inegalitarian is seen most clearly in his analysis of slavery. For Aristotle, the inequality that creates and justifies slavery is natural45 and biological.46 For all that he hesitates to postulate a strict relationship between legal status and quality of being (the soul, perhaps: in his thought).47 Nevertheless he concludes that the natural slave is a slave for he deserves to be a slave48 naturally due to the strength of his body or deserves to be a slave because of the weakness of his soul (spirit; mind?), and perhaps both. In short, the slave is dehumanized and comparable to an Animal.49 Even if slavery were not “natural” and to the “benefit” of the slave, Aristotle regards slavery as an economic necessity50 and thus as justified because it was a necessary basis of civilization. b) The Condition of Women The fact that Aristotle is inegalitarian is also evident from his analysis of relations between men and women. Biological51 and natural52 inequality ex41

“. . . it is by their nature that most beings command or obey”. Aristotle, Politics, 1260 a 9. 42 Aristotle, Politics, 1254 a 20–24. 43 Aristotle, Politics, 1260 a9–14. 44 “. . . l’enfant comme l’esclave est une ‘partie’ du père et ne peut donc subir l’injustice de sa part, mais il trouve son avantage à cette relation puisque le père exerce son autorite de manière royale, pour le bien de son fils.” Solange Vergnières, Ethique and Politics Chez Aristotle, PUF 1995, p. 163. 45 Aristotle, Politics, 1255 a 1. 46 Aristotle, Politics, 1254 b 26–31. 47 Aristotle, Politics, 1254 b 31–32. 48 Aristotle, Politics, 1254 b 33–37. 49 Aristotle, Politics, 1254 b 25. 50 Aristotle, Politics, 1254 b 25. 51 “En posant le problème du naturel servile, Aristotle a mis le doigt sur une possible violence sociale exercée sur des hommes qui ne meritent pas d’être d’esclaves. Pour les femmes la doute n’existe pas. La femininite est marquée dans the corps de

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plains and justifies, according to Aristotle, the treatment of women as inferior to men.53 3. Rationality For Aristotle, fully developed humans, unlike animals (who cannot speak) and natural slaves (who can comprehend ideas which are explained to them but cannot form their own ideas) are gifted with reason54 i. e. deliberative capacity. Men, even natural slaves, seek to understand, to express themselves and to reach the finality of their development as people. It is this excellence, which makes of man the most perfect of animals.55 4. State of Nature? Aristotle’s logic regarding the origin of the state is also powerful. The “state of nature” (a state of existence before the existence of states) is fiction. The anthropological evidence shows that “pre-political” societies are structured around extended families. No man is self sufficient. For Aristotle the state is “natural” in the sense that the state is the inevitable consequence of the human condition. However, to call the state natural does not mean that there is a state of nature – a human condition outside of familial or state structures (including pre-state structures). Likewise, to prove the necessary character of social organization does not prove that this society must necessarily be patriarchal or inegaliatrian. Anthropologists have discovered that matriarchal societies also existed. Although Aristotle is right as to the origin and inevitability of the Polis (State) I disagree with his idea that the state must also inevitably be inegalitarian and patriarchal.56 manière incontestable et la nature montre clairement le rôle subordonnée qui convient aux femmes. Cette evidence, n’empêche pas d’ailleurs une certain equivoque dans le manière dont Aristotle décrit la finalite le la nature feminine. Selon les traites biologiques, la naissance d’une femelle traduit un échec de la finalite puisqu’elle c’est provoquée par une résistance du matière à la transformation de la forme masculin. En même temps, Aristotle sait bien que l’existence des femmes est necessaire pour que la vie tout simplement reproduise.” Solange Vergnières, Ethique and Politics Chez Aristotle. Paris: Presses Universitaires Francaises (1995), p. 171. 52 Aristotle, Politics, 1254 b 10–15. 53 “. . . in discussing women, Aristotle leaves no doubt about their subordinate and domestic role. he states clearly that men are better fitted to command than women (1259b2), W.W. Fortenbaugh, “Aristotle on Slaves and Women” Articles on Aristotle (1977), Duckworth, London, p. 137. 54 Aristotle, Politics, 1253 a5–15. 55 Aristotle, Politics, 1253 a 33. 56 Robert Graves, The Greek Myths; Black Athena. Tacitus, Germanicus.

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5. The Ends of the Polis a) The Good In the thought of Aristotle, objects are defined by their motion (kinesis) towards their own ends (telos). This finality (goal, end) is the nature of the object.57 The end of the State58 (final cause) is “the good”.59 b) Autarchy For Aristotle, that, which contains is more perfect/complete than that, which is contained – the whole is more perfect than its parts.60 Aristotle is a holist. Although the parts of the Polis – individuals61 and families,62 are not autarchic regarding their development, the state seen as a whole is complete and self sufficient.63 Thus this autarchy, being perfect, is a part of the good toward which political life in the state directs us.

II. Typology of Justice According to Aristotle Aristotle begins his fifth book of Ethics with a definition of justice. He affirms that justice is a polysemous term64 and thus he chooses to begin with a definition à contrario.65 If one recognizes the unjust perhaps one can understand the just by seeing it as the opposite of the unjust. The unjust man is an outlaw,66 unfair and greedy67 and in the end is suffering from a type of ignorance.68 Thus the just is the exact opposite of these traits69 – the lawful.70 Aristotle implies that the just and the unjust are opposites and mutually exclusive.71 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71

Aristotle, Politics, 1252b30–34. Aristotle, Politics, 1252 a 1. Aristotle, Nicomachean Ethics, 1094a 2–15. Aristotle, Politics, 1253 20–24. Aristotle, Politics, 1253 a 25–27. Aristotle, Politics, 1253 a 19. Aristotle, Nicomachean Ethics, 1097b 7–10. Aristotle, Nicomachean Ethics, 1129 a 27. Aristotle, Nicomachean Ethics, 1129 a 18–20. Aristotle, Nicomachean Ethics, 1129b 11. Aristotle, Nicomachean Ethics, 1129 a 31–33. Aristotle, Nicomachean Ethics, 1110 b 28–29. Aristotle, Nicomachean Ethics, 1129 33–34. Aristotle, Nicomachean Ethics, 1129b 11–14. Book V, Chapter 1, verse xii. The thought of Aristotle is generally binary.

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We have already explained the nature of political justice as being the means and ends of the whole and that political justice is divided into natural justice and positive law. Positive justice is itself further divided again in two parts: universal and particular justice. 1. The Just Man, Justice, and Just Acts a) The Just Man Aristotle distinguishes between just acts, just men, and justice.72 According to Aristotle the just man obeys the laws. This kind of justice, lawfulness, appears to be seen by Aristotle as a necessary but insufficient condition for the other types of justice. b) Universal Justice (the Lawful) Universal justice is that, which encompasses just acts.73 It is in the same type of relation with just acts as the whole is to its parts. c) Just Acts: Justice in the Particular (Fairness) The type of justice, which concerns the character of acts rather than of men, is called justice in the particulars. Particular justice is divided once again into two sub-parts: distributive justice and corrective justice. 2. Distributive Justice (“Geometric” Justice) Distributive justice is concerned with the transactions between the Polis and individuals. In modern terms it is called “public law” in the civilianist jurisdictions (as in: “public international law”). The question answered by dis72

Aristotle, Nicomachean Ethics, 1133 b 29–1134 a 3. Aristotle, Nicomachean Ethics, 1130b 8–18; “The common practice, adopted in so many manuals, of appealing to these diagrams – Eulerian diagrams as they are often called – seems to me very questionable. Indeed when it is done, as it is generally done, without a word of caution as to the important distinction between the implied theories about the import of propositions, it seems to me that there can be no question as to its being wrong. The old four propositions, A, E, I, O do not exactly correspond to the five diagrams, and consequently none of the moods in the syllogism can in any strict propriety be represented by these diagrams.” Venn, Symbolic Logic, Chelsea Publishing, Bronx NY (1971) (originally published in London, 1894.), p. 17 At the same time however, these diagrams show the irrelevancy of the distinction between subject and predicate. Id. at 7. 73

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tributive justice is, which standards shall be used74 to determine the distribution75 as a geometrical,76 i. e. proportional, relation77 (ratio) of public goods.78 3. Corrective Justice (arithmetic justice) Corrective Justice is concerned with the transactions of private individuals with each other. In modern civilianist terms it is “private law” (as in: “private international law”).79 Corrective justice is determinant of just relations after the initial constitutive distribution of public goods.80 Private corrective transactions are again divided into two sub-parts: Voluntary transactions – (i. e. Contract law) and involuntary transactions (torts and crimes). Involuntary transactions in turn are either hidden or violent (and possibly both). Corrective justice is analogical to an arithmetic relation.81 Corrective justice assures maintenance of the status quo ante despite whatever material transformation.82 Again, one sees the idea of particular justice as an intermediate virtue between values, which are either too large or too small83 and as addressing certain acts rather than certain men.84 Particular justice is very important to the state for it guaranties business and social stability,85 despite economic inequality.86

III. Critique of the Aristotelian Theory of Justice 1. What are the Sources of Inequality? One has seen that, according to Aristotle, the inequalities of virtues are the result of natural and biological differences including racial differ74

For a listing of specific legal forms found in contractual and tort law in Aristotle’s schemata see: Aristotle, Nicomachean Ethics, 1130 b 30–1131 a 8. 75 Aristotle, Nicomachean Ethics, 1131 a 24–28. 76 Aristotle, Nicomachean Ethics, 1131 b 9–20. 77 Aristotle, Nicomachean Ethics, 1131a 29–31. 78 Aristotle, Nicomachean Ethics, 1131 b 30. 79 Aristotle, Nicomachean Ethics, 1131 b 32–34. 80 Aristotle, Nicomachean Ethics, 1131b 24–1132a 2. 81 Aristotle, Nicomachean Ethics, 1131 b 32–1132 a 1. 82 Aristotle, Nicomachean Ethics, 1132b 18–20, Aristotle, Nicomachean Ethics, 1132a 24. 83 “. . . the equal is the median between the greater and the lesser” Aristotle, Nicomachean Ethics, 1132 a 14. 84 Aristotle, Nicomachean Ethics, 1132 a 2–4. 85 Aristotle, Nicomachean Ethics, 1132 b 32–35. 86 Aristotle, Nicomachean Ethics, 1133 a 5–18.

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ences.87 Nevertheless, his determinism is not absolute (as would be the case in an oligarchy) and does not exclude the possibility of other influences causing inequalities of abilities and rewards.88 Inequality is also the result of education (or lack thereof)89 and of morale choices90 (hexis).91 I do not contest that different persons have different capacities. However, I am much less of a biological determinist than Aristotle and much more of an egalitarian as to the results, which should follow from unequal abilities. Essentially Aristotle and I disagree on the measure of distributive justice. Aristotle favours excellence as the measure for distributive justice whereas I tend more toward equality as the best measure for distributive justice. This is because Aristotle thinks inequalities are essentially the result of genetic inheritance (good breeding) and moral choice whereas I think they are the result of pecuniary inheritance and moral choice. 2. What are the Consequences of Inequality? a) Limitation of the Development of Individuals The first injustice, which results from Aristotle’s presumption of natural (genetic) inequality, is that it limits the teleological development of citizens of the Polis. The slave born a slave can never become more than a slave. This limitation expresses itself in patriarchy and the caste system. b) Limitation of the Development of the Polis The second injustice, which results from the supposedly natural inequality postulated by Aristotle, is that it limits the development of the city itself. If one takes the contrary postulate, that inequality is not naturally inborn (genetic) then one reaches a different conclusion. The abilities of persons born to wealth are no longer inborn but rather due to luck of birth. Then the self justifying character of the system of inequality becomes evident as viciously circular: material inequality creates unequal capacities, which justifies the material inequality. The logical consequence is dynastic 87 “It is normal that the Greeks command the barbarians” Aristotle, Politics, 1252 b 7 and 1237 b 23–32. 88 “. . . our abilities are natural to us whereas we are not born naturally good or vicious” Aristotle, Nicomachean Ethics, 1106 a 9–10. 89 Aristotle, Nicomachean Ethics, 1103 a 11–25. 90 Aristotle, Nicomachean Ethics, 1334 a 1–1134 a 3. 91 Habitus; activité habituelle; hexis; Aristotle, Nicomachean Ethics, 1098 b 30– 35.

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rule and plutocracy. The problem is that such rulership limits the development of the city and stunts healthy internal criticism channelling reform into rebellion. This leads to stagnation such as could be seen fairly clearly in the Mandarin system of feudal China or in the Satraps of India. Alternatively it leads to social collapse as was witnessed in the Roman Empire. “Natural” slaves have no interest to defend the system, which enslaves them. c) Economic Inequality When Aristotle speaks of the determinant choice of a measure for distributive justice, he proposes excellence, birth, and citizenship. Material inequalities are the result of social inequality. These inequalities are fair according to Aristotle because it is a matter of differing capacities and virtues of different individuals. To justify this proportional inequality Aristotle must make the presumption that different types of labour have a different value according to the quality of the labourer. For example, an hour of the labour of a physician would have more worth than that of a farmer.92 For Aristotle these inequalities are of a natural character either due to merit or birth. However, this inequality is contestable. If the end of the city is the survival and obtention of the good life for its citizens then the city guaranties the survival of its citizens. Thus the just state guaranties a certain minimum and maximum of income in order to prevent concentrations of power and oligarchy. The economic value of labour should be a function of the time invested in production. Thus in principle all labour time ought to be of relatively equal value. This is especially true when one recalls that manual labour is hard and dangerous risking health and life of the worker. Few physicians are maimed or killed at work whereas some farmers and more than a few miners are.

IV. Global Elements of Justice: Volition and Equity The two final elements of the Aristotelian conception of justice are volition equity. I call these global elements because they are “omnipresent” in the consideration of justice.

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Aristotle, Nicomachean Ethics, 1133 a 10–14; 1133 a 16–17.

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1. The Relation between Volition and Culpability: Aristotle’s Influence on the Concept of Culpability in the Common Law Involuntary acts cannot be evaluated as either just or unjust.93 Thus one can act in an unfair way without however being an unfair person.94 Aristotle thus erects four levels of responsibility. These are found in the law to this day: – Negligence without Fault (in the law also known as mere or ordinary negligence); – culpable Negligence (in the law known as gross negligence); – intent without forethought (intending the act, but not the consequences); – malice aforethought95. These distinctions are found in the law to this day. There is a problem with this schema: The mind of another is not truly knowable. We can only observe objective actions that flow therefrom. Aristotle, and the law, seeks to sanction in part based on mental state. However, how can the law determine subjective mental states? We can only find mental states by looking at objective evidence of subjective mental states. Thus, law addresses acts as the objective evidence of subjective mental states. Aristotle also influenced the law of diminished responsibility,96 the idea that the mentally retarded or insane ought not to be held to the same standard as persons of sound mind. 2. Equity For Aristotle the unjust man suffers from the vice of greed, taking more than his fair share.97 The just man has the opposite tendency and errs on the side of taking a bit less than his fair share, especially when in doubt.98 A similar characteristic is found at the level of the city – equity. The end 93

Aristotle, Nicomachean Ethics, 1135 a 15–20. “. . . one can commit an injustice without however being unjust”, Aristotle, Nicomachean Ethics, 1134 b 16. 95 Aristotle, Nicomachean Ethics, 1135 b 10–25. 96 See, e. g., Reniger v. Fogossa (Ex.Ch. ca. 1551), 1 Plowd. 1, 19 [75 Eng.Reps. 1, 31] in 1 Hale, Pleas of the Crown (1680), pp. 31–33, cited in People v. Whitfield, 7 Cal.4th 437, 868 P.2d 272 (Feb 28, 1994). 97 Aristotle, Nicomachean Ethics, Book V, Chapter 1, verse viii. 1129 b 1. 98 “The fair man is inclined to take less than his due” Aristotle, Nicomachean Ethics, 1136 b 20–21. 94

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of equity is to correct the errors99 of the positive law, which result from strict legalism.100 Equity also serves to apply the will of the legislator in situations, which were unforeseeable.101 The judge in equity places himself in the position of the legislator asking what the legislator would do had it known the facts in this case. Equity serves to render the positive law more flexible and is he final guarantor of substantive justice. Of course the equity courts in the common law are a direct result of Aristotelian thought.

D. Criticisms of Aristotle We have examined all the forms of justice described by Aristotle to obtain the idea that the just is the summation of all virtues,102 the intermediate term between opposing vices103 and the means for obtaining the virtue of the good. In spite of the fact that this appears ambiguous and circular (justice being both an ends and the means to an end) the distinctions between just acts, just persons, just states and justice explain how the just is the means to the end of justice. My critique of Aristotle’s idea of justice is not regarding his typology, which I find persuasive and clearly influences the law to this day. Rather my critique is that we select different measures for distributive justice because we have differing positions on those inequalities of ability that Aristotle regards as natural, i. e. Biological and genetic. Regardless whether one accepts or rejects Aristotle’s views on natural (biological and genetic) inequality, one sees in political science104 (law) a master science for the political allocation of goods and the determination of which other sciences to explore and to what degree.105 But when one accepts Aristotle’s genetic and biological view of natural inequality the master science also becomes the science of masters, for political science determines the relations of members of the master class (master race) to each other,106 as well as the relations between the master class (master race) and the slave class (the sub-human Untermenschen). Although Aristotle wants to distinguish and refine the different forms of mastery,107 this does not 99

Aristotle, Nicomachean Ethics, 1137 b 10–14. “A corrective of the law”. Aristotle, Nicomachean Ethics, 1137 b 26. 101 Aristotle, Nicomachean Ethics, 1137 b 10–15. 102 “Justice is the sum of all virtues.” Aristotle, Nicomachean Ethics, 1129b 29. 103 Aristotle, Nicomachean Ethics, 1106b 28, 1107a 2. 104 Aristotle, Politics, 1252 a 13–16. (Royal v. Political power). 105 Aristotle, Nicomachean Ethics, 1094 a 25–1094 b 2. 106 Aristotle, Politics, 1277b 7–9. 107 Aristotle, Politics, 1252 a 6–10. 100

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change the essence of the relation of superior (master) and subordinate (woman/slave). Women, children and slaves are seen as being naturally biologically or genetically unequal to (white) males. Women, children and slaves, according to Aristotle lack the deliberative capacity to command, which is the excellence of freemen. This hierarchical and patriarchal vision is dehumanising and limits the ability of the Polis and its members to grow and attain their full capacities. Thus this idea must be extirpated in order for Aristotle’s ends to be obtained. Aristotle’s thought is 90% correct but fatally flawed by essentially racist and misogynist presumptions. There are other criticisms of Aristotle. Aristotle does not seem to address, at least in his extant works, the pre-Socratic debate as to whether the fundamental nature of the universe is conflicted (which was Heraclitus’s line) or whether apparent conflicts are part of a greater harmony (which was Pythagoras’s line). The idea of adversarial conflict leading to truth, one key point of common law reasoning, can be traced in theory to Heraclitus.108 Aristotle seems silent on this point. With greatest reluctance I take Heraclitus’s view. I simply see conflict as pervasive in nature whether between predator and prey or between competing ideas, persons or nations, though I wish it were all really harmonious as Pythagoras believes. Indeed the capitalist economic system is built on the premise that competition – a healthy form of conflict – leads to the best products and the best prices.109 Harmony emerges out of conflicts. And this brings up the question of the marketplace. There is perhaps where I have the greatest problems with Aristotle. Aristotle wrote on the science of getting and keeping a fortune – chremastic. How did Aristotle recommend one acquire wealth? Though Aristotle was a slaver and thought slavery a natural inevitable and good thing it was not the foundation of his advice to those who would get wealth. Rather, Aristotle recommended monopolistic commodity speculation as the route to wealth. Aristotle thought the best businessman ought to determine what good would in the future be in short supply and to acquire that good for later resale. Aristotle saw monopoly, not economic competition, as a key to individual wealth. True, one can argue that monopoly is good because of economies of scale; monopolistic production may obtain cheaper good for consumers in the short run. However, in the long run when there is no threat of competition the monopolistic producer has every incentive to raise prices to obtain the highest profit possible. A deep discussion of the advantages and problems of monopoly seems absent in Aristotle’s economic thought. 108 109

Heraclitus, Fragments. Adam Smith, Wealth of Nations (1776).

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The much greater problem is simply that Aristotle was racist, sexist and homophobic. He was Helleno-centric and thought the Greek civilization the highest and best. Which may have been true but the reasons for this excellence were fairly certainly seen by Aristotle as genetic. Even if Aristotle did not think that racial superiority was genetic he was perfectly clear that genetic factors determine that some people are, by nature, slavish and others are, by nature, rulers. Some are born to serve and others to rule – according to Aristotle. Racism is just that thought of individual excellence due to birth cast onto groups. And it’s simply untrue. For starters, the ruling classes have been outbred by the ruled classes for centuries if not millennia. Furthermore close inbreeding among the ruling classes leads to genetic defects of the brain or blood such as haemophilia. Finally Aristotle is forced to recognize that some persons are not natural slaves but enslaved as a result of war.110 Again however Aristotle seems to have no problem with the institution of slavery, whether the slave is one by nature or by capture. Gender and sex relations in the thought of Aristotle are also clearly problematic. Aristotle definitely believes the nature role of woman is as subordinate to and subject of men. Unfortunately Aristotle does not seem to elucidate his hierarchy with perfect clarity. Such an elucidation shows it to be untenable or confused. This is likely Aristotle’s hierarchy within the Hellenes: – Adult male freemen, – adult female freemen, – adult male slaves, – adult female slaves, – children of Freemen, – children of Slaves. And this is the same sort of social hierarchisation that plagues social and political discourse in the United States today. For an example of the sort of confused thinking it leads to: Try to answer, within the hierarchical racist or capitalist view – who is higher in the social hierarchy a poor white woman or a wealthy black man? This sort of question is disgusting and a very real part of social discourse. When one understands that all people are of about equal talents and basically have the same hopes and fears, needs and desires – then the idea of hierarchy itself becomes disgusting.

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Aristotle, Politics, Book I Part 6 para. 1.

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E. Aristotle and Foucault Aristotle’s continuing relevance can be seen by looking at the influence he had on Michel Foucault. Though he of course influenced Cicero and Aquinas and so many others, Foucault is the most recent best example of Aristotle’s continuing relevance. Aristotle has had a pervasive influence on the structure of law, more so even than Cicero. It is for precisely this reason that we are compelled to the records of his lycaeum. Just as Foucault’s lectures at the College de France were gathered by students into notebooks so too were the lectures of the Lycaeum recorded, most probably by Aristotle’s son, Nicaeus, forming the corpus of his works that we enjoy to this day. The parallels between Aristotle and Foucault show that the former clearly influenced the latter. Stylistic similarities between Foucault and Aristotle are striking. So too are methodological similarities. Aristotle proposed the first real taxonomy of sciences, including the human sciences. Foucault, though limiting his work to the human sciences, was also working on the taxonomy of knowledge. Aristotle’s focused on man and nature and their relation to each other, whereas Foucault focused on the relation between the body and knowledge, the relation between power-knowledge111 and body-knowledge.112 Aristotle in contrast was looking at the world of nature to understand the nature of Man. Foucault’s delimitation of the field of inquiry is perfectly understandable – natural science, though working from the basic foundations of Aristotelian thought and the atomists has advanced incredibly in two thousand years and grown correspondingly complex. One time theoretical debates over whether matter and energy are convertible are now empirically solved. Human sciences too have advanced – economics has become empirical and scientific, for example. However, progress in human sciences has not been as great as progress in natural sciences. Thus, both Aristotle and Foucault worked on the unsolved problems of their times and did so by thinking of ideas and things in structures. Foucault considered himself to be a poststructuralist. However, he worked from the starting point of the structure of knowledge to critique the implications of structuring knowledge. Aristotle built hierarchies and taxonomies. Foucault studied structure and hierarchy 111

See Michel Foucault, Language, Counter-Memory, & Practice: Selected Essays & Interviews 199–217 (Donald F. Bouchard ed., 1977) (discussing the interrelation of knowledge and power, often in tandem with the work of Gilles Deleuze) [hereinafter Language, Counter-Memory, Practice]. 112 See generally Michel Foucault, Discipline & Punish: The Birth of the Prison (1979) [hereinafter Discipline & Punish].

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to deconstruct them. Aristotle and Foucault are each other’s mirror image, one looking outward the other inward, one looking to create power, the other to defuse it, yet their discursive writing styles and method are so similar – despite being separated by two thousand years. Post-structuralists like Foucault have influenced the law somewhat, notably through the critical legal studies movement, which seeks to deconstruct discourses about power to elucidate the power relations that shape those discourses. However, Aristotle had a much greater influence on the law: essentially the post-structuralists are trying to deconstruct the hierarchies of knowledge and power that Aristotle described and created – and that has and will prove to be no mean feat. By exposing Aristotle’s thoughts on justice and pointing out some of his influence on law I hope to help critical scholars work more effectively. We must study Aristotle because no one else has influenced the structure of law and of social science so much. Moreover, we must look at Aristotle because his racist, sexist and homophobic thought should be extirpated from the law in the interest of justice. I more or less take a post-structuralist approach to Aristotle: I seek to expose how his thought is structured by his views on gender, race and sex to create self-justifying hierarchies of power. At the same time, I wish to expose the concepts deployed through these vectors of power. This separation allows us to salvage Aristotle’s ideas on logic, justice and causality, which pervade the law. Thus rather than being trapped in disembodied Platonic dualism, sterile positivism or powerless post-modernism, critical scholars obtain conceptual instruments used to wield state power. Rather than rejecting Aristotle outright – which is likely impossible since he created logic – I try to resituate his discourse within the terms of equality. If Aristotle’s ideas can be cured of pervasive racism, sexism and homophobia then they can become useful.

F. Conclusion The Left finds itself struggling within systems of hierarchy against hierarchy. However, this is not because of the idea of value choices nor of hierarchy per se. Moral relativism is not the answer to struggling against existing hierarchies. The Left must reject moral relativism to advance the idea of equality. The Left finds itself struggling against hierarchy because hierarchy is essentially opposed to the idea of substantive equality. However, the choice of equality is the value sine qua non is itself a hierarchisation of one value over others. Thus it is social hierarchies and not hierarchy per se that the Left should oppose.

Chapter 3

Pre Modern Theory: Medieval Scholasticism and the Universals (1400–1600) A. Introduction In the prior chapters we set out our theoretical foundation: materialism, monism, Holism and cognitivism, and examined how Aristotle, from that base nevertheless reached some conclusions which history has shown to be wrong. In this chapter we move forward in time from Aristotle to the scholastics, to discuss their concept of universals (unum, bonum, verum: unity, the good, and truth). Late modernity wrongly rejected the idea of good and evil and even of objective knowledge, generally degenerating into a radical (inter)subjectivity most clearly seen in postmodernism. Such degeneration has deleterious effects for law and society. This chapter explores the historical sources of contemporary axiological and epistemological relativism and concludes by pointing out the possibilities and limits thereof for law. Moral values are not per se invalid. Moral values which are founded on a materialist base that reflects the reality of what helps people survive and prosper in the real world are a key element of justice. Late modern criticism of pre-modern epistemology appears at first glance to invalidate the idea of law. However, a deeper examination reveals that paradoxes, aporia and antinomies in law provoke constructive criticism. Deep critiques of the structures and presuppositions of rule of law serve only to strengthen the idea of the rule of law, not men, when they proceed from a moral perspective that sees law as a function of justice and justice as an expression of morality.

B. Problématique Must all law be moral? Are all moral imperatives also legal imperatives? Is moral (practical) inference possible? Does morality exist? What actions are moral or immoral? These questions of moral theory are closely related to law. While it was self evident for antiquity that morality exists, that moral inference was possible, and that all laws must be moral to be valid, it is equally obvious to late modernity that moral values are subjective, that

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moral inference is impossible, and that morality is personal and individual rather than, as in antiquity, collective and social. What caused this reversal of an entire complex of interrelated yet ambiguous ontological and epistemological assertions? How did that reversal play out in the law? This chapter argues that while morality was obvious to antiquity the moral values selected and defended by the West were not always correct and sometimes were radically wrong (racism, sexism, homophobia, though also obedience and even dualism generally). At the same time, the late modern response, to reject the idea of objective morality out of hand, is also erroneous. Moral values exist as objective facts in the world. However, the classical scholars of antiquity were wrong in their choice of values, emphasizing obedience, hierarchy, patriarchy, and martyrdom. Those values helped create social conditions resulting in mass human sacrifices known as world wars. Consequently, those values, as the highest or central goals of the West collapsed. They were replaced by moral relativism. Unlike relativist thinkers, I argue that moral values exist and are knowable. The West must defend values such as equality, solidarity, and tolerance and encourage curiosity and creativity. These values support the development of the individual in society and its well-being. The error of modernity was not in the decision to choose and uphold moral values but rather, which values it considered as moral. A correct analysis of the relationship between the transcendentals and their collapse is the necessary foundation for an accurate understanding of late modern legal thought and is presented herein.

C. History: From Realism to Nominalism by Way of the Universals I. The Scholastics 1. External Contradictions The transcendent values “unum, bonum, and verum” are the basis of the scholastic vision. For the scholastics, it was necessarily the case that either things no exist or do not (the law of identity), and that things are either good or evil exist (+/–), and that truth and falsity also exist (0/1), and are also decidable (p or not p) (the law of non-contradiction). This binary vision can be easily related to Manichaeism, which is one reason for being sceptical toward it. This is the dilemma of simplicity and accuracy: Complexity is a corollary to accuracy, but each higher degree of complexity weakens the ability to communicate an idea simply.

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Manicheanism is always implicit in the scholastic vision and is explicit in doctrine. The Church sees the universe as a spiritual battle between good and evil, with physical manifestations for the eternal soul, a battle between good and evil until the Last Judgement. The scholastics divided the world in a binary fashion between, on one hand: (1) God, the good, law, truth, unity, and by extension: rules, male, vertical, clean, hierarchy, order, faith. And, on the other hand: (2) The devil, evil, non-existent, lies, and by extension rebellion, the feminine, horizontal, dirty, lawlessness, disorder, doubt. This Manichean “vision” inevitably led to external contradictions. These opposite poles cannot be synthesised. Thus, neither peace nor compromise can be achieved in this world from the scholastic perspective. These external contradictions between the superstructure of thought (scholasticism) at a given stage of historical economic development (late feudalism) and its rising antithesis (early liberal capitalism) ultimately led to the collapse of scholastic thought. The ultimate source of this collapse however was a mistaken objective epistemology – the insistence on the “decidability” of propositions. A trivalent logic, which recognizes the unknown and even unknowable, can correct the scholastics epistemological error and help to identify their axiological errors (racism, sexism, homophobia, blind obedience) as well. 2. Internal Contradictions In the end, the scholastics split internally into realists (neo-Platonists) and nominalists. Transcendentals have more explanatory and predictive value when they are conceptualized as having a real existence determinative of reality (Platonic formalism). Platonists and neo-Platonists alike argue that ideas are priori to the material, as forms, and that the forms have an existence prior to their physical representations. For them, ideas determine reality. That view is inaccurate. The world is not a pure reflection of our thoughts or the thoughts of a Creator. Rather, our thoughts are determined by material experience, material perception, and material facts. Although scholastic thought was originally based on Platonic formalism, one of its nominalist members, Occam, rejected the belief that ideas have some real existence. This collapse of epistemological realism (idealism – eidos; the forms) led in turn to the fall of the transcendentals. Manichaeism implicit in the scholastic vision also implied its collapse. The internal contradiction within Catholic thought (between nominalists

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like Occam and neo-Platonists) amplified the external contradictions (Protestants against Catholics first of all, “Scientists” against the “Religious” thereafter). Thus, the superstructure of a feudal mode of production (mainly Catholicism and neo-Platonism) gave way to a new superstructure – liberal capitalism. Yet, though scholastic thinking is largely rejected the questions it ask haunt us and scholastic echoes still influence legal theory, largely due to enthymemes causing false dichotomies. Scholasticism rightly sought to understand basic questions like the relationships among the transcendentals and relationships among foundational assumptions, an answer to which I presented in the first chapter, has not really gone away. In this chapter I examine the scholastic views on the universals in order to show how those questions and the scholastics answers reverberate in contemporary law. The two major challenges to scholastic thought were voluntarism and relativism. These two challenges to the unity of thought played out in the fields of epistemology (verum – does truth exist) and axiology (bonum – does the good exist and what is good).

II. The Universals 1. Verum1 Presocratics struggled with the question whether there truth existed or whether all phenomena are relative, and illusory. However, with Plato, the idea of “truth” “absolute”, “Eternal”, “perfect”, “universal” appeared and came to dominate Western thinking. Platonism, with its absolutist perspective of truth, in turn influenced the Roman Empire, the Catholic Church, and the scholastics (feudal mode of production). The fundamental break between epistemological idealism and nominalism dates from the nineteenth century. As a result of the formation of new relations of production during capitalism the idea of a single truth, absolute2 and eternal3 was called into question. 1 “Wahrheit will keine Götter neben sich. – Der Glaube an die Wahrheit beginnt mit dem Zweifel an allen bis dahin geglaubten Wahrheiten” (Truth wants no Gods beside it. – The belief in truth begins in doubt toward all previously believed truths). Friedrich Nietzsche, Menschlich, Allzumenschlich, München: Verlag Nymphenburger (1994). Aphorisme 4, p. 377. 2 “ ‘Alle Wahrheit ist einfach’ – Ist das nicht zwiefach eine Lüge?” Friedrich Nietzsche, Götzen-Dämmerung München: Verlag Nymphenburger (1994). Aphorisme 4, p. 257. 3 “Was ist Wahrheit? – Wer wird sich den Schluß der Gläubigen nicht gefallen lassen, welchen sie gern machen: ‘die Wissenschaft kann nicht wahr sein, denn sie leugnet Gott. Folglich ist sie nicht aus Gott: folglich ist sie nicht wahr – denn Gott

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The idea of universal truth favours all centralising universalist forces including Marxism (which also seeks to “universalize” its materialist position). Marxism has demonstrated that the absolute perspective on truth is not necessarily an idealistic position – it can also be a materialist position. However, this perspective remains absolute, and therefore is the necessary foundation for any centralising universal structure. The “universal empire”, the “Universal Church” and the “universal proletariat” have in common an epistemology that claims to be objective. However, Marxism, which calls into question the “truths” of the West (the industrial mode of production), and developed his own truths, opened a “Pandora’s box”. If one can ask “is this truth?” what institution cannot be questioned? This enlargement of thinking enabled questioning the sources of truth: what is truth? The next step was to call into question the idea of truth itself: does truth even exist? The Platonic edifice of absolute objective truth was destroyed by Darwin, Freud, Nietzsche and Einstein. Relativist epistemology assumes the subjectivity of opinions, the relativity of knowledge and instrumentalises science – a perspective, which is more flexible and less hierarchical than the absolutist perspective. These facts have in turn led late Modernity to define truth in terms of its fertility and its descriptive effectiveness:4 you can measure the truth of an assertion based on its effectiveness. Otherwise, the proposition would not survive. This “epistemological Darwinism” is a result of relativism and uncertainty. a) Truth Scepticism: Nietzsche – The Will to Truth5 Sciences promises the discovery of truth. However, that implies a precedent presumption: that truth exists. ist die Wahrheit’.” Nicht der Schluß, sondern die Voraussetzung enthält den Fehler: wie, wenn Gott eben nicht die Wahrheit wäre, und eben dies bewiesen würde? Wenn er die Eitelkeit, das Machtgelüst, die Ungeduld, der Schrecken, der entzückte und entsetzte Wahn der Menschen wäre?” Friedrich Nietzsche, Morgenröte München: Verlag Nymphenburger (1994). Aphorisme 2, p. 11. 4 This is the pragmatic definition of truth. Alternatives to the pragmatic definition of truth are the correspondence theory of truth, coherence theory, consensus theory, pragmatist theory, redundancy or deflationist theory Jaap Hage, Studies in Legal Logic, Heidelberg: Springer (2005), p. 177. 5 “Die eigentlichen Philosophen aber sind Befehlende und Gesetzgeber: sie sagen ‘so soll es sein.’ Sie bestimmen erst das Wohin? und Wozu? des Menschen und verfügen dabei über die Vorarbeit aller philosophischen Arbeiter, aller Überwältiger der Vergangenheit – sie greifen mit schöpferischer Hand nach der Zukunft, und alles,

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For Nietzsche, the truth begins with scepticism,6 as a form of heresy before the established world. He sees the construction of scientific knowledge7 with, initially, beliefs, which then lead up to knowledge and, finally, are enumerated8 and formalized as “the truth”.9 His approach, intended to demonstrate the errors and enthymematic presuppositions linked to the former “truth”, is a path towards a relativized knowledge.10 The scepticism of Nietzsche is the result not only of a contempt toward the established order, perceived by Nietzsche as blind,11 but also a criticism of the method, which instrumentalises science in order to create, first knowledge, and then to use that knowledge as a tool to master the world.12 This instrumentalisation can however also work to deny the objective nature of science. was ist und war, wird ihnen dabei zum Mittel, zum Werkzeug, zum Hammer. Ihr ‘Erkennen’ ist Schaffen, ihr Schaffen ist eine Gesetzgebung, ihr Wille zur Wahrheit ist – Wille zur Macht. – Gibt es heute solche Philosophen? Muß es nicht solche Philosophen geben?” Friedrich Nietzsche, Jenseits von Gut und Böse, München: Verlag Nymphenburger (1994). Aphorisme 211, p. 663. 6 Friedrich Nietzsche, Die fröhliche Wissenschaft, München: Verlag Nymphenburger (1994). Aphorisme 300, p. 523. 7 “Die wahre Welt haben wir abgeschaft: welche Welt blieb übrig? Die scheinbare vielleicht? . . . Aber Nein, mit der wahren Welt haben wir auch die scheinbare abgeschaft.” Nietzsche, Friedrich Götzen-Dämmerung, München: Verlag Nymphenburger (1994), p. 276. 8 “Wie die ‘wahre Welt’ endlich zur Fabel wurde . . . 1. Die wahre Welt, erreichbar für den Weisen, den Frommen, den Tugendhaften, – er lebt in ihr, er ist die älteste Form der Idee, relativ klug, simpel, überzeugend, Umschreibung des Satzes ich, Plato, bin die Wahrheit’.” Nietzsche, Friedrich Götzen-Dämmerung. München: Verlag Nymphenburger (1994), p. 275. 9 “Wie könnte etwas aus seinem Gegensatz entstehn? Zum Beispiel die Wahrheit aus dem Irrtume? Oder der Wille zur Wahrheit aus dem Willen zur Täuschung . . . Diese Art zu urteilen macht das typische Vorurteil aus, an dem sich die Metaphysiker aller Zeiten wieder erkennen lassen, diese Art von Wertschätzungen steht im Hintergrunde aller ihrer logischen Prozeduren; aus diesem ihrem ‘Glauben’ heraus bemühn sie sich um ihr ‘Wissen’, um etwas, das feierlich am Ende als ‘die Wahrheit’ getauft wird. Der Grundglaube der Metaphysiker ist der Glaube an die Gegensätze der Werte. . . . Man darf nämlich zweifeln erstens, ob es Gegensätze gibt, und zweitens, ob jene volkstümlichen Wertschätzungen und Wert-Gegensätze, auf welche die Metaphysiker ihr Siegel gedrückt haben, nicht vielleicht nur Vordergrunds-Schätzungen sind, nur vorläufige Perspektiven, vielleicht noch dazu aus einem Winkel heraus, vielleicht von unten hinauf, Froschperspektiven gleichsam, um einen Ausdruck zu borgen, der den Malern geläufig ist?” Friedrich Nietzsche, Jenseits von Gut und Böse, München: Verlag Nymphenburger (1994). Aphorisme 2, pp. 536–537. 10 Friedrich Nietzsche, Die fröhliche Wissenschaft, München: Verlag Nymphenburger (1994). Aphorisme 111, pp. 455–456. 11 Friedrich Nietzsche, Die fröhliche Wissenschaft, München: Verlag Nymphenburger (1994). Aphorisme 373, p. 613. 12 Nietzsche, Friedrich Jenseits von Gut und Böse, München: Verlag Nymphenburger (1994), p. 549.

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Finally, Nietzsche questions whether science itself is rationalisation. So does Freud. Nietzsche, like Popper, concludes absolute truth cannot exist, just proposals which are not yet falsified. Thus, he concludes that the more a general description is, the less it is true. His definition of truth is pragmatic rather than real: it is practical as defined around fecundity – explanatory and heuristic power. In the end, Nietzsche’s relativism may also lead one to wonder if objective reality exists.13 b) Moral Relativism: Freud and Psychological Interpretation Freud’s critique of reason can be summed up with the idea that “reason” is nothing more than a rationalization: a tool for defending itself, or a weapon in social struggle. People, out of habit, are willing to see, in general, a world consistent with their beliefs, prejudices, resulting in a rationalisation of impressions and actions. To Freud, Human action is a product of unconscious animal impulses at least as much as it is the product of an informed, objective will. For Freud, “reason” is tantamount to a “rationalization”. c) The American Realists Taking up Freud, Americans sceptics (including Llewelyn) called into question the idea of “reason” and wonder if it’s not “rationalization”. Whether in addition to or in place of logic they saw willpower and psychology as being most important factors in judges decisions. Americans Realists are divided into two categories: the fact sceptics and rules sceptics. aa) Fact Sceptics Fact sceptics will argue that legal facts are merely constructions. According to them, facts are not determinable – and it is therefore impossible to predict legal decisions14 either due to the subjectivity and weaknesses of observers (relative fact sceptics) or due to the subjectivity character of all perception (absolute fact sceptics). 13 “Gesetz, daß nichts anders als real ‘gegeben’ ist als unsere Welt der Begierden und Leidenschaften, daß wir zu keiner andern ‘Realität’ hinab oder hinauf können als gerader zur Realität unsrer Triebe – denn Denken ist nur ein Verhalten dieser Triebe zueinander –: ist es nicht erlaubt, den Versuch zu machen und die Frage zu fragen, ob dies ‘Gegeben’ nicht ausreicht, um aus sinesgleichen auch die sogenannte mechanistische (oder ‘materielle’) Welt zu verstehn?” Friedrich Nietzsche, Jenseits von Gut und Böse, München: Verlag Nymphenburger (1994). Aphorisme 36, p. 575.

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bb) Rules Sceptics Rules sceptics15 argue that legal rules aid in unfair manipulation of outcomes to serve the class interests of judges. Either the rules lack an inner logic (objective rule scepticism) or human nature limits judges’ objectivity (subjective rule scepticism). In this perspective, judges make their decisions based on their personal preferences. Thus, legal “reasoning” – mainly judges’ decisions – becomes rationalisation.16 The result is that the logic has no “real” application – judges can and do manipulate the rules and that that undermines the application of formal logic to the decisions.17 Though, the point of logic is not to describe psychological processes. Rather, logic seeks to determine, which arguments are objectively correct and, which ones are not.18 14 J. Frank “Law and the Modern Mind” in Lloyd and Freeman (eds), Lloyd’s Introduction to Jurisprudence (Vº Edition), London: Steven and Sons (1985), p. 733. 15 J. Frank “Law and the Modern Mind” in Lloyd and Freeman (eds), Lloyd’s Introduction to Jurisprudence (Vº Edition), London: Steven and Sons (1985), p. 732. 16 K. Llewellyn, “Some Realism about Realism”, 44 Harv. Law Rev. 1222 (1931), in Lloyd and Freeman (eds), LLoyd’s Introduction to Jurisprudence (Vº Edition), London: Steven and Sons (1985), pp. 742–743. 17 “The weakness of the use of formal logic is now exposed. The court can decide one way or the other and in either case can make its reasoning appear equally flawless. Formal logic is what its name indicates; it deals with form and not with substance. The syllogism will not supply either the major premise or the minor premise. The ‘joker’ is to be found in the selection of these premises. In the great run of cases, which come before the courts, the selection of principles, and the determination of whether the facts are to be stated in terms of one or another minor premise, are the chief task to be performed. These are difficult tasks, full of hazards and uncertainties, but the hazards and uncertainties are ordinarily concealed by the glib use of formal logic.” Frank, Law and the Modern Mind, Tudor Publishing Co., New York (1935), pp. 65, 66. in Hall, Jerome Readings in Jurisprudence, Indianapolis: Bobbs-Merrill (1938), p. 386. 18 “The criticism of formal logic is an attack upon a dummy overstuffed for the occasion. Formal logic is identified with the syllogism and is shown to be an oversimplified and thoroughly false description of he way human beings think. . . . the subject-matter of formal logic does not embrace the psychological phenomena of human thinking . . . reasoning (from premises to conclusion) [is distinct from] rationalization (from conclusion to premises) . . . formal logic is devoted entirely to the analysis of propositions and their relationships, among, which are the relationships of implication and proof, and has never been offered by logicians, et least, as a description of the way human beings think.” Adler, Mortimer Law and the Modern Mind: A Symposium – Legal Certainty Columbia L. Rev., 1931 v. 31, p. 91 in Hall, Jerome Readings in Jurisprudence, Indianapolis: Bobbs-Merrill (1938), pp. 387– 388.

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The scepticism of realists opposes the theory of objective, absolute truth as seen in, for example, Plato and Aristotle. Realists were decisively influenced by Freud’s ideas on rationalization and subjectivity, and they use these considerations to analyse the decisions of judges. Thus, realists “sabotage” to some extent the idea of logic applied to legal issues, especially where this logic leads to formalist answers.19 One of the consequences of scepticism is the definition of truth a contrario: truth defined as a refutation of error, as a to this point unfalsified hypothesis. The result of a relativised truth is provisional knowledge, determined by its ability to improve understanding. At the extreme, a volontarist theory of knowledge can be perceived as the imposition of a model of information in spite of the relativization of truth: (1) Positions are necessarily subjective. (2) Ideas have only a relative value, vis-à-vis themselves and vis-à-vis the facts. (3) These facts, which are only subjective opinions, nevertheless have an organization. (4) Knowledge is a set of information organised in or by a model. Information can be defined here as the “facts” (defined by their certainty and their ability of determination), opinions (which are defined by their subjectivity, their relativity), and terms (which are defined by consent). The relevance of these sceptical positions is that they demonstrate the existence of uncertainty. Truth is only ever partially contingently known because sense perception and comparison is imperfect. 2. Bonum Scepticism toward Moral Principles – Relativism Epistemological relativism implies axiological relativism.20 To axiological relativists, good and evil are not absolutes; good and evil are best de19 Hart, H. Essays on Jurisprudence, Oxford: Oxford University Press (1983), pp. 64–67. 20 “Vorurteil der Gelehrten. Es ist ein richtiges Urteil der Gelehrten, daß die Menschen aller Zeiten zu wissen glaubten, was gut und böse, lobens und tadelnswert sei. Aber es ist ein Vorurteil der Gelehrten, daß wir es jetzt besser wüßten als irgendeine Zeit.” Friedrich Nietzsche, Morgenröte, München, Verlag Nymphenburger (1994). Aphorisme 2, p. 11.

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fined and relatively each other: “What is good for me is not necessarily good for you.”21 Axiological relativists would argue that because something can be at once good for one person but bad for another one that it is impossible to speak of a perspective, which is “good” or “evil”. Further, psychology teaches us that all people are simply trying to fullfill their basic needs – and will do whatever they must to attain them. So people feel their actions, even their bad actions, were justified – that they could not have done otherwise. “Evil” people do not think themselves evil, they think themselves justified. Of course, acts can be good or bad but people themselves are neither good nor bad, they are merely self interested. Although a holistic perspective can declare the existence of a universal good, scepticism denies the possibility of proving it. Nominalism allows the evocation of the facts and things. However, to talk of “good” and “evil” as objective forces independent of people is a step towards the metaphysical22 and, for a nominalist, an anthropomorphisation of forces that have no real existence. Thus relativised – through Freud and Nietzsche23 – good and evil no longer exist. The historic problem that arises here is that this perspective is debatable in the wake of two world wars. The first war has clearly shown that the authorities (leaders) – such as the State, the Church – can be radically wrong. Obedience to the mass murder war machine proved itself to be stupid and wrong. Relativism, enabled by the failure of obedience as a virtue in World War I was then chastised by World War II, which showed that indeed, evil actions do exist. Understanding that good and evil are problematic yet necessary concepts requires intelligence and lucidity. Intelligence is not a product of obedience but rather of curiosity, the great force of creation and innovation. No order may suppress all creativity and survive. Without creativity there is no inno21 “Was ist gut? – Alles, was das Gefühl der Macht, den Willen zur Macht, die Macht selbst im Menschen erhöht. Was ist schlecht? – Alles, was aus der Schwäche stammt.” Friedrich Nietzsche, Der Antichrist, München: Verlag Nymphenburger (1994). Aphorisme 2, p. 366. 22 “Die andere Idiosynkrasie der Philosophen ist nicht weniger gefährlich; sie besteht darin, das Letzte und das Erste zu verwechseln. Sie setzen das, was am Ende kommt – leider, denn es sollte gar nicht kommen. – Die ‘höchsten Begriffe’, das heißt die allgemeinsten, die leersten Begriffe, den letzten Rauch der verdunstenden Realität an den Anfang als Anfang . . . Damit haben sie ihren stupenden Begriff ‘Gott’ . . . Das Letzte, Dünnste, Leerste wird als Erstes gesetzt, als Ursache an sich, als ein Realissimum . . .” Friedrich Nietzsche, Götzen-Dämmerung, München: Verlag Nymphenburger (1994). Aphorisme 4, p. 272. 23 “Es gibt Herren-Moral und Sklaven-Moral . . . in allen höheren und gemischteren Kulturen.” Friedrich Nietzsche, Jenseits von Gut und Böse, München: Verlag Nymphenburger (1994). Aphorisme 260, p. 728.

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vation, and with no innovation stagnation sets in to be followed by economic ruin. Thus, one can say metaphorically that each legal system lies between the Scylla of stagnation, and the Charybdis of revolution. 3. Unum24 The logical conclusion of the questioning of truth and the relativity of moral values is a scepticism25 that leads to the atheistic views.26 The West decided that God (at least the Christian god)27 is dead.28

D. Logic: Indeterminacy and Decidability The real theoretical error of classical antiquity and modernity alike is an inability to recognize that the Aristotelian binary categorization is not a va24

“Von Gott. – Nun aber starb dieser Gott. Ihr höheren Menschen, dieser Gott war eure größte Gefahr. . . . Gott starb: nun wollen wir, daß der Übermensch lebe.” Friedrich Nietzsche, Also Sprach Zarathustra, München, Verlag Nymphenburger (1994). “Vom Höheren Menschen”, Aphorisme 2, p. 318. 25 Friedrich Nietzsche, Der Antichrist, München, Verlag Nymphenburger (1994). Aphorisme 12, p. 375. 26 “Es ist notwendig zu sagen, wen wir als unsern Gegensatz fühlen – die Theologen und alles, was Theologen-Blut im Leibe hat – unsre ganze Philosophie.” Friedrich Nietzsche, Der Antichrist, München, Verlag Nymphenburger (1994). Aphorisme 8, pp. 370–371. “Diesem Theologen-Instinkte mache ich den Krieg: ich fand seine Spur überall. Wer Theologen-Blut im Leibe hat, steht von vornherein zu allen Dingen schief und unehrlich.” Friedrich Nietzsche, Der Antichrist, München, Verlag Nymphenburger (1994). Aphorisme 9, pp. 371–372. 27 “Der christliche Gottesbegriff – Gott als Krankengott, Gott als Spinne, Gott als Geist – ist einer der korruptesten Gottesbegriffe, die auf Erden erreicht worden sind.” Friedrich Nietzsche, Der Antichrist, München, Verlag Nymphenburger (1994). Aphorisme 18, p. 382. “Man soll das Christentum nicht schmücken und herausputzen; es hat einen Todkrieg gegen diesen höheren Typus Mensch gemacht, es hat alle Grundinstinkte dieses Typus in Bann getan, es hat aus diesen Instinkten das Böse, den Bösen herausdestilliert: – der starke Mensch als der typisch Verwerfliche, der “verworfene Mensch”. Das Christentum hat die Partei alles Schwachen, Niedrigen, Mißratenen genommen, es hat ein Ideal aus dem Widerspruch gegen die Erhaltungs-Instinkte des starken Lebens gemacht es hat die Vernunft selbst der geistig stärksten Naturen verdorben, indem es die obersten Werte der Geistigkeit als sündhaft, als irreführend als Versuchungen empfinden lehrte.” Friedrich Nietzsche, Der Antichrist, München, Verlag Nymphenburger (1994). Aphorisme 5, pp. 367–368. 28 “Gott tot ist.” Friedrich Nietzsche, Also Sprach Zarathustra, München, Verlag Nymphenburger (1994). Sec 2, p. 8. “Einst war der Frevel an Gott der Größte Frevel, aber Gott starb, und damit starben auch diese Frevelhaften.” Friedrich Nietzsche, Also Sprach Zarathustra, München, Verlag Nymphenburger (1994). Aphorisme sec. 2, p. 3.

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lid description of the universe. Thus, even if the battle is apparently relativity (and voluntarism) against truth and goodness, the outcome of this conflict lies in the field of paradox. There, we will see that the existence of the paradox of the liar and immovable object demonstrates the limits of a strictly binary conception of the world. In summary, Aristotle wanted a decidable world of certainty. Gödel and Heisenberg showed the impossibility of such a world. The resolution is a three or four valued logic to take into account the unknown and unknowable allows us to demarcate those areas where certain knowledge is possible from those areas where certain knowledge is not possible. Recall that the principle of decidability asserts that P p: p/~ p. Applied to the “universals” things are true or false: they exist, or they do not exist. They are on the side of good or evil. With the principle of non-contradiction (P p: ~ (p. ~ p)),29 it was the basis of scholastic methodology. The problem with this binary vision (apart from the implied Manichaeism), is that it is inexact. Consider the paradox of the liar who says “this sentence is false”. If things were as binary as scholastics think, this paradox simply could not exist.30 Even if, from a temporal perspective, the paradox of the liar were allowed to oscillate its value from “true” to “false”, from a timeless perspective it is neither true nor false. This third category, the undecidable, is the only solution to some paradoxes. The necessary existence of this third category (uncertainty) is demonstrated by Gödel.

I. Gödel “There is no obvious connection between the lack of a demonstration for a sentence and the existence of a demonstration for its negation. The fact that the reasoning comes from outside the sentence and, moreover, that there is no systematic method to find such reasoning prompts us to be cautious. The famous incompleteness theorem, shown in 1931 by Kurt Gödel (1906–1978), shows that caution is justified. There is not always an argument to establish the truth of a sentence or its negation.”31

Gödel showed (simplified), that in any formal system there are will always be true yet indemonstrable theorems and false but indemonstrable theorems (undecidabilility). Uncertainty is thus inevitable. A three or four valued logic is necessary to express and account for the unknown and the unknowable.

29

Ziembinski, Practical Logic. Boston: Reidel Publishing (1976), at 95. Suber, Peter The Paradox of Self-Amendment in Constitutional Law 7 Stanford Literature Review, 53, 55 (Spring/Fall 1990). 31 Dowek, Giles La Logique, Paris: Flammarion (1995), pp. 53–54. 30

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II. Quine 1. Linguistic Indeterminacy The vision of scholastic decidability does not take into account the problem of linguistic indeterminacy. Although nominalists had already abandoned the eidos of Plato, it remained for Saussure to declare signs arbitrary and for Quine to demonstrate the indeterminate character of language.32 Quine proposes that language is inherently ambiguous. This linguistic argument33 seems to be present when we consider the problem of paradoxes. However, it seems to be resolved by Quine’s distinction between “veridical” and “falsidical” paradoxes. Veridical paradoxes are shocking yet true, whereas falsidical paradoxes are false and misleading; the argument that language is inherently ambiguous may also be met by pointing out that values may be true, false, undetermined, or indeterminable. There is however some ambiguity inherent in natural languages: meaning can be given only in context; the same signifiers can have different meanings depending on the audience, the author, time and place. In addition to the ambiguity of context, there is circularity in language: all terms can be mutually defined. This circularity of language is also found at the level of nouns (subject) and verbs (predicate). Each noun is defined by a verb and every verb by a corresponding noun.34 To avoid these ambiguities, we construct artificial languages (metalanguage) to avoid these syntactic problems. Moreover, while terms can be mutually defined some terms are also able to be defined as references from material reality. By the explicit declaration of referents we can render potentially ambiguous statements unequivocal. Quine is not alone in asserting the existence of ambiguity inherent in language. Hart says that language becomes indeterminate due to ambiguous basic terms. According to Hart, although terms have determined kernels, there are also swathes of ambiguity, open to questioning.35 The uncertainty about language, the existence of paradoxes, and Gödel’s theorem show the error of a strictly binary vision of logic – not of logic per se, but of one particular form of logic – and so deserve to be examined in depth. 32 Gunther Teubner, “ ‘And God Laughed . . .’ Indeterminacy, Self-Reference, and Paradox in Law” 7 Stanford Literature Review 23 (Spring/Fall 1990). 33 Quine, W.V. Word and Object. Boston, MIT Press (1960), p. 73. 34 Quine, W.V. Word and Object. Boston, MIT Press (1960), p. 27. 35 H.L.A. Hart, Essays on Jurisprudence, Oxford: Oxford University Press (1983), pp. 63–64.

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2. Paradox Quine examines the idea of paradox as an analytical tool. The usefulness of the paradox is that it shows the limits of thought. For example, the paradox of the liar demonstrates that there are proposals that are neither verified nor refutable: that statements are not “either true or false, only”. Paradoxes like the liar paradox challenge the assumption that all propositions are decidable. a) Definition of Paradox What is a paradox? According to Quine: “A paradox is any conclusion that at the beginning seems to be absurd, but has an argument to support it.”36 Thus, one can detect a potential disaster lurking in each paradox. Is paradoxal reasoning ever valid? Quine distinguishes between veridical paradoxes, which are shocking, but true, and falsidical paradoxes, which are false and misleading. Antinomies reveal aporia37 in reasoning, indicating that a method must be reviewed and reformed in order to be valid.38 Quine also distinguishes autological (self referential) statements from heterological (not self-referential) statements. For example: “This autological sentence is composed of eight words.” (autological, and true). “The previous sentence is circular.” – is heterological because it refers to a previous sentence. All autological sentences are recursive. A heterological sentence in general is not recursive – though, two heterological sentences, referring respectively to each other, can be autological. The autological/heterological distinction is useful to distinguish and determine the nature of paradoxes such as Epimenides’s liar. Other authors have also adopted the idea of paradox as an instrument of rebuttal and refinement of thought.39 There are at least three definitions of the term “paradox”: 36

W.V. Quine, The Ways of Paradox and Other Essays. (reverse translated from French). 37 An aporia is an impasse in our reasoning brought on, usually, by an enthymematic error. An enthymeme is an incomplete syllogism where one term of the syllogism is only implicit. Unexpressed enthymemes are often the source of errors in reasoning. 38 Id. 39 “Paradoxe: Enoncé ou raisonnement qui heurte le sens commun ou le bon sens logique ordinaire mais dont l’absurdité ne paraît pas, en tout cas de prime abord,

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“1. An opinion, argument or proposal, which goes against the commonly accepted opinion 2. Something, extraordinary that strikes reason, common sense, or logic as incomprehensible 3. In logic, a proposal that can be demonstrated as both true and false.”40

Quine’s typology is interesting if only because it is heuristically fertile,41 though I believe it is also accurate. Quine argues that: “the traditional formalist approach reduces it [the paradox] to contradiction, however some in contrast have been able to define it as ‘truth, which holds itself up by its own head to attract attention’.”42 Thus, “[s]trictly speaking, the logical paradox designates an assertion about which one cannot demonstrate whether it is true or false.”43 Quine’s method allows us to use the paradox to support, refute, or develop a thought. b) Self Reference A common point among several paradoxes is self reference.44 Self reference can leads to circularity, preventing the evolution of reasoning.45 Sevréductible. Lorsqu’il surgit dans un système ou un langage logique, le paradoxe qui s’apparente à un non-sens, une contradiction ou un indécidable, constitue un danger, car il peut être le symptôme du caractère irrationnel, jusque là caché, du système ou du langage ‘logique’ désormais suspects. Le paradoxe doit donc être dissous par l’analyse.” Hottois, Gilbert Penser la Logique. Bruxelles: De Boeck Université (1989), p. 21. 40 Etienne Klein, Conversations avec le Sphinx Paris: Editions Albin Michel (1991), p. 32. 41 “The components of the legal system . . . are cyclically linked to each other in multifarious ways. Self-reference, paradox, and indeterminacy are real problems of social systems, not errors in the mental reconstruction of this social reality.” Gunther Teubner, ‘And God Laughed . . .’: Indeterminacy, Self-Reference, and Paradox in Law Stanford Literature Review, Spring/Fall 1990, p. 23. 42 Etienne Klein Conversations avec le Sphinx. Paris: Editions Albin Michel 31 (1991). (Quine quote reverse translated from French). 43 Id. at 33 (Quine quote reverse translated from French). 44 “Une autre fac ¸ on d’envisager le problème met en évidence un phénomène d’auto-référence ou d’auto-prédiction: tout se passe comme si on se sentait obligé d’inclure dans un ensemble Q précisément le nom qui permet de désigner cet ensemble, ou le critère, ou le terme, qui identifie cet ensemble. Un nom, qui désigne des objets, est spontanément utilisé pour se désigner lui-même comme l’un des objets. Cette propension autoréférentielle s’enracinerait dans l’analogie qui existe entre les objets de l’ensemble à désigner et la désignation de cet ensemble: ainsi, le catologue des catalogues est une sorte de catalogue; ‘imprédicable’ est un mot et comme tel classable, . . . Mais on perd ainsi ce qui distingue fondamentalement l’ensemble Q (ou les objets qui forment cet ensemble) et le terme qui permet d’identifier cet ensemble, à savoir la différence de niveau logico-linguistique. Ce sont des

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eral paradoxes have the same structure, and can be solved in the same manner: by a refusal of infinite regress, and/or cognition of a circular error.46 But not all paradoxes are the result of recursion.47 Furthermore, some paradoxes have heuristic utility. Paradoxes can bring a new dynamic in the debate. Paradox presents a heuristic interest from the fact that the existence of circularity demonstrates error, but does not solve the error. To go beyond the idea of information and become knowledge, information must be organized. Often, information is organized or can be expressed as a recursive function. Knowledge is marked by the organization of a structure of facts around an organizing concept. Recursion is self-reference; the repetition of a theme. Shape, colours, geometric objects, the number, and the alphabet are examples of organized information (like a lexical field). Recursion, inevitable in organization of knowledge, is also the foundation of some paradoxes. Thus, the existence of paradox seems inevitable. Discovery of a paradox can indicate a logical error and/or may be the consequence of complexity. An increase of the complexity of thinking implies an increase in its recursion, which increases the likelihood of paradoxes.48 niveaux que Russell appelle les types.” Hottois, Gilbert Penser la Logique. Bruxelles: De Boeck Université (1989), pp. 186–187. 45 “Les paradoxes semblent avoir en commun qu’ils considèrent des ensembles qui paraissent ne pas pouvoir être complets et se clore sans inclure un élément qui les présuppose. Ainsi, l’ensmble des catalogues est un catalogue qu’on est spontanément tenté d’inclure dans cet ensemble, alors que celui- ci est préalable à l’établissement du catalogue des catalogues. . . . Il semble donc possible de diagnostiquer un cercle vicieux: on veut inclure P dans l’ensemble A alors que si l’on dispose déjà de l’ensemble A comme achevé et complet: P présuppose A comme complet et A ne semble pouvoir se compléter qu’en incluant P.” Hottois, Gilbert Penser la Logique. Bruxelles: De Boeck Université (1989), p. 186. 46 “Les paradoxes considérés [type du menteur] sont dus à des phénomènes d’autoréférence ou de réflexivité abusive Techniquement, la solution de Russell permet d’élucider bien des confusions et de se tirer des difficulté associérs. Mais philosophiquement, la réponse par la distinction hiérarchisée des types de langage est insatisfaisante. En effet, la hiérarchie des types est potentiellement illimitée.” [Problème de la regresse à l’infini]. Id. at 21. 47 “La plupart des paradoxes ne sont rien de plus que des exemplifications différents d’une même structure paradoxale. Certains cependant relèvent de structures non identiques: ainsi les paradoxes relatifs au mouvement inventés par Zénon d’Elée ne sont-ils pas de la même espèce que les paradoxes mégariques, type ‘le menteur’.” Id. at 181. 48 “This new way of handling self-reference is more than ambitious. It claims to treat circularity, hitherto regarded in principle as a prohibited mode of thought, as a fertile and heuristically valuable model of social reality” Teubner And God Laughed 7 Stanford Literature Review 23 (Spring-Fall 1990).

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c) Paradoxes of the State In this section we will consider some paradoxes that demonstrate the problem of a strictly binary vision of the truth. The other benefit of these paradoxes is that they pose problems on the idea of “State” and “authority”. This shows the usefulness of paradox as a tool to reveal hidden presumptions. The falsidical paradox is useful to demonstrate, by absurdum, wrong reasoning. For example, consider the following problems: – The state creates the law, – the law creates the State. So . . . which is the creator and which is the created? This is circularity, but the paradox can be resolved as soon as we see the state as a fiction – which is the position of Kelsen and Marx. For Kelsen the state is a legal fiction – the state is the law. For Marx the state is an antinomian fiction, an illusion resulting from class struggle. d) The Paradox of Omnipotence and Self-limitation A similar paradox arises when we consider the “omnipotent” character of the sovereign power of the State (a fictitious entity). If the state has absolute power (“sovereignty”), how can it be limited by “the rule of law”?49 Sovereign power as final and unable to be limited contradicts the idea of the rule of law by a limited government of enumerated powers. e) Paradox of Universal Truth Consider this variant of the liar’s paradox: “All universal propositions are necessarily false”.

That statement is obviously paradoxal. However, we can reform the statement to eliminate paradox this way: “It is impossible for a proposition to be both universal and true.”

That seems to eliminate the paradox. How did that happen? Here, the puzzle seems to imply there is some equivocation in the second statement namely the idea of impossibility (non-existence) being, as a negative, not a universal statement. However, it is. 49 “[H]ow can a power supposed to be omnipotent irrevocably limit itself?” Suber, Pater The Paradox of Self-Amendment in Constitutional Law 7 Stanford Literature Review 55 (Spring-Fall 1990).

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The heuristic interest of paradox is that it demonstrates the need to refine and clarify thinking.

III. Raz and the Paradox of Authority Raz considers in depth the paradoxical nature of authority. He expresses the problem of legitimacy as a syllogism:50 (1) Being subject to authority is not compatible with reason, because reason requires that we know the cause. (2) Authority, by its nature, requires obedience even when one thinks that what is required is contrary to reason. (3) So, to submit to authority is irrational. Here there may be an equivocation between reason (phronesis – reason) and theoretical logic (rationality) though the syllogism would hold if we substitute each instance of “reason” with “rationality” or “irrational” with “unreasonable”. Raz also argues that: (1) The principle of autonomy demands that we act according to our own judgement in all legal matters. (2) Due to the fact that sometimes authority requires acts against our own judgement, it requires we abandon our moral autonomy. (3) So, authority is immoral. Because all practical issues may also have moral considerations, any authority in practice denies moral autonomy and is therefore immoral. Raz exposes these arguments to refute them however they are I think persuasive. The anarchist position here seems rational in theory, though in practice it may not be well reasoned due to the authoritarian power of the state. In practice, we are forced to submit to the authority of the state be50 “The paradoxes of authority can assume different forms, but all of them concern the alleged incompatibility of authority with reason, or autonomy. To be subjected to authority, it is argued, is incompatible with reason, for reason requires that one should always act on the balance of reasons for, which one is aware. It is the nature of authority that it requires submission even when one thinks that what is required is against reason. Therefore, submission to authority is irrational. Similarly the principle of autonomy entails action on ones own judgment on all moral questions. Since authority sometimes requires action against one’s own judgment, it requires abandoning ones moral autonomy. Since all practical questions may involve moral considerations, all practical authority denies moral autonomy and is consequently immoral.” Joseph Raz, The Authority of Law. Oxford: Clarendon (1979), p. 3.

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cause of its superior force. The denial of individual autonomy is why authority is immoral. Whether Raz’s arguments are paradoxes or aporias, they demonstrate the fundamentally violent, fictitious, and immoral character of the State. The existence of the State cannot be justified in terms of alternatives it claims to eliminate (war, poverty), because it does not in fact eliminate those evils. Like a juggernaut, it would destroy everything not intelligent enough to get out of its path. Raz calls his rational argument for anarchism a paradox – probably meaning, not a logical antinomy but rather a view, which while true, is contrary to the received opinion (para – doxa).

IV. Kelsen and the Paradox of the Prescription of Prescription A final example of paradox as an analytical tool of thought: According to Kelsen, the science of law must merely describe the law. This sentence can be interpreted as being: (1) An obligation to not prescribe as to other statements excepting this one. (2) A prohibition of prohibition, generally (which is paradoxal). (3) A prohibition to describe using value judgements (no use of good or bad). (4) A permission to describe (if permission is the opposite of obligation and description is the opposite of prescription). This paradox reveals problems in Kelsen’s theory. The first statement is likely what he means. The paradoxal character of a prohibition of prohibition is solved by shifting our perspective analysis. When we believe the author of the prohibition is not the same person as the one who is commanded the paradox disappears. By way of contrast, when the state (paradoxically . . .) submits itself to its own laws, it cannot exempt itself from these requirements. Thus, “it is forbidden to forbid” becomes a paradox which cannot logically be evaluated as true or false – it is a falsidical paradox – and results from the presupposition that the state may limit itself. The paradox of the ban on prescription, as the paradox of self-limitation of state power, is resolved by the displacement of our level of analysis.

V. Juridical Functions as Determining Legal Knowledge If truth is dynamic and contextual, rather than static; or if truth is not stable or fixed, but instead is relative, subjective; or if truth is at times un-

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known or unknowable (undecidable), how should one identify or develop knowledge? If one takes a constructivist approach (implicit in relativism) legal knowledge should be developed according to the purposes specified legal and results generated by the entire legal system. That is, legal science is constructed as a function of practical reasoning (phronesis) rather than of theoretical rationality. 1. The Maintenance of Order As a matter of positive law, the primary function of the legal system is to create order, and that justice is only a secondary function. The logic is that order is a necessary precondition to justice If one prefers to focus on justice, we must perhaps focus on the revolutionary systems, with the hope of a system focused primarily on justice, and then on order. While you might disagree, take that position as a stipulation: then more absolute the transcendental, the easier it is to impose a legal order. This explains the subsistence of tanscendentals despite nominalism – transcendental values are useful to the state for the maintenance of order. Thus, any criticism of transcendentals has a certain destabilizing potential. A legal system founded primarily on justice rather than order will be both more chaotic (more struggles) and more stable (less systemic change) than one, which rigidly and inflexibly imposes its view of what is right. 2. Prediction If the other practical function of a legal system is to enable prediction,51 the collapse of the universals is also a serious violation of that function. Without the idea of good and evil, what guide could be used to create just laws? If the truth is radically challenged, how is one to determine correct judgements under the law? The loss of these categories would prevent justification or explanation of law. It can be argued that the destruction of the foundation of the classical system of logic (the universals) must eventually also imply the collapse of logic itself. The result of rejecting the transcendentals is indeterminicity, creating a serious intellectual crisis in terms of the justification of state power. If all values are relative “rationality” disappears and prediction becomes increas51 “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Oliver Holmes, “The Path of the Law”, 10 Harv. L. Rev. 457–458 (1898), in Lloyd and Freeman (eds), Lloyd’s Introduction to Jurisprudence (Vº Edition), London: Steven and Sons (1985), p. 717.

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ingly problematic because all that is left is the will to power. However, pure voluntarism leads to dictatorship. Relativism (powerless) and voluntarism alike lack moral foundation and in that way are similar and complementary.

E. Conclusion: The Temporary Victory of Relativism At the end of the twentieth century moral relativism became dominant. The idea of a single truth, eternal and absolute was replaced by the cognition of several truths relativized mutually, and mutually defined to an ultimate circularity. Yet, despite indeterminicity, voluntarism, and relativism Aristotle’s organon essentially remains the foundation of correct reasoning. But, the foundations of this work, the transcendentals, are increasingly challenged. This fact indicates that the crisis of logical thinking and morality is not yet resolved. If there is a solution to the collapse of transcendent values, it is partly in a trivalent or quadrivalent logic, which accounts for the undecidable.

I. Volontarism One of the problems of the twentieth century was an extreme volontaristic approach, which led to wars, and genocides. Voluntarism must be mastered in order to ensure that laws are not arbitrary. That will be difficult because there is no longer any discernible external authority like the church, political parties, the nation . . . The only possibility is rationalism; rationalists, however, admitted that the foundation of their system is too arbitrary.

II. Relativism The other main current of criticism of transcendent values is the tendency to relativise moral values. This led to the collapse of the idea of good and evil, which reinforced the political crises of the century. To conclude, Aristotelianism, deformed first by scholasticism, then by the relativists, underlies modern legal thought. A theory of the good based on materialism instead of neo-Platonism is possible. The paradoxes and contradictions characteristic of contemporary legal theory can then be resolved with an objective epistemology. The problems of legal theory in modernity and late modernity are addressed in the remaining chapters from the monist-materialist-cognitivist-holist perspective.

Chapter 4

Into Modernity: Natural Law and Normative Inference A. Introduction: The Contemporary View Late modernity rejected the scholastic idea of universals, opting instead for axiological and even epistemological relativism, and materialism. The contradictions between axiological or epistemological relativism and ontological materialism cause contemporary theorists to question their thinking. So for example, Professor Duncan Kennedy, whom I greatly admire, is currently examining his early work, critical of what he calls Classical Legal Thought (CLT), better known to Germanophones as Begriffsjurisprudenz – conceptual jurisprudence. CLT is Duncan Kennedy’s reordering of the concept of formalism to a value neutral term corrected by his appreciation of the limits of the critique of legal realism. Duncan Kennedy keeps an abiding faith in the Frankfurt School method vectored through French structuralism and early post structuralism. Professor Kennedy argues that U.S. late 19th century legal thought underwent the sort of rupture and redoubling that is characteristic of post modernism as described by Derrida.1 This rupture and redoubling has, per Kennedy, resulted in a radical loss of determinicity, a failure of the idea of legal certainty. It certainly seems that way – at least to the U.S. perspective and perhaps to the French one as well.2 But that is not the perspective from Germany. There, expectation of legal certainty remains through recursive functions such as autopoesis.3 I think the law’s self-referential development 1 Jacques Derrida, “Structure, Sign, and Play in the Discourse of the Human Sciences”, in Writing and Difference, trans. Alan Bass. London: Routledge, pp 278– 294. 2 While studying at Paris II and even at Paris X, Nanterre, I encountered nothing but a healthy rejection of postmodern thinkers such as Derrida, Baudrillard and Bourdieu as being essentially unrealistic, irrelevant and/or unscientific. Post structuralists such as Foucault have a somewhat better reception since Foucault was undeniably working on science (as was the early Bourdieu). 3 E. g., Gunther Teubner, See, e. g., “ ‘And God Laughed . . .’: Indeterminacy, Self Reference and Paradox in Law”, in: Christian Joerges and David Trubek (eds.), Critical Legal Thought: An American-German Debate, Nomos, Baden-Baden 1989, 399–434 and in: Jean-Pierre Dupuy and Gunther Teubner (eds.), Paradoxes of SelfReference in the Humanities, Law and the Social Science, Anma Libri, Stanford

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(autopoesis) creates an emergent4 characteristic of the system called legal certainty. Thus, the self-referential reiteration of the identifying concept creates identity and results in legal certainty. Rather than resulting in a systemic breakdown, as happened co-incident to the intensive repetition of distinctions such as “public/private” in U.S. legal thought, reiteration of the system’s definitional concept results in the system’s maintenance. Recursive functions can and sometimes do terminate. There was a breakdown in logic and rationality in American legal thinking. However, I do not think this failure of legal thinking resulted from the intensive replication and repetition of the defining concept(s) of the system. Rather, pervasive indeterminicity took hold due to conceptual failures regarding language (indeterminicity and arbitrariness in language due to self reference), the relation of morality and law (the supposed inability to infer norms, the supposed subjectivity of moral choice), over-analogizing to other sciences without a proper and thorough understanding of the theory analogically imported into law (Einstein’s relativistic physics; Gödel’s theorem) and an erroneous epistemological dualism inherited from the scholastics. Epistemological and axiological incertitude utterly demolished a conceptual system that was at best only semi-scientific precisely because it was not sufficiently developed to reach basic questions of method (whether legal science is possible and how) – and still is not. Semantic failure defines post Vietnam American legal theory. That systemic conceptual failure occurred super-structurally due to conceptual problems of law and logic. However, the infra-structural fact of the Vietnam War explains why the latent problems became exposed. Semantic failures in late modern American legal thought will not be further treated in this chapter. My take on 20th century legal theory is different from Professor Duncan Kennedy’s. Rather than seeing legal theory as having undergone a rupture, redoubling and disintegration OR a rupture, redoubling and reintegration modern Anglo-American legal theory has been characterized by numerous “fausses pistes” – blind alleys, rabbit trails, call them what you will – that are heuristically sterile dead ends. Post modernism is just the latest example of a false trail in U.S. legal thinking. 1991, 15–51. John Paterson and Gunther Teubner, Changing Maps: Empirical Legal Autopoiesis (in: Reza Banakar and Max Travers (eds.), Theory and Method in Socio-legal Research, Hart, Oxford 2005, 215–237 and in: Social an Legal Studies 7, 1998, 451–486). 4 Emergent intelligence are behaviors, which emerge from individual actors (agents). The group, as a whole, acts in ways that are intelligent though there is clearly no thinking at the individual level. A beehive is an excellent example of a system with emergent intelligent behaviors.

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In this chapter I describe the two principal errors in late modern legal thought and explain their resolution. Professor Duncan Kennedy describes legal thought as pre-classical (ante bellum), classical (ca. 1880–1945) and what he calls “modern” discourse (ca. 1945–present). This choice of terms is unfortunate and will lead to confusion. I would use different terms. “Modernity” (modernism) is the vector (porteur; Träger) of the idea of progress, scientificity and certitude. Modernity defines itself around a grand narrative of the necessity, possibility and desirability of progress through science. In contrast, what Kennedy calls “modern” should be renamed “contemporary” since much of contemporary thought is post-modern (including aspects in Kennedy’s thought) and post-modernism is neither scientific nor deterministic or even determinable. PoMo rejects the grand narrative of “progress” that defines even the current era of late modernity (known as “fast capitalism” in Frankfurt school parlance). Likewise, Kennedy’s distinction between “pre-classical” and “classical” legal theory is not sufficiently well defined to be tenable and is, in my opinion, not tenable. I would use the term “pre-scientific” to refer to what Professor Duncan Kennedy considers “pre-classical”. I would use “modernity” (not modern) to describe what he calls “classical”. Professor Kennedy’s choice of terms is going to generate a lot of confusion rather than clarity because he “crosses wires” calling the post-modern modern and things neither Greek nor Roman classical. Another potential source of confusion is that he does not make it obvious that he is using CLT as a value neutral term for formalism that appreciates that the critiques of formalism were simplistic. Conceptual jurisprudence is both a more accurate and less misleading translation of the term Begriffsjurisprudenz. I would also add a major caveat to Kennedy’s use of terms: Many features of pre-scientific law still are a part of the law. “Character evidence” is the most obvious example where we convict and punish not on the base of scientific certainty but due to the character (whatever that is) of the plaintiff and defendant. Not only do pre-scientific elements, such as swearing oaths on the bible, continue to play a role in the law, scientificity clearly was an aspect of some pre-modern legal systems, the notable examples being the Greek and Roman systems of justice. Most of so-called CLT was already well described with no pre-scientific invocation to the Gods by Aristotle, and then with increasing elements of superstition by Cicero and Aquinas until finally the unscientific religiosity began to recede again in the works of Hobbes (where it is still evident) Coke, Locke and Blackstone. Note that the rise and fall of religiosity in legal analysis exactly parallels the descent of Eu-

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rope into the dark ages and its rise out of them. The productive material base determines the rationalizing ideological superstructure. This fact illustrates another point where I must respectfully disagree with Professor Kennedy. The system of production (the base or infrastructure) directly influences and even determines the super-structural justifications of the system. That duality – the forces of production (base) and the relations of production (superstructure) – is just basic Marxism. The fact that the mode of production definitely alters the way we think about law can also be seen in the rise and fall of the legal realists5 – they appeared with the industrial revolution in the 1880s, crested as a radical critique in the 1930s and became the system they opposed by 1945. All along the way we can trace the development of “realist” thought and their successors by measuring America’s rise as an industrial power, decline due to world depression, and re-ascendance as global empire. One can project the current decline of American power will either lead to a definitive breakdown or to a quasifascist rationalization of relations of power – likely, both. The impetus is nothing other than economics. Professor Duncan Kennedy’s universalizing discourse, despite its phenomenological and thus unscientific character, still falls within the concept of modernity because a) universal narratives are part of modernity b) the key universal narrative of modernity is progress c) Kennedy believes in and desires, rightly, progress for the world’s poorest. Kennedy is constantly searching for global and globalizing concepts, variables and functions. So, despite the fact that his phenomenological perspective is post modern – it emphasizes subjectivity and is simply not demonstrable and thus not science, I am still willing to put Kennedy in the modernist camp. Unfortunately, on these specific issues he is not on the cutting edge, rather he is at the outer limits, hence this chapter. The problem with universal discourses such as “modernity” and “progress” is not that they motivate demagogues and blind masses (the usual postmodernist complaint). The problem is, such claims are by definition indemonstrable. Kennedy recognizes this and declares his meta-analysis “phenomenological”: an indemonstrable thought experiment. Okay, then I would like to go to Church and have thought experiments about my blessed after5 In agreement with Bentham and against Blackstone the group of legal writers called American legal realists maintain that judges do in fact make law. However, against Bentham they maintain that judges should take a hand in making law, and against both Bentham and Blackstone they maintain that judges must be makers of law-and by “must” is meant that judges necessarily make law, that this is intrinsic to the very process or activity of judging. Theodore M. Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 1.

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life. That would be just as scientific a contemplative exercise. At any rate, Kennedy’s phenomenology may be beyond salvation. The concepts and time periods and even authors are too ambiguous, vague and diffuse to be the object of science whether by empirical demonstration or even merely by formal proof. So one could say any of the universal discourses of modernity are unscientific. That would at least as consolation justify my regarding Professor Duncan Kennedy as still within modernity. As an example of the ambiguity of, which I speak, I imagine, when pressed, that Professor Kennedy would agree, that Aristotle, Cicero and probably even Aquinas belong in his definition of CLT – even though they wrote centuries and even millennia before 1865. His alternative move would be to abandon the poorly chosen term CLT – which I do not expect him to do though he might given this critique of his basic terms and of the fact that Aristotle, Cicero and Aquinas, like Blackstone and Coke, are clearly part of what Professor Duncan Kennedy would call CLT. However, when you open the concept of CLT enough to cover all actors that rightly belong in the formal inductive-deductive model the temporal and/or spatial frame becomes too broad to be useful as a predictor or even descriptor of social reality. This is okay if Professor Kennedy wants to present his globalized/globalizing concepts as thought experiment, a purely formal system or a phenomenological perspective. Just do not call it science – and he does not, but that is a problem because the world’s poorest need and deserve a science of justice through law and a science of economic development. The problem with late modern American legal thought is that it has not grappled with the scientificity of law. Well worked and resolved concepts in European legal theory such as scientific method in legal thought are simply ignored in American discourse. We do not for example see the debate: “Is law an art or a science?” in the U.S. scholarly community. How could we? No one has a definition in late modernity of what “arte” and “physis” are. Late modern U.S. legal theory is not even looking at Aristotle excepting a few neo-conservatives, who are trapped in the Machiavellian machinations of Leo Strauss and Carl Schmitt, thus losing any moral impetus to transform their genuinely classical (i. e. Greco-Roman) thought into late modern terms. While I will not enter mythos of pure concepts in search of some explanatory yet indemonstrable phenomenological principle, I will demonstrate that at least two of the major inquiries of late modern legal thought are pointless: (1) The dichotomy of positivism and natural law, a key feature of legal discourse in late modernity, is a false dichotomy. (2) The “is/ought” distinction, also a key feature of legal discourse in late modernity, is likewise a false dichotomy.

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One can mix “ought” and “is” statements in a normative syllogism without falling into an error of form. Moreover, all ought statements can be recast as conditional “is” statements. The usual naive interpretations of David Hume as arguing that normative inference be impossible are wrong. The debate nurture versus nature is also a false dichotomy.

B. The False Dichotomy of Either Positivism or Natural Law but not Both The opposition of positivism to natural law is a false dichotomy. This basic fact, though easily proven, remains the greatest stumbling block in contemporary legal philosophy. This proposition, simple on its face, is on closer examination rendered complex by the multiple meanings of natural law. At times natural law means God’s law (Gottesrecht) at other times the law of reason (Vernunftrecht) at times natural justice (ius naturale) at times natural law (lex naturalis). I take up the idea of natural law as the law of reason, i. e. Vernunftrecht and do recognize the distinction between natural justice (moral claim) and natural right (lex naturalis). Confusion about natural law also results from the fact that both positivism and natural law (which are complementary and not dichotomous) can be regarded as either descriptive theories of what law is, prescriptive theories of what law ought to be, or even how legal science ought to be done. Because of this multiplicity of meanings it is all too easy to “lose the forest for the trees.” However, we can make sense of the competing concepts within the ambiguous English term “natural law” (law, justice, reason, morality) by considering a classical thinker, Aristotle and an early modern thinker, Hobbes.

I. Aristotle Aristotle believed that there was a natural world (physis), inevitable and unchanging.6 This physical world could not be otherwise than it is. He also believed there was a man-made world, the artificial (tekhne), which could be other than it is.7 This ontology only appears to be dualistic: each of 6 Aristotle, Physics 192b:7–8 (R.P. Hardie & R.K. Gaye trans.), in 1 The Complete Works of Aristotle 329 (Jonathan Barnes ed., rev. Oxford trans., Princeton Univ. Press 1984) (“Of things that exist, some exist by nature, some from other causes.”). 7 Aristotle, On the Universe 392a:31–5 (E.S. Forster trans.), in 1 The Complete Works of Aristotle 628 (Jonathan Barnes ed., rev. Oxford trans., Princeton Univ. Press 1984).

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these “different” worlds is a complementary part of a whole, which is greater than either alone. This ontology, dialectical opposition of competing principles synthesized into a whole greater than either alone, is reflected in Aristotle’s theory of justice.8 For Aristotle, some laws were natural – they could not be otherwise.9 Yet other laws were conventional, i. e., positive.10 Aristotle correctly recognized that while some acts would be illegal in all societies, for example unprovoked murder, others would only be wrongful in certain societies. Aristotle even recognized that the narrow and common view that justice must either be natural or positive is erroneous: “Further, this last-mentioned Just is of two kinds, natural and conventional; the former being that, which has everywhere the same force and does not depend upon being received or not; the latter being that, which originally may be this way or that indifferently but not after enactment.”11 Failure to understand that these two different types of justice are mutually complementary and are reconciled through dialectical synthesis is the source of the false dichotomy. This blind spot in modern thought was a result of Cartesian scepticism, which, along with nominalism and atomism, saw the world only in terms of constituent elements and not in terms of the whole, which arises therefrom.12 Aristotle’s ontology, which sees nature (physis) and art (tekhne) as complementary parts of a greater whole, is reflected in his treatment of justice in the particular (i. e., justice not in the abstract but as a specific relation). Aristotle saw particular justice as of two types, natural and positive.13 Nat8 “Aristotle denies the dichotomy of natural and positive order as well as the constitutional formation via the idea of law in relation to people. [i. e. the formation of the state’s constitution through appeal to ideal forms] For him man is by nature a social being and every social order is based in part on natural law and in part on statutory law seen as mutually conditioned and the just as a proportion and the unjust as a violation against the proportional” Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 841. 9 See Aristotle, Nicomachean Ethics of Aristotle 117 (D.P. Chase trans., Ernest Rhys ed., J. M. Dent & Sons Ltd., 1911) (1920) (“Nay, we may go further, and say that it is practically plain what among things, which can be otherwise does exist by nature, and what does not but is dependent upon enactment and conventional, even granting that both are alike subject to be changed.”). 10 See id. (“Further, this last-mentioned Just is of two kinds, natural and conventional; the former being that, which has everywhere the same force and does not depend upon being received or not; the latter being that, which originally may be this way or that indifferently but not after enactment.”). 11 Id. 12 See William Shakespeare, The Merchant of Venice act 2, sc. 2 (“[M]urder cannot be hid long; a man’s son may, but at the length truth will out.”).

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ural justice applied to nature; those things, which could not be otherwise (thus corresponding to physis). Positive justice applied as a result of human convention and was man made (thus corresponding to tekhne). Those laws, which were positive, were the result of social justice, which Aristotle called proportional justice, described as a geometric relation between two unlike things mediated by a positive common element.14 This mean, a variable, could be otherwise. Thus in the communist society of Sparta, equality of property was the mean determinant of social justice. Although citizens were unequal in other rights and duties, their commonality of property was seen as a factor that bound them together and also prevented the state from becoming decadent.15 In contrast, the mean element in liberal Athens was excellence.16 Thus, persons of different ability would have different shares in social wealth according to their virtues.17 As to social justice, i. e., the proportion of shares of social wealth distributed to each individual, which Aristotle called distributive justice, Aristotle was clear. Distributive justice is determined by positive law and would 13

Aristotle, supra note 9, at 105. “Now of Particular Justice, and the Just involved in it, one species is that, which is concerned in the distributions of honour, or wealth, or such other things as are to be shared among the members of the social community (because in these one man is compared with another may have either an equal or an unequal share), and the other is that, which is Corrective in the various transactions between man and man.” Id. 14 See id. at 108. 15 See The Works of Aristotle Translated into English, Politics, Book II, Ch. V, 1263b–1264a (Benjamin Jowett ed., Oxford Univ. Press 1966). “The state, as I was saying, is a plurality, which should be united and made into a community by education; and it is strange that the author of a system of education, which he thinks will make the state virtuous, should expect to improve his citizens by regulations of this sort, and not by philosophy or by customs and laws, like those, which prevail at Sparta and Crete respecting common meals, whereby the legislator has made property common.” Id. 16 Alexander Hamilton described Athens as a commercial republic. See The Federalist No. 23 (Alexander Hamilton) (“Athens, unlike Sparta, was a bustling citystate where trade, commerce and the arts flourished.”). See also Eugene R. Milhizer, Justification And Excuse: What They Were, What They Are, And What They Ought To Be, 78 St. John’s L. Rev. 725, 743 (2004). 17 “[I]f they are not equal, they will not have what is equal, but this is the origin of quarrels and complaints-when either equals have and are awarded unequal shares, or unequals equal shares. Further, this is plain from the fact that awards should be “according to merit”; for all men agree that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit, but democrats identify it with the status of freeman, supporters of oligarchy with wealth (or with noble birth), and supporters of aristocracy with excellence.” The Complete Works of Aristotle, The Revised Oxford Translation 1785 (Jonathan Barnes ed., Princeton University Press (1984).

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vary from society to society.18 Aristotle even points out the conventional nature of the value of money as indicated by its name “nomos,” which is nearly the same word in Greek as the name for the concept of law.19 Distributive justice in Aristotle’s thought, in my opinion, corresponds to positive justice, since different societies chose to share out their wealth according to different measures. However, there is also an invariant, natural justice, which for Aristotle inevitably results from nature. This, in my opinion, corresponds to his concept of arithmetic justice. Arithmetic justice, that is justice in transactions, exists where each party to a transaction receives an equal benefit for an equal burden.20 Thus, for example, where a person trades shoes for shirts they should receive the same amount of shirts whether in Athens or Sparta. For Aristotle, in sum, there is a positive justice as to those things, which could be otherwise, for example, traffic ordinances. And there is a natural justice as to those things, which are determined by human nature, such as parricide. We can already see that the dichotomy of natural and positive justice, that justice must be either positivist or naturalist, is false. As to those invariables, those things, which cannot be otherwise, there is a natural justice. However, to those things, which are variable, which depend on climate, geography or culture, there is a positive justice, which could be otherwise but is conventionally so in this particular society.

18

See Aristotle, Nicomachean Ethics of Aristotle 107 (D.P. Chase trans., Ernest Rhys ed., J. M. Dent & Sons Ltd., 1911) (1920) (“[F]or all agree that the Just in distributions ought to be according to some rate: but what that rate is to be, all do not agree; the democrats are for freedom, oligarchs for wealth, others for nobleness of birth, and the aristocratic party for virtue.”). 19 See id. at 113 (“[M]oney has come to be, by general agreement, a representative of Demand: and the account of its Greek name [nomisma] is this, that it is what it is not naturally but by custom or law ([nomos]), and it rests with us to change its value, or make it wholly useless.”). 20 Id. at 108–11. “And the remaining one is the Corrective . . . [T]he Just, which arises in transactions between men is an equal in a certain sense, and the unjust an unequal, only not in the way of that proportion but of arithmetical. Because it makes no difference whether a robbery, for instance, is committed by a good man on a bad or by a bad man on a good, nor whether a good or a bad man has committed adultery: the law looks only to the difference created by the injury . . . [T]his Unjust, being unequal, the judge endeavours to reduce to equality again, because really when the one party has been wounded and the other has struck him, or the one kills and the other dies, the suffering and the doing are divided into unequal shares; well, the judge tries to restore equality by penalty, thereby taking from the gain . . . So then the Just we have been speaking of is a mean between loss and gain arising in involuntary transactions that is, it is the having the same after the transaction as one had before it took place.” Id.

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II. Hobbes Aristotle is not alone in showing us that the supposed dichotomy of natural law versus positivism is a false one. According to Hobbes, there is such a thing as natural law, which he calls jus naturale, but it is the law of the jungle-the right of self preservation.21 Hobbes distinguishes between natural law and natural justice. Natural law is the law of the strongest, while natural justice is the use of reason to derive commands of positive law, the first of, which are directly related to natural law, such as the right to self-defence.22 Hobbes, like Aristotle, provides a plausible explanation of how positive and natural law co-exist. Hobbes’ natural law, the law of the jungle, is in fact identical to some accounts of positive law, notably “the bad man theory.”23 To that view, people obey law, ultimately, because of the fear of sanction. If we understand “natural law” like Hobbes does, as meaning “the law of the jungle,” the distinction between positivism and natural law simply disappears. Of course, Hobbes’ view of natural law is not the only one. His is a descriptive view of natural law and does not argue that the law of the jungle should be the human law. Indeed, Leviathan is an argument for an “artificial man” – the state – which will replace the natural law of the jungle with a conventional (positive) law. For Hobbes we escape the law of the jungle through legal convention. Hobbes and Aristotle split, in that Hobbes postulates the possible existence of a “state of nature” of persons outside of a state. For Aristotle such would be a physical impossibility. Aristotle re21 See Thomas Hobbes, Leviathan 91 (Richard Tuck ed., Cambridge University Press) (1996). “The right of nature, which writers commonly call Jus Naturale, is the liberty each man hath to use his own power as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which, in his own Judgement and reason, he shall conceive to be the aptest means thereunto.” Id. 22 “A law of nature (Lex Naturalis) is a Precept, or general Rule, found out by Reason, by, which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same: and to omit, that, by, which he thinketh it may be best preserved. For though they that speak of this subject, use to confound Jus, and Lex, Right and Law; yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear; whereas LAW, determineth, and bindeth to one of them: so that Law and Right, differ as much, as Obligation, and Liberty; which in one and the same matter are inconsistent.” Id. 23 Oliver Wendell Holmes, The Path of the Law, 110 Harv. L. Rev. 991, 993 (1997) (Reprint of address Justice Holmes of the Supreme Judicial Court of Massachusetts delivered at the dedication of the new hall of the Boston University School of Law on Jan. 8, 1897).

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cognizes, correctly, that man (he was a sexist) is a social animal and cannot survive, let alone prosper, in isolation. For Aristotle, the individual is not self-sufficient – as proven by example in newborn humans. A postulated state of nature is, however, central to the U.S. concept of democracy. The fact that a myth is the foundation explains the failure of the American constitutional order, a failure reflected in recurring constitutional crises shored up by extreme constitutional fiats issued by nine elderly, unelected judges, most of whom are white men, and all of whom are wealthy. The existence of a “state of nature,” Hobbes “war of all against all,”24 is impossible because individuals, even adult individuals, are not self-sufficient.25 Man is a social animal26 and consequently, “the state of nature” is impossible. Still, if natural law is identical to the law of the jungle, then we can avoid the false dichotomy, which opposes naturalism and positivism a second way. However, Aristotle’s explanation is more accurate and has greater explanatory power and thus, to a materialist scientist, is the better answer. How does this understanding of the relationship of positivism and natural law affect our understanding of legal science? First of all, it obviates a majority of the discourse of U.S. legal theory in the last century. Since Holmes, at least, U.S. law has taken the position that there is a “positive” law capable of scientific exposition and analysis and that “natural” law is ambiguous at best, a charade at worst. I reject that view. Positivism, despite its claim to scientificity, is an amoral theory. However, law is an inherently normative discipline. Legal science is a master science, for it determines, which science is to be studied and to what degree. We can also see the enduring relevance of natural law in the greatest failure of the last two millennia in the collapse of fascism. Fascism proved the 24 “Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition, which is called war; and such a war as is of every man against every man. For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and therefore the notion of time is to be considered in the nature of war, as it is in the nature of weather. For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together: so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary. All other time is peace.” Thomas Hobbes, Leviathan 88–89 (Richard Tuck ed., Cambridge Univ. Press 1996) (1651). 25 See The Works of Aristotle Translated into English, Politics, Book I, 1253a (Benjamin Jowett ed., Oxford Univ. Press 1966) (“The proof that the state is a creation of nature and prior to the individual is that the individual, when isolated, is not self-sufficing; and therefore he is like a part in relation to the whole.”). 26 See id. at 1252b (“[M]an is by nature a political animal.”). See also id. at 1253a (“A social instinct is implanted in all men by nature.”).

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normative folly of divorcing law and morality. Consequently, natural law thinking pervades the German constitution to this day and rightly so, for the consequences of an amoral law were 15 million dead Germans and over 20 million dead Russians. Yet the failure of peoples who have not yet endured fascist tyranny or have been its victim to appreciate the moral character of law is perhaps understandable. Given the life and death stakes, however, such an error is inadmissible. This failure of positivism to adequately describe reality can also be seen in the post-war Nuremburg judgments. There is no doubt that the crimes of the accused at the Nuremburg and Tokyo tribunals were not crimes under any positive law in 1939. Consequently, the only plausible argument was that the accused were guilty of violating laws unwritten in the law books but inscribed on every human heart. The natural law elements of the Nuremburg tribunals emerge, usually reluctantly. This reluctance to defend the moral virtue of natural law is due to either the multiple meanings of natural law (“the law of the jungle”, “the law of reason,” “the law of nature,” and “the law of God”), the perceived unscientific character of natural law, or both. As evidenced in our brief exposition of Aristotle, scientificity and naturalism can go well together. A final legal development, which should conclusively prove the enduring character of naturalist theories of law, is the idea of “jus cogens.” Jus cogens norms, those rules of international law27 that are non-derogable, are basically a post-war phenomenon. The only tenable defence of jus cogens is that they are expressions of universal law, i. e. natural law. he idea that there are universal laws, which can be violated by no one, is the essence of natural law thinking. In the post-war era, it does not take much insight to realize that there was a quiet, and absolutely necessary, revival of natural law as a healthy reaction to the excesses of National Socialism. U.S. legal theory would do well here to consider the lead taken by European and international legal scholarship and grapple further with Aristotle on natural law and positivism. 27 The Court in Sosa also reiterates the U.S. view on the sources of international law found in The Paquette Habana: “[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of, which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.” Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2766–67 (2004). (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)).

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III. The Implications of Re-cognizing the False Dichotomy of “Naturalism v. Positivism” For the naturalist, the common law has a “brooding omnipresence” and is discoverable by reason.28 But the idea that law is either positive or natural is a false dichotomy, which dominated the last century of legal reasoning.29 This fact has important implications for legal practice. If the positivist/ naturalist dichotomy is, or at least can be, a false dichotomy, then that puts into question decisions such as Erie Railroad Co. v. Tompkins,30 which abrogated the existence of a general federal common law.31 Erie presumes the positivist/naturalist dichotomy and accords it a decisive role in decisionmaking.32 The positivist decisions of the early 20th century were justified by the idea that a positive legal science was possible and desirable because a naturalist legal science would be at best superstition, at worst charlatanism. However, a naturalism based not on the view of natural law as the will of God, but rather as the deliberative result of logic (Cicero’s right reason in accord with nature – the deist approach taken by the U.S. founding fathers), or a harsher view of natural law as inevitable in human nature or the world (the nasty and brutish view taken by Hobbes – natural law as the law of the jungle, positive law as attempts to tame it), shows us that 28 See Sosa, 124 S.Ct. at 2760. “[I]n the late 18th century . . . positive law was frequently relied upon to reinforce and give standard expression to the ‘brooding omnipresence’ of the common law then thought discoverable by reason. As Blackstone clarified the relation between positive law and the law of nations, ‘those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of [its] decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without, which it must cease to be a part of the civilized world.” Id. 29 See id. at 2762. When § 1350 was enacted, the accepted conception was of the common law as “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.” Now, however, in most cases where a court is asked to state or formulate a common law principle in a new context, there is a general understanding that the law is not so much found or discovered as it is either made or created. Id. (citations omitted). 30 304 U.S. 64 (1938). 31 See Sosa, 124 S.Ct. at 2762 (“Erie R. Co. v. Tompkins . . . was the watershed in, which we denied the existence of any federal ‘general’ common law . . . which largely withdrew to havens of specialty, some of them defined by express congressional authorization to devise a body of law directly.”). 32 See id. at 2771 (Scalia, J., concurring in part and concurring in the judgment) (“Because post-Erie federal common law is made, not discovered, federal courts must possess some federal-common-law-making authority before undertaking to craft it.”).

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science and two of the main variants of natural law are perfectly compatible. However, most importantly, when we situate positivism and naturalism within the schema of justice described by Aristotle, we see that natural law and positive law are complementary, and we cannot understand justice with either alone. To Aristotle, positive law corresponds to distributive justice (social justice) and natural law corresponds to justice in the particular, i. e., individual transactions among physical persons. Because Erie was based on a false dichotomy, it was wrongly decided. That reopens the possibility, and necessity, of federal common law received by the United States as a successor state to the British Crown. So the recognition of naturalism, whether in Aristotle, Cicero, Hobbes, Coke, Blackstone or any of the other great legal minds, and its application to modern legal thought, should be obvious. Yet “natural law” is regarded as superstitious nonsense and unscientific charlatanism? Recognizing naturalism explicitly as described and advocated in this chapter would reopen vast tracts of legal terrain to argument. The truth will out.33

C. Normative Inferencing I. Hume’s Trap Hume observes that those who make prescriptive arguments – arguments about what one ought to do – generally make the following mistake:34 the proponent of the argument will begin with a series of descriptive statements – factual descriptions of reality as it is35 – but the argument’s proponent will reach a prescriptive conclusion – that one ought to do a certain thing.36 Hume’s critique is that the proponent of the prescriptive argument has shifted from descriptive statements of what “is” (“is” statements) to a pre33

See William Shakespeare, The Merchant of Venice act 2, sc. 2 (“[M]urder cannot be hid long; a man’s son may, but at the length truth will out.”). 34 See David Hume, A Treatise of Human Nature 469 (L.A. Selby-Bigge & P.H. Nidditch eds., Oxford Univ. Press 2d ed. 1978) (1739–40) [hereinafter Hume, A Treatise of Human Nature]. “In every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary way of reasoning . . .” Id. 35 “[T]he author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God. or makes observations concerning human affairs . . .” Id. 36 “[W]hen of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.” Id.

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scriptive statement of what “ought” to be done (“ought” statements).37 Hume implores proponents of prescriptive arguments to explain how they make this transition from descriptive “is” statements to prescriptive “ought” statements.38 That is all Hume says on the subject – nothing more, nothing less. If one is to mix statements of what is and what ought, one must make explicit the prescriptive or descriptive nature of those statements and how one shifts from description to prescription – for example, the major premise that “one ought to be kind” and the minor premise that “torturing people is not kind” with the conclusion that “thus, one ought not torture people.” This is a perfectly valid syllogism of practical reasoning (phronesis) in the form of modus ponens, and it is unambiguous because the “is” and “ought” statements are explicit. One may attack either the major or minor premise with no risk of confusion of an “is” statement with an “ought” statement. If both the major and minor premises were “is” statements with an “ought” conclusion, that might be per se invalid. However, Hume does not get that explicit in his critique of enthymematic “ought” statements. Even if “is” and “ought” statements had to be distributed in the syllogism such that there was a prescriptive statement both in the premise and in the conclusion, which is what Hume was really referring to, that might not be invalid if one can recast “ought” statements as a particular kind of “is” statement. However, Hume leaves a lot unsaid. Hume’s argument, though clear on its own terms is, in fact, very modest. Hume is merely exhorting philosophers to make their “is” and “ought” statements explicit and to show how they make the transition from an “is” statement to an “ought” conclusion. However, he might believe they cannot and, in all events, puts the burden of proof on he who would infer norms. That move is less ambitious and tougher to refute than trying to determine when and whether normative inferencing is possible. However, Hume’s modest proposal has been extended well beyond its own terms.39 Hume has been interpreted to argue that normative inferenc37 This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ‘tis necessary that it shou’d be observ’d and explain’d; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. Id. 38 But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou’d subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv’d by reason. Id. 39 See Nicholas Capaldi, Hume’s Rejection of ‘Ought’ as a Moral Category, 63 J. PHIL. 126, 135–36 (1966). “Hume’s statements about moral sentiments are confused with his statements about moral judgments. It is this confusion, which largely accounts for the misinterpretation of (I-O). That (I-O) is not concerned with moral

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ing – deriving “ought” statements – is somehow impossible.40 However, Hume does not make that argument.41 Those who take the overly broad interpretation of Hume improperly argue that Hume shows that normative inferencing is impossible, and if that is so, it is also impossible to make any “ought” statements at all.42 But this is not Hume’s point.43 If normative inferencing were impossible, then prescriptive argumentation would also be impossible. And, if prescriptive argumentation were impossible, then everyone would be relativists, regardless of their subjective opinions about their (supposed) objectivity. However, the logical conclusion is based on a faulty premise. Hume does not argue, let alone prove, anything about normative inferencing. However, this misinterpretation of Hume as arguing for an imjudgments but with moral sentiments is best seen in two ways. First, the entire section deals with a single problem: the attempt to show that moral distinctions or sentiments are perceived not as relations of ideas but as impressions. Second, the conclusions of (I-O) all deal with the analysis of moral distinctions as impressions. Since (I-O) concerns moral sentiments and not moral judgments, we may inquire into the cause of the confusion. At least one reason is that the paragraph is occasionally read or quoted in an incomplete manner . . . Once we accept the view that moral distinctions are impressions, we must also accept the fact that we can make inferences about such distinctions and even infer their existence from accompanying circumstances.” Id. 40 See W. D. Falk, “Hume on Is and Ought, in Ought”, Reasons, and Morality 551 (W.D. Hudson ed., MacMillan 1969). Hume supposedly denies the deductibility of the latter from the former, as the ‘ought’ expresses ‘a new relation or affirmation’, ‘entirely different from the others’. And this is commonly taken as saying that the ought statement is ‘different’ and non-deducible, because it is no longer a ‘purely factual statement’, to wit one that makes another ordinarily testable truth claim. However, recent criticism, by W.D. Hudson and others, points out that Hume says other things seemingly inconsistent with this . . . How is one to understand Hume here so as to save him from incoherence? It is said by Flew that Hume really meant that moral statements, rather than being about attitudes, serve to express them. The real Hume was the ancestor of noncognitivism, and the ‘is-ought’ passage its early charter. By contrast, it is said by MacIntyre that really Hume did not mean to deny deducibility. When he said that it ‘seemed inconceivable’, he meant that it only seemed so without really being so. Id. 41 See A.C. MacIntyre, “Hume on ‘Is’ and ‘Ought,’ in The Is-Ought Question 485, 493 (W.D. Hudson ed., MacMillan 1969). “Hume in the celebrated passage does not mention entailment. What he does is to ask how and if moral rules may be inferred from factual statements, and in the rest of Book II of the Treatise he provides an answer to his own questions.” Id. 42 See W.D. Hudson, Hume on Is and Ought, in The Is-Ought Question 511 (W.D. Hudson ed., MacMillan 1969). “Here, as elsewhere in Hume, adumbrations of modern theory are distorted by his failure to differentiate clearly and explicitly logical from psychological or sociological issues.” Id. 43 See Falk, supra note 40, at 562. “Hume’s point . . . is not to deny that merit is cognitively derived from fact; but to make sure that theis derivation is not mistaken for deduction.” Id.2.

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possibility of normative inferencing is one of the bases of contemporary moral relativism.44 Moral relativism as an ideology is a failure, and its failure helps explain the subsequent failure of the left.45 Exposing misinterpretations of Hume sets the stage for a correct reposition of political discourse regarding inalienable human rights back into the arena of morality and out of the field of alienable economic goods. By showing that normative inferencing is possible (distributed prescriptive major premise and conclusion), it becomes possible again to argue that (1) one ought to oppose killing; (2) the war in Iraq kills; and (3) thus one ought to oppose the war in Iraq. If one asks why one ought to do anything, the quick answer is “survival of the species.” That is materialism-grounding statements not in ideals floating in the air, but in the facts of the world as it is.

II. Hume and Kelsen The presupposition that moral values are statements about facts, and not themselves facts, can be traced to David Hume. Hume, in turn, influenced Kelsen to adopt this dualism. For Hume and Kelsen, there is an essential and ineluctable difference between statements of fact (“is” statements) and statements about facts (“ought” statements).46 For Hume, to state that there is insufficient food in Ireland to feed the Irish is a statement of fact: either there are or are not X kilograms of wheat needed to feed Y persons to avert starvation. A statement, however, that there is insufficient food to feed the Somalians, and thus one ought to donate food to them is, according to Hume, an “ought” statement. Hume is generally presented as rejecting the viability of “ought” statements as being implicit in “is” statements, and thus as rejecting normative and practical syllogisms.47 That representation, 44 See, e. g., Ethics, The Internet Encyclopedia of Philosophy (2006), http:// www.iep.utm.edu/e/ethics.htm. “David Hume argued that moral assessments involve our emotions, and not our reason. We can amass all the reasons we want, but that alone will not constitute a moral assessment. We need a distinctly emotional reaction in order to make a moral pronouncement. Reason might be of service in giving us the relevant data, but, in Hume’s words, ‘reason is, and ought to be, the slave of the passions.’ Inspired by Hume’s anti-rationalist views, some 20th century philosophers, most notably A.J. Ayer, similarly denied that moral assessments are factual descriptions.” Id. 45 See, e. g., Eric Barnes, Supplemental Notes on Relativism (Sept. 29, 1999), available at: http://tinyurl.com/ericbarnesrelativismarchive. 46 “It is generally accepted that the first person to deny the possibility of this inference [from is to ought] was David Hume.” Capaldi, supra note 39, at 126. 47 Hume, A Treatise of Human Nature, supra note 34 (asking readers to note the distinction between is and ought statements and to explain how one can be derived from the other – and nothing more nor anything less).

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however, is inexact.48 Hume does infer norms.49 But proper normative inference,50 according to Hume, must be explicitly declared.51 In fact, the practical syllogism evident by the example of a famine is obvious. We must 48 “Hume’s point in the Inquiry, and in the ‘is-ought’ passage, if read in the light of his comments in the Inquiry, is not to deny that merit is cognitively derived from fact but to make sure that this derivation is not mistaken for deduction . . . The Inquiry, more so than the Treatise, shows Hume’s concern in this matter to be twoedged: to ward off the entrenched confusion of evaluative inference with demonstrative proof; and to show what cognitive procedure is instead . . . Hume’s point is that the facts as known are the basis, not of a formal, but rather of an experimental, proof . . .” Werner David Falk, Hume on Is and Ought, Canadian J. Phil. 562–63 (1976). 49 “Hume makes it clear that he believes that factual considerations can justify or fail to justify moral rules.” MacIntyre, supra note 41, at 485, 489. 50 “While Hume is skeptical about causality and thus deduction, he is even more radical in his critique of induction: [A]n assumption that arguments must be either deductive or defective . . . is the very assumption, which underlies Hume’s skepticism about induction. And this skepticism is commonly treated as resting upon, and certainly does rest upon, a misconceived demand, . . . ‘the demand that induction shall be shown to be really a kind of deduction.’ This is certainly an accurate way of characterizing Hume’s transition from the premise that ‘there can be no demonstrative arguments to prove, that those instances of, which we have had no experience resemble those of, which we have had experience’ to the conclusion that ‘it is impossible for us to satisfy ourselves by our reason, why we should extend that experience beyond those particular instances, which have fallen under our observation.’ Part of Hume’s own point is that to render inductive arguments deductive is a useless procedure. We can pass from ‘The kettle has been on the fire for ten minutes’ to ‘So it will be boiling by now’ (Strawson’s example) by way of writing in some such major premise as ‘Whenever kettles have been on the fire for ten minutes, they boil.’ But if our problem is that of justifying induction, then this major premise itself embodies an inductive assertion that stands in need of justification. For the transition, which constitutes the problem has been justified in the passage from minor premise to conclusion only at the cost of reappearing, as question-beggingly as ever, within the major premise. To fall back on some yet more general assertion as a premise . . . would be to embark on a regress, possibly infinite and certainly pointless.” Id. at 487. [S]ince Hume holds in some passages on induction at least that arguments are deductive or defective, we could reasonably expect him to maintain that since factual premises cannot entail moral conclusion . . . there can be no connections between factual statements and moral judgments . . . [H]is remarks on “is” and “ought” are not only liable to receive but have actually received a wrong interpretation. Id. at 488. 51 “What I have so far argued is that Hume himself derives ‘ought’ from ‘is’ in his account of justice. Is he then inconsistent with his own doctrine in that famous passage? Someone might try to save Hume’s consistency by pointing out that the derivation of ‘ought’ from ‘is’ in the section on justice is not an entailment and that all Hume is denying is that ‘is’ statements can entail ‘ought’ statements, and that this is quite correct.” Id. at 492.

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feed the poor not only for pleasant altruistic reasons, but also for practical ones: desperate people do desperate things; therefore, alleviating famine reduces the likelihood of being attacked or robbed. Positive reasons exist as well. By aiding the victims of famine, their descendants may be more favourable to our descendants. Of course, humanity also provides a practical justification to explain why the fact of famine implies the act of feeding. We are social animals, we are not cannibals, and part of what separates us from sharks is the fact that we have compassion for the weak. The practical measure of morality is the survival of our species. That seems more or less self evident and is an objective good. For Hume and Kelsen, the difference between “is” and “ought” is ineluctable and essential. Hume presents this dualistic difference as a postulate: he does not seek to prove the existence of that difference; he sees it as fundamental (i. e., axiomatic). Hume thus does not raise or refute the idea that “ought” statements might also be fact-an alternative possibility this chapter presents. The idea that Hume’s “law” holds that statements of “is” and “ought” are fundamentally different and that the one cannot be derived from the other is an interpolation of Hume based on a presumption that he did not necessarily make. It is certainly not the only possible interpretation of Hume.52 Further, Hume’s dualism is not a necessary (i. e., inevitable, position, and generates theoretical inconsistency). Moreover, courts infer from facts to norms (induction)53 and from norms to facts (deduction) all the time. 52 See, e. g., Barbara Winters, Hume on Reason, in I Hume Stud. 229, 234 (1979), available at: http://departments.oxy.edu/philosophy/hs/issues/v5n1/winters/ winters-v5n1.pdf. “[Hume] is arguing that if reason is viewed on the traditional conception, then reason does not determine us to have beliefs, e. g. about the unobserved. However, he does not stop with this result. Hume is trying to give an account of human nature based on an examination of how we in fact operate, and when he investigates the processes that go on in us in coming to believe things, he comes to a discovery that we do reason to our beliefs, but what goes on when we reason is not what was traditionally thought to occur. His empirical investigation, then, results in a different understanding of what reason is like, and when reason is viewed according to his interpretation it can be seen that in making the transition from the observed to the unobserved we are reasoning and inferring. I see Hume, then, as rejecting reason under one conception as inoperative in human affairs, but arguing that if conceived in another way, reason does cause belief and influence action. This interpretation, which I develop below, will resolve the paradoxes and explain the inconsistency between Book I and Books II and III.” 53 “Under stare decisis, contrary to Hume’s law, courts may indeed derive, to some extent, an ‘ought’ from an ‘is,’ as the mere fact that cases were decided in a certain manner in the past lends normative force toward deciding like cases in a like manner in the future.” Steven Hetcher, Non-Utilitarian Negligence Norms and the Reasonable Person Standard, 54 Vand. L. Rev. 863, 866 (2001).

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Those who read Hume as arguing that “ought” can never be deduced54 from “is” overstate Hume.55 He does not say that the derivation of “ought” from “is” is impossible.56 He does not say there is no connection between “is” and “ought”. Hume says that whoever wishes to make the transition from “is” to “ought” must explicitly enumerate exactly how they make that transition.57 In other words, Hume presents a prudential council:58 it is wise 54

In fact Hume criticizes deduction because what is taken for causal may only be – perhaps even can only be – coincidence: “I have found that such an object has always been attended with such an effect, and I foresee that other objects, which are, in appearance, similar, will be attended with similar effects. I shall allow, if you please, that the one proposition may justly be inferred from the other; I know in fact, that it always is inferred. However, if you insist that the inference is made by a chain of reasoning, I desire you to produce that reasoning.” 4 David Hume, The Philosophical Works 30 (Green & Grose eds., Scientia Verlag 1964). “All inferences from experience therefore, are effects of custom, not of reasoning.” Id. “All our reasonings concerning matter of fact are founded on a species of Analogy, which leads us to expect from any cause the same events, which we have observed to result from similar causes. Where the causes are entirely similar, the analogy is perfect, and the inference, drawn from it, is regarded as certain and conclusive: nor does any man ever entertain a doubt, where he sees a piece of iron, that it will have weight and cohesion of parts; as in all other instances, which have ever fallen under his observation. However, where the objects have not so exact a similarity, the analogy is less perfect and the inference is less conclusive; though it still has some force, in proportion to the degree of similarity.” Id. at 85. “[M]en, learn many things from experience and infer, that the same events will always follow from the same causes.” Id. 55 For example, “the standard interpretation of this passage takes Hume to be asserting here that no set of nonmoral premises can entail a moral conclusion. It is further concluded that Hume therefore is a prime opponent of what Prior had called ‘the attempt to find a foundation for morality that is not already moral.’ Hume becomes, in this light, an exponent of the autonomy of morality and in this at least akin to Kant. In this paper, I want to show that this interpretation is inadequate and misleading.” MacIntyre, supra, n. 41 at 486. 56 Falk noted: “[Hume] denies the deductibility of the latter from the former, as the ‘ought’ expresses ‘a new relation or affirmation’, ‘entirely different from the others’. And this is commonly taken as saying that the ought statement is ‘different’ and nondeducible, because it is no longer a ‘purely factual statement,’ to wit one that makes another ordinarily testable truth claim. However, recent criticism, by W.D. Hudson and others, points out that Hume says other things seemingly inconsistent with this . . . How is one to understand Hume so as to save him here from incoherence? It is said by Antony Flew that Hume really meant that moral statements, rather than being about attitudes, serve to express them. The real Hume was the ancestor of noncognitivism and the ‘is-ought’ passage its early charter. By contrast, it is said by Alasdair MacIntyre that really Hume did not mean to deny deducibility. When he said that it ‘seemed inconceivable’, he meant that it only seemed so without really being so” Falk, supra, n. 40 at 551. 57 “Hume’s point . . . is not to deny that merit is cognitively derived from fact but to make sure that this derivation is not mistaken for deduction.” Id. at 562.

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for a philosopher to explicitly show the connection between his normative and factual statements,59 as this clarifies thinking both for the philosopher and his audience. Thus, Hume’s “law” is not a “law.” It appears, on closer examination, to be a mere prudential council. However, a critical examination will also show that Hume’s “law” is in fact a trap for the unwary.60 Hume does not say that moral values do not exist or cannot be cognized. Rather, Hume’s critique is a much more subtle.61 Hume challenges all who wish to present moral choices as objective values to explicitly do so. In other words, Hume merely and properly places the burden of proof upon the movant to show that moral values exist objectively as fact. As he presupposes a fundamental difference between “is” and “ought,” this burden of proof cannot in fact be met, at least not within Hume’s dualistic universe.62 The only way out of Hume’s trap is to recognize it as dualism63 and reject the presumption of 58 “Hume . . . in the celebrated passage does not mention entailment. What he does is to ask how and if moral rules may be inferred from factual statements, and in the rest of Book III of the Treatise he provides an answer to his own question.” MacIntyre, supra, n. 41 at 493. 59 “[I]n all reasonings from experience, there is a step taken by the mind, which is not supported by any argument or process of understanding.” Hume, The Philosophical Works, supra. 60 “[O]ur willingness to accept the normative conception of ethics is so deeply embedded that, when someone such as Hume challenges it, we take the challenge as a classic defense. (I-O) is not the foundation of normative ethics but its death warrant. Perhaps the shock value of this revelation will lead us to reconsider what might be the most important issue in twentieth-century philosophy.” Hudson, supra at 508. 61 “Hume’s attitude to induction is much more complex than appears in his more skeptical moments and is therefore liable to misinterpretation – his remarks on ‘is’ and ‘ought’ are not only liable to receive but have actually received a wrong interpretation.” MacIntyre, supra n. 41 at 488. 62 “Hume observes, that the good divides from the true. The standard for the latter is ‘eternal and inflexible’ in being; founded on ‘the nature of things’; while that for the former is variable, in depending on ‘the internal frame and constitution of animals’.” Falk, supra n. 40 at 565. 63 “In short, Hume is rejecting any normative conception of morals.” Capaldi, supra note 39, at 134. Is that statement circular? If normativity and morality are synonyms, then it is. Hume has been accused by recent scholars of equivocation. A view upholding a univocal reading of such terms, then attributes to Hume the position that we reason to and infer such beliefs, that such transitions are ones of reasoning, but that reason doesn’t produce the beliefs. And it must hold that, despite the fact that Hume concludes that animals have reason from the fact that they make some of the same inferences that we do, he believes that in the human realm such examples of reasoning are not produced by reason. It must claim that whatever faculty is, which Hume thinks reasons and infers, it is not reason.” Winters, supra, at 233.

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dualism. It seems to me that Hume has not proven the existence of “is” versus “ought,” but rather presumes it. Therefore, just as Hume can rightly insist that the practical syllogism be founded on explicitly declared presumptions, we can also insist that Hume prove his dualist position: that there is a fundamental insurmountable difference between “is” and “ought” statements. I argue that any “ought” statement can be recast as a conditional “is” statement. From a monist perspective, moral statements are simply statements of facts – another “is” statement.64 For example, just as it is a fact that the sun rises, it is also a fact that certain persons believe that others ought not to kill. Dualism runs throughout Western thought and is at the root of alienation, division, separation, and suffering. Plato’s “mind” (eidos) “matter” (hule) distinction may be the first recorded example of dualism in Western thought. It is not the last. Plato essentially presumes the existence of the eidos as a postulate and never proves it, much as Hume assumes a dualism, which he does not prove.65 In fact, Plato’s dualism cannot be proven, as material objects would not be the measure of proof of mental forms. Thus, Platonic formalism does not admit to proof by materialist standards of science. Christianity makes a similar god/man duality. We also see dualism in Descartes, who separates mind and body, human and animal.

III. Conclusion This chapter has tried to prove two basic points: (1) Late modernity presumes that positive law and natural law are mutually exclusive, dichotomous opposites. This is probably due to conflating natural law as God’s law (Gottesrecht) with natural law as the law of reason (Vernunftrecht). Aristotle and Hobbes both make clear, positivism and natural law play complementary roles in the legal system. It is not “either positivism or natural law” it is “both positivism and natural law” (Vernunftrecht). 64 Hume is a materialist: “How does Hume defend his view of the derivation of morality from interest? By appeal to the facts. How do we in fact induce someone to do what is just? How do we in fact justify actions on our own part? In observing what answers we have to give to questions like these, Hume believes that his analysis is justified.” MacIntyre, supra note 41, at 491. But, unfortunately, Hume is also a dualist. ‘All reasonings may be divided into two kinds, namely demonstrative reasoning, or that concerning relations of ideas, and moral reasoning, or that concerning matter of fact and existence.’ Hume, The Philosophical Works, supra. It is his dualism that leads to his trouble with moral statements as fact. It sets him up for dichotomies like ‘ideas’ versus ‘impressions’ and of course ‘is’ and ‘ought’.” 65 Hume, The Philosophical Works, supra at 31.

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(2) The arguments from Hume, taken up by Weber and applied by Kelsen, that normative inferencing be impossible, are erroneous due to a false dichotomy of “is” and “ought”. Late modern arguments against normative inferencing overstate Hume’s position. These false dichotomies are one of the reasons contemporary legal thought fails to present a coherent and incisive understanding of law and justice and their relationship to each other. Just overcoming this blind spot in contemporary legal thought would represent progress for legal science.

Chapter 5

Modernity: Social Contract and Natural Law The previous chapters have indicated a conceptual rupture and breakdown in Western, especially American, legal thinking during late modernity. Contradictory tendencies in liberal theory of the state indicate that something is seriously amiss in the contemporary conceptualization of the state and its relationship to the citizenry. This chapter deepens the exposure of contradictions in late modern liberal theory of the state by considering four further contradictions in western liberal theory of the state. First: Social contract liberalism is the foundational theory of Western liberal democracies. Paradoxically however, the presumptions of social contract theory are completely unrealistic and do not correspond to the facts. There never was a state of nature nor any social contract nor could such ever exist or ever have existed because people are inherently social due to their inability to survive and reproduce in isolation. Yet, despite the fact that the presumptions of social contract liberalism are impossible, social contract liberalism is essentially unquestioned as the foundational myth of Western liberal democracies. Second: Natural law theories1 have, with the exception of Germany,2 been nearly universally – and wrongly – rejected throughout the Western world since about 1900 due to a false dichotomy of “either positivism or natural law”.3 1 “Blackstone thought that anything that is properly thought of as human law is in accordance with the law of nature, which is dictated by God and ‘is binding over all the globe, in all countries, and at all times.’ A judge’s task, thought Blackstone, is to ascertain what this law is and to apply it to the case before him. Judges in no sense make the law. Bentham, on the other hand, maintained that a good deal of law is in fact made by judges, though he thought that it should not be. All law that regulates the behavior of man in society, he held, is of human creation, and it should all be made by the legislature in accordance with the principle of utility. So according to Bentham, too, judges are to find the law-in legislative enactments only-and not make it.” Theodore Benditt, Law as Rule and Principle, The Harvester Press (1978). 2 German Constitution, Art. 1 (1) “Human dignity is inviolable”; “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” Art. 1 (2). “Care and education of children is the natural right of parents” Art. 6.

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Third: Although the West in late modernity has rejected natural law and embraced positivism4 it has not rejected individual rights – even though individual rights ultimately grew from jus naturalist concepts of the rule of law and rights. Fourth: Out of this constellation the basic contradiction in Western constitutional theory appears: the idea of a social contract presupposes individual rights and the rule of law. Individual rights and the rule of law, in turn, are based on the idea of natural inherent and inalienable rights – natural law. Late modernity has wrongly rejected the idea of natural law, even though some theories of natural law are perfectly tenable; at the same time, late modernity has not rejected the idea of social contract, even though it is an untenable and counterfactual theory. These contradictions reveal a curious paradox. A counterfactual mythic social contract has been embraced by liberal democracy because social contract theory is individualist and centred on rights; yet, at the same time, the tenable foundation of that social contract myth and individual rights, ius naturalism, has, wrongly, been rejected by late modernity. How did the West in late modernity wind up in such a contradictory situation – still embracing, as exemplified in the work of Nozick, Dworkin, and Rawls, an unrealistic and counterfactual theory of social contract whilst at the same time ignoring Aristotle, Cicero5 and Hobbes on natural law? How did the west manage to maintain the idea of individual rights and the rule of law in the face of pervasive relativistic identity politics challenges? I argue that a historical accident enabled social contract theory to come into being and subsist despite its counterfactual character. The rise of an 3 “The idea of a natural law derives from Antiquity, but the notion of positive law was developed during the Middle Ages. Exactly when this took place is not known.” Karl Olivecrona, Law as Fact, London: Stevens & Sons (1977), p. 7. Though in fact Aristotle argues that there are both conventional and natural laws (international law, for example). See Aristotle, Politics Book V. 4 “The notion of positive law presented no great problem. Grotius is very brief on this point. The ius voluntarium is so named because its origin is in the will of men or God. The ius civile stems from the will of the sovereign. It consists of the sovereign’s prohibitions and precepts. Its duration is dependent on his will. Pufendorf is more explicit. Every positive law is grounded on the authority of a superior. Human positive law consists of the commands of the sovereign. It is, indeed, nothing but his will through, which he prescribes how the subjects are to act.” Karl Olivecrona, Law as Fact, London: Stevens & Sons (1977), p. 9. 5 “[Cicero’s] Stoic natural law contains the position that humanity originally lived in a state of freedom and equality” Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 842.

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individualistic class of merchant capitalists replacing a class of often idle aristocrats created conditions, which would favour an individualist theory of business dealing (a contract is a contract . . .) as the foundation of the state. At the same time, natural law was rejected due to a misplaced belief that natural law was somehow pre-scientific either because of being a religious theory (God’s law – Gottesrecht) or because of a belief in objective moral values or because of an erroneous belief of a dualistic relation between description and prescription with no possible inferential linkage between them (no is-to-ought – supposedly). It is in fact possible to infer norms and the is-ought distinction is a blind alley.6 Late modernity failed to spot the contradiction between rejecting natural law on the one hand and embracing social contract theory on the other because late modernity, as seen in some currents of new stream theory,7 no longer seeks to run to ground basic presuppositions about the nature of man; thanks to relativism, some in late modernity (notably postmodernists) no longer believe in objective answers. However, as far as late modern thought is concerned, its erroneous relativisation of morality and even knowledge itself do not undermine individual rights. Instead, identity politics replaces objective knowledge as the forefront of socio-political interaction. Rather than ending oppression, identity politics isolates critical discourse end strips it of objectivity resulting in an inability to adequately describe and change reality and a paralysis of practical action. In sum, I argue that individual rights must be understood in their social context, which includes recognizing collective duties. Social contract reasoning, not natural law, should be rejected as a myth. Contextualizing individual rights in their collective context, rejecting the social contract myth, and accepting the complementary relationship between natural law and positivism together reinvigorate the idea of social solidarity leading to greater respect for human dignity and attainment of human potential.

6 See, Eric Engle, Knight’s Gambit to Fool’s Mate: Beyond Legal Realism, 41 Val. U.L. Rev. 1633, 1638 et seq. (2007). 7 “David Kennedy and Chris Tennant identify ‘a dramatic increase during the past two decades in the volume of scholarly work that aims to rethink the foundations of international law and to respond to recent trends in political, social and legal theory.’ [FN90] They have compiled a thirty-page bibliography of papers that depart from traditional theories of international law, which they refer to as ‘New Stream’ theories. These theories do not constitute a single, cohesive argument; rather, they take a variety of approaches and import concepts from a variety of disciplines.” Philip M. Nichols, Realism, Liberalism, Values, and the World Trade Organization, 25 U. Pa. J. Int’l Econ. L. 725, 747 (2004).

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A. Natural Rights I. Foundation of Natural Law in Intellectual Realism Every legal system that this author has looked at has a religious foundation at its origin.8 The secularisation of law is a relatively recent phenomenon.9 For this reason the roots of human rights are found in natural law thinking. This is affirmed in the idea of natural law as God’s law (divine right),10 expressed as natural reasoning.11 Epistemological realism (noetic idealism) holds that philosophical ideas are real and a priori to their instantiated subjects – that is, the material world is a reflection of thought, according to Epistemological realism. Epistemological realism is most often linked to religious perspectives. Its origins date back to Plato12 (and by extension to Neo-Platonists13). A conceptual continuity – God, law, justice and reason – unum, bonum, verum14 – explains the unity of the system of thought but also the polysemy of the term natural law”.15 Some theories of natural law can be criticized as tautological,16 presupposing that, which is to be proven. So, jus naturalist thinking has largely been replaced by positivist theories, and also because one can criticize the inegalitarian nature of one particular theory of natural law as “God’s own law” (Gottesrecht).17 8 “L’idée de loi naturelle implique l’existence d’une règle de justice immuable, inscrite dans l’Univers à laquelle, indépendamment des lois positives, antérieurement ou parallèlement aux conventions civiles, les hommes doivent, dans leurs rapports réciproques, se conformer.” Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 40. 9 Voire par exemple, Robert Graves The Greek Myths. Londres: Editions Pinguin (1964). 10 “. . . un idéal de justice universal et immuable” Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 41. 11 “. . . raison est fondée sur la loi naturelle” Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 65. 12 Plato, Republic, Livre III 402–403; Livre V, 472–483; Livres VI-VII 500–517; Livres IX-X, 389–599. 13 Plotin, Énnéades, http://plotin.lotophages.org/. 14 Microsoft, Encarta, “Transcendentalism” available at: http://encarta.msn.com/ 15 Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 40. 16 “Le droit naturel est l’idée d’un droit qui respecte une règle de nature.” Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 41. 17 “Le droit des anciens est inégalitaire . . . Le droit naturel moderne ne peut donc s’enraciner dans le droit naturel classique.” Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 46.

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Although natural law thinking has been rejected by contemporary positivism due to its metaphysical character, natural law thought continued to influence western legal thinking at least up to the industrial revolution. In fact, jus naturalism is the cornerstone of the liberal democracies as it is the basis of individual rights and the rule of law. Jus naturalism is closely linked to the idea of a “social contract” – that the citizens have a certain number of rights by nature, which they then alienate to form the body politic.18 Individual rights and the rule of law grew from the idea of natural law and in turn are logically necessary preconditions to the (in all events mythical) social contract. In fact, there are several different theories of natural law – for example, the law of the jungle, the law of reason (Vernunftrecht) the law of nature (Naturrecht) or God’s own law (Gottesrecht). That is partly because the concept is so old, literally thousands of years old in fact; the development of natural law has been as answers to social, historical and technological changes. Thus, one should distinguish between natural law and natural justice.19 Natural law is simply the consequence of physical conditions – in other words, the law of the strongest.20 This view is at the basis of the thinking of Hobbes. Another perspective, whether complementary or contrary, is to consider natural justice: natural justice holds that each unjust law is illegal to the extent it is unfair.21 The descriptive theory (natural law) is the idea of the law of the strongest. The prescriptive theory (natural justice) is that the legal system must be fair, otherwise it risks being overthrown by the operation of natural law – that is to say, the right of the strongest. Unfair laws garner no support and merit no support. As can be seen from that fact this theory of natural law and justice holds true to the real world, unlike social contract theory. Despite the ambiguity of the term natural law – or perhaps because of it – and because natural law thinking has influenced Western legal thought for over 2000 years – natural law theory is highly influential. Natural law has been the foundation of a variety of legal systems, whether based on a 18 Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 72. 19 Hobbes, Leviathan (1660). 20 Id. 21 Aquinas, “Lex Mala, Lex Nulla”; “What of the many deadly, the many pestilential statutes, which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly . . . [T]herefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature’s standard are framed those human laws, which inflict punishment upon the wicked but defend and protect the good.” See, Cicero, “Laws” in: Clarence Morris (ed.), Great Legal Philosophers: Selected Readings in Jurisprudence 51 (1997).

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conceptual ideal of formalist natural justice which exists as a real entity (formalism) or on the basis of religious teleology (Godly law – Gottesrecht) and/or on the basis of the idea of reason as the measure of natural justice (the law of reason – Vernunftrecht). Consequent to the idea of natural law are the ideas of “natural rights” and of the rule of law.22 The idea that there are rights and that men can appeal to them is the basis of social contract theory. Rights theory, also known as rights discourse, is not necessarily linked to a theory of jus naturalis. However, in a purely positivist theory rights discourse would have no hierarchical superiority over legislation and would therefore be heuristically sterile. Indeed, for a positivist, the only law that exists is the law of the strongest – and that may take the form of violence, which can be complex, nuanced and symbolic – such as voting. In a sense positivism is a misnomer: really positive law is merely the idea of the law of the jungle, and conventional law built up on that: that is, positivism is really but a variant within natural law theory. The heuristic and normative vacuity inherent in strictly positivist theories is the main challenge facing contemporary theories of law. The foundation of Western society on the idea of jus naturalis is essentially in contradiction to the positivism that has dominated Western law since the Industrial Revolution. Mathematical representations of reality (and in theory any natural language proposition can be mathematically formalized) are currently (and, I think incorrectly) seen not as descriptions of the real world but rather as purely formal representations: either the representative ideas are seen as only a formalisation or the representations are seen as having only nominal value – because ideas have no existence comparable to material things. That view is correct: the material world is prior to and determinative of ideas and not the other way around. However, mathematical statements can nonetheless be a description of the material world, a reflection of reality, and not a mere formalization or an erroneous projection of rationalisations. The unity between the eternal and perfect idea – Divine force – and inevitable and immutable justice – one theory of natural law – has been correctly rejected since at latest evolution and even as early as the reformation and renaissance. Natural law theory has also been rejected, I think incorrectly, since Hume23 Nietzche,24 and Gödel25 due to epistemological rela22 Definition of L’Etat, http://www.vie-publique.fr/decouverte-institutions/institu tions/approfondissements/qu-est-ce-que-etat-droit.html. 23 David Hume, Treatise of Human Nature (1740). 24 Friedrich Nietzsche, Par-delà le bien et le mal (1886). 25 Kurt Gödel, Sur l’indécidabilité formelle des Principia Mathematica et des systèmes apparentés (1931).

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tivism because the theological version – natural law as God’s own law – is clearly unscientific. However, rejection of one version of natural law due to supernaturalism does not justify rejecting natural right as the law of reason – Vernunftrecht. The dialectic between materialism and idealism appears won by the materialist camp. However, that does not imply pure positivism because a materialist theory of natural law (the law of reason) is possible. Although the Church still defends its founders’ noetic idealism, including their classical pagan forerunners, no jurist today takes up noesis as their model of reasoning – this is a very different situation from 1800. Natural law theory has been largely rejected because some versions of natural law are questionable. Sometimes people argue for natural law tautologically, presupposing what needs to be demonstrated26 leading to an out of hand rejection of all naturalistic reasoning. The presence of ideal elements (philosophical realism resulting from dualism) in the usual principal variants of natural law (God’s law – Gottesrecht – or the law of reason – Vernunftrecht, all too often erroneously linked to dualism) leads to ambiguity as to the exact content of natural law. This polysemy might allow “flexibility” but in fact also implies an apparent indeterminism which contradicts the idea of the existence of truth and morality that natural law theories affirm. In fact, some, but not all, versions of natural law theory are untenable. I advance a monist materialist theory of natural law and justice27 which I regard as at least formally tenable (logically independent, complete, non-contradictory)28 and, in my opinion, empirically testable. Contemporary relativist axiology as well as indeterminist epistemology (Quine,29 Gödel30) tend to further refute most theories of natural law as God’s own law (Gottesrecht), or on the basis of tautology, or due to dualism. However, contemporary axiology or epistemology does not refute natural law as the law of the strongest or natural justice as the law of reason 26 “Le droit naturel est l’idée d’un droit qui respecte une règle de nature.” Barret-Kriegel, Blandine Les droits de L’homme et le droit naturel Paris: PUF (1989), p. 41. 27 Eric Engle, Knight’s Gambit To Fool’s Mate: Beyond Legal Realism, 41 Val. U.L. Rev. 1633, 1638 et seq. (2007). 28 Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 723. 29 W. V. O. Quine, Word and Object (1960). 30 Kurt Gödel: Über formal unentscheidbare Satze der Principia Mathematica und verwandter Systeme, I. Monatshefte Fur Mathematik Und Physik 38, 173–98 (1931), translated in van Heijenoort: From Frege to Godel (Harvard Univ. Press 1971), available at: http://home.ddc.net/ygg/etext/godel.

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(Vernunftrecht). Perhaps surprisingly, the monist materialist theory of natural law and natural right (Vernunftrecht) ultimately reveals itself to be the correct theory because materialism and monism allow one to avoid the failings of dualism whether expressed in religion (“God’s law”) or Platonism and neo Platonism (formalism). If one takes up a position that unifies monism and materialism and rejects dualism and formalism then one is left with a concrete materialist base for natural law reasoning – Cicero’s recta ratio naturae congruens31 (Vernunftrecht). Four Types of Natural Law Natural Law

Equivocal

Lex Naturalis

Jus Naturale

Divine Law Gottesrecht Untenable Unempirical

Tautology Circular Untenable Illogical

Law of the Jungle Droit de plus fort Tenable

Law of Reason Vernunftrecht Tenable

Late modernity’s abandonment of natural law is due in part to the fact that divine theories of natural law are not accurate descriptions of reality and because natural law is often sexist, racist and homophobic. Natural law as God’s law or formalism is out of touch with reality due to dualism (philosophical idealism), a lack of connection to concrete reality. The religious origins of natural law can be justly viewed with scepticism – a defining characteristic of modernity. The metaphysical teleology of jus naturale may well be mythological. Another practical reason for the decline of jus naturale is its affirmation of a single law valid everywhere and always. This assertion is impossible to maintain in today’s complex interdependent world of instant global communication. Jus naturalism also had difficulty adapting to the diversity of laws because diversity of law denies the universality claim of natural law thinking. For all that however, we must remember – natural law and positive law are not contradictory: They are complementary.32 They have different roles and complete each other. I argue for just such a jus naturalism based on monism and materialism. 31 “[E]st quidem vera lex recta ratio, naturae congruens, diffusa in omnis, constans, sempiterna, quae vocet ad officium iubendo, vetando a fraude deterreat . . . [H]uic legi nec obrogari fas est, neque derogari aliquid ex hac licet, neque tota abrogari potest . . .” Marcus Tullius Cicero, De Republica: Scripta Quae Manserunt Omnia 96, bk. III, pt. 22, § 33, 11. 26–32 (K. Ziegler ed., Leipzig 1969) (Bibliotheca Teubneriana fasc. 39). 32 Aristote, Politique, Livre V.

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Despite the criticisms, jus naturalist thought influenced Western legal thought right up until the Industrial Revolution – and then, due to the new machine age of mass communication it fell completely out of fashion after at least 2000 years of worldwide dominance. However, jus naturalism is the foundation of the idea of human rights. Thus, a simple intellectual displacement such as epistemological scepticism (Occam33), moral relativism (Hume34) or supposed normative “neutrality” (Weber35) cannot succeed to negate the idea of natural law and normative inferencing. My position is materialist – our ideas are reflections of material things and not the inverse. Materialism explains why and how hypotheses can be verified – if they are verifiable – by using material facts as evidence. The theoretical origin of the idea of law is found in jus naturalism. Jus naturalism affirms the value of the individual. In spite of the illusion of the collapse of jus naturalism, generator of the idea of individual rights, the ideas of individual rights and the rule of law remain in force as a theoretical source of law and its interpretation. The unstoppable idea, seen already in Sophocles36 and Plato37 that people have the right, even the duty, to disobey unfair laws is the promethean fire of Western civilization. Humans can be the object of duties and the subject of rights: So fundamental human rights can exist; and fundamental human rights should exist because people have inherent value. Some argue that the ideas of inherent human value and of individual rights emerged from Christianity as well as classical Greek scholarship. That may be. In any event, the idea of legality, the rule of law, is probably the most significant contribution of the Roman legal system to the West: the Roman Republic recognized that individuals had legal personality not merely as objects but also as subjects and could hold and exercise or alienate their rights. Ultimately, the idea of individual rights is rooted in jus naturalism: You have inalienable natural rights because of your inherent value as a human being. Legality and individualism, according to a natural law perspective, are the foundations of human rights. The idea of the individual as a subject 33 Boehner, Philotheus, ed. & trans. 1990. William of Ockham: Philosophical Writings. Rev. ed. Indianapolis, Ind.: Hackett. 34 David Hume, A Treatise of Human Nature (1739–1740). 35 Max Weber, Gesammelte Aufsätze zur Wissenschaftslehre, Der Sinn der “Wertfreiheit” der soziologischen und ökonomischen Wissenschaften 489–540. 36 Sophocles, Antigone. Available at: http://classics.mit.edu/Sophocles/antigone.pl.txt. 37 Platon, The Apology of Socrates. Available at: http://classics.mit.edu/Plato/ apology.1b.txt.

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with rights rather than an object owing duties is the foundation of the dominant political theory of modernity – the “social contract”. The virtual disappearance of the idea of duties and its replacement with individual rights also explains why the hyper-individualistic perspective cannot cope with certain social problems. It seems necessary to strike a balance between the idea of individual rights and responsibilities to the community for the welfare of a society and its members.

II. Human Rights Part of the criticism of the theory of “social contract” is an exposition of this criticism of human rights. The idea of human rights is based on natural law theory. However, the idea of fundamental rights is ambiguous and ambivalent for practical reasons, which I expose below. 1. The Central Function of Human Rights is Political Legitimation The main political function of human rights is to legitimate the state. Despite their humanistic teleology, human rights are in practice conservative because they legitimate the positive laws of the state. If the main function of human rights is to legitimate the existing order then human rights are not the best way to bring about basic change. 2. The Idea of Human Rights is Necessarily Ambiguous The ambiguous content of claimed human rights is a major problem. Ambiguity partly follows from the legitimating function that human rights play. Ambiguity also results from the multiplicity of sources of law, conflicting legal theories, and universal terms. Thus, to maximize their strength and legitimacy and to remain ontologically consistent fundamental “principles”, “rights” or “liberties”, whether individual or collective, claim to be universal. a) Universal Terminology is a Source of Ambiguity in Human Rights The universality of the language chosen to define human rights covers a reality so vast that natural rights must be sufficiently vague to cover all possible situations.38 The claim of universality is the connection between 38 Legal ambiguity can lead to administrative abuse due to vague terms for example. Martinez, J. C. et Lamarque, J. (Auteurs et rédacteurs), 1789–1989 La Révolution Fiscale à Refaire. Paris: LITEC (1986), p. 133.

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jus naturale and human rights. Universalisation legitimizes the expansion of the human rights based system as a kind of political messianism. Examples of political messianism justified by universalist ideology are numerous: fascism, communism and various religions have all tried – each in their own way – to impose a universalist ideology as a panacea to the problems of human life with varying degrees of success and violence. Liberalism claims to be able to resolve the problems of competing and conflicting human wills and interests without violence via property and a system based on consent. Following these observations, it can be argued that the fundamental value of Western societies is not necessarily democracy but rather individual rights, especially the right of property. History shows us that democracy has been a much less stable value in the west than individual rights. However, individual rights are one of the preconditions of democracy. Thus, we can assume that the idea of individual value and the rule of law are the fundamental Western values – “democracy” is a consequence of those values, not their cause. b) The Multiplicity of Theoretical Sources of Law is the Source of the Ambiguity Inherent in Human Rights The legal ambiguity in rights discourse arises due to a multiplicity of theoretical sources of rights. The latter are either a nominalist expression of humanist principles (Rousseau), or a philosophical idealism (Plato) or, finally, an expression of theological vision (Thomas Aquinas) though in fact the most defensible view of natural right is materialist (Aristotle). c) The Multiplicity of Legal Sources is also at the Root of the Ambiguity of Human Rights Ambiguity of the content and contours of rights is also a consequence of their differing legal sources in a) constitutional declarations and b) general principles of law as well as c) ordinary laws. Sources of law can be either i) explicit (written) or ii) implicit (unwritten). Typically, the U.S. Constitution is considered a written source of rights, whereas the Constitution of the United Kingdom is usually considered an unwritten source of rights. The ambiguities in the design and definition of human rights lead to the need for interpretation in order to give more certainty to them. The interpretations of the content of rights can be nuanced and flexible precisely because of that ambiguity – but also ambivalent, for the same reasons. Attempts to resolve this ambiguity lead to questions such as the legal auton-

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omy of a branch of continental law, and the distinction between policy issues and laws.39 Legal issues are universal in time and space while political issues are cyclical and local. Thus, I compare these ambiguities in order to show the malleable nature of the system, which is inherent in Western legal systems based on vague ideas such as “freedom” and “equality”. d) The Quest for Political Legitimacy based on Human Rights is Unworkable because of the Ambiguity Inherent in the Idea of Human Rights Contradictions between legitimation, ambiguity and democratic input create tensions within the concept of human rights. Rights must be expressed in universal terms to obtain the maximum consent and thus legitimation. However, universality of legitimation leads to terminological ambiguity. Thus, to be implemented, universal values must be interpreted by judges – representatives of an institution that is not necessarily democratic. The liberal state and its Judges claims to be and to want to be objective and predictable, but in fact judicial activism is at times unpredictable and/or volontarist. Tensions resulting from this contradiction can be illustrated by the classic example of conflict between “freedom” and “equality” in the area of tax law. These criticisms, which refer to human rights, also apply to social contract theory – the centre of modern and late modern political theory (Hobbes, Rousseau, Lock, Nozick, Rawls, Dworkin).

B. Social Contract Theory Jus naturalist theory proposes that any law – in order to be valid – must comply first with a timeless and universal justice. This theory is most often seen as an expression of Platonic idealism (epistemological realism),40 which proposes intentional entities such as liberty, equality, etc. However, it is also possible to have a materialist jus naturalism, which is my position. Jus naturalism is the theoretical source at the origin of the idea of individual rights and is the ultimate foundation of human rights discourse.41 The 39 “. . . distinction entre les deux aspects, politique et juridique du principe”, Jean Lamarque Droit Fiscal Général. Paris: LITEC: Les Cours de Droit (1994), p. 426. 40 Eric Heinze, The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory, Canadian Journal of Law and Jurisprudence, Vol. 20, No. 2, 2007. 41 “Natural Rights” The Columbia Encyclopedia, Sixth Edition. 2001–05. http:// www.bartleby.com/65/na/.

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idea of individual rights also engenders the right to form or dissolve the government.42 The theory that the government is at the will of the governed, the principle of government by consent,43 is the essence of the mythical social contract.44 The central role of individual rights in the liberal democracies explains in part their inability to properly recognize, address and overcome the obvious limitations of social contract theory. In order to understand social contract theory we will first examine the presuppositions of the so-called state of nature45 and then the idea of a ‘social contract’ fashioned to escape from that fictitious state, which never existed nor could exist. The social contract is nothing but an after the fact myth and is not a coherent or accurate description of reality.46 In spite of that, the idea has profoundly influenced liberal Western thought.

I. The State of Nature What are the origins of the state? This basic question is an integral part of the problem of social contract theorists such as Hobbes,47 Rousseau,48 and Locke.49 Social contract theories presuppose an anarchic origin of the state. According to them, once upon a time man lived without authority, in a natural state. In this state, man was, supposedly, self-sufficient and thus autonomous. For Hobbes and to a lesser extent Rousseau the absence of State relations reduced people to the law of the jungle. Indeed, the rule of law could not exist in a state of nature. 42 John Locke, The Second Treatise of Civil Government (1690), CHAP. XIX. “Of the Dissolution of Government.” Section 222, http://www.constitution.org/jl/ 2ndtr19.txt; Philip Kurland, Ralph Lerner (eds.), The Founders’ Constitution, Volume 1, Chapter 3, Introduction Chicago: The University of Chicago Press (2005), http://press-pubs.uchicago.edu/founders/documents/v1ch3I.html. 43 Rousseau, Du Contrat Social, Ch. 2.7. 44 Rousseau, Du Contrat Social, Ch. 1.6. 45 Rousseau, Du Contrat Social, Ch. 1.6. (“Je suppose les hommes parvenus à ce point où les obstacles qui nuisent à leur conservation dans l’état de nature l’emportent, par leur résistance, sur les forces que chaque individu peut employer pour se maintenir dans cet état. Alors cet état primitif ne peut plus subsister; et le genre humain périrait s’il ne changeait de manière d’être.”). 46 Voir par exemple, Eric Palmer, Multinational Corporations and the Social Contract, 31 Journal of Business Ethics 3, 245–258 (2001). (“The historical social contract is, however, a. fiction”). 47 Thomas Hobbes, Leviathan, Ch. XVII (1660). http://www.gutenberg.org/etext/ 3207. 48 Jean Jacques Rousseau, Du Contrat Social (1762). 49 John Locke, Second Treatise of Government (1690). http://www.constitution. org/jl/2ndtreat.htm.

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II. The Social Contract Social contract theory postulates, basically, that everyone in the state of nature is the absolute ruler of his own person and whatever he can secure. However, in order to avoid insecurity and protect each other, people chose to abandon their natural right to war in order together to form a society based on a contract – either a mutual contract or with a ruler, depending on the theory. The force of attraction of the theory of the social contract is its affirmation of a principle of government by consent – even though such consent is only hypothetical, tacit or virtual. One strength of social contract theory is the idea of the right to resistance, derived from the principle of consent, which is found briefly and implicitly in Hobbes but openly in Locke. This principle of consent50 – although badly respected51– is nevertheless a fundamental principle of French and international law, recognized in the declaration of rights of man of 1789.52 Despite this, we can raise some problematic points in the theory of the social contract: (1) The contract is unequal- the citizen alienates all their rights for one sole consideration, physical security. (2) This alienation also affects future generations. (3) This alienation is in fact fictitious. On a theoretical level, the social contract is an expression of the idea of government by consent and affirms the value of the individual. This cohesion between individualism and the construction of social contract ensures the continuity of the idea of consent, despite possible fluctuations, which threaten the idea of democracy. Thus, it appears that the social contract has a fairly solid foundation, despite being out of touch with reality. In practical terms, a combination of factors led to the success of the theory of social contract: (1) A decrease of the political strength of the Church. 50 Some admit it to be a myth. Lucien Mehl, Le Principe du Consentement à l’impôt et autres prélèvements obligatoires: Mythe et Réalité. Rev. Fr. Fin. Pub. Nº 51, 1995 P. 65. 51 Pierre Beltrame, Le Consentement de l’impôt: Devenir d’un grande principe. Rev. Fr. Fin. Pub. Nº 51, 1995 P. 81, 82. 52 “Le principe (de portée constitutionnelle) de légalité de l’impôt se fonde dans la nécessité de consentement à l’impôt Art. 14 de la Déclaration des droits.” Michel Bouvier, Introduction au droit fiscal et à la théorie de l’impôt. Paris: LGDJ (2d Edition) (1998), p. 40.

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(2) The decline of the aristocracy and the rise of the bourgeois class. (3) The increase in economic exchanges (the transition to capitalism). All these factors led to a questioning of the theory of divine right of kings. The consent of the bourgeois class was necessary for the proper functioning of commercial kingdoms like England and the Netherlands rather than hereditary aristocratic privilege. Moreover, it appeared that the abdication of a fictitious right to rebellion would not threaten the regime. Thus, this abdication of power by the people and the transfer of these powers to the state – by the fiction of a social contract – was generally perceived as irrevocable (otherwise the threat of a popular revolution would not be “exorcised”)53 Even where it is recognized – which is very rare – the right of rebellion against a tyrant must be strictly circumscribed by a principle of strict necessity, and depending on the proportionality of acts of resistance to acts of oppression. However, few legal systems dare admit the practical reality that their existence depends on the whim of their subjects. The social contract is thus based on the idea that individuals have fundamental rights and that these rights are fungible. The body politic is formed, according to this theory, by alienation of freedoms in an absolute state of nature. Thus, the theory of the social contract is a logical consequence of the idea of natural rights. The government is formed from the consent of the governed – and so the people should have the right to dissolve the government they formed. Social contract theory is the basis of liberal regimes like England (Hobbes, Locke), and the USA (Jefferson,54 Hamilton,55 Madison)56 and France (Rousseau, Diderot,57 Montesquieu58). Its persuasive53 “On se demande si le peuple . . . peut se soustraire à l’autorité d’un tyran qui . . . épuiserait ses sujets par des impôts excessifs . . .” “Je réponds d’abord à cette question . . . que les peuples ont tout droit de reprendre le souveraineté qu’ils ont confiée à leurs conducteurs, et dont ils abusent excessivement . . . Dès que le tyrannie est extrème, on est en droit d’arracher au tyran le dépôt sacré de la souveraineté . . . Un peuple même qui s’est soumis à une souveraineté absolue, n’a pas pour cela perdu le droit de songer à sa conservation, lorsqu’il se trouve réduit à la dernière misère” Chevalier de Jaucourt, article “Tyrannie”, l’Encyclopédie, Tome XVI, p. 786 (1780); Jean-Claude Martinez, Lettre Ouverte aux Contribuables, Paris: Albin Michel 137 (1985). 54 United States, Declaration of Independence (1776). 55 Alexander Hamilton, Federalist Papers (1787), http://www.gutenberg.org/ etext/1404. 56 James Madison, Federalist Papers (1787), http://www.gutenberg.org/etext/ 1404. 57 “Arithmétique politique”, “Autorité politique”, “Cité”, “Citoyen”, “Droit naturel”, “Hobbisme”, “Irréligieux”, Articles from l’Encyclopédie. http://classiques. uqac.ca/classiques/Diderot_denis/diderot_denis.html. 58 Montesquieu, De l’esprit des lois (1758).

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ness is not to be underestimated. From this perspective, individual rights can be defended as positive rights: individuals have rights because they are strong enough to claim them. This explains how the idea of individual rights – which finds its roots in natural law – could survive the broad rejection of the idea of natural law by positivism during late modernity. The West should not have rejected natural law theory; it should instead have rejected social contract theory and taken up a qualified theory of rights and duties both individual and collective. Individual rights discourse paralyzes political discourse by reducing all problems to identity politics. Focusing on individual negative “freedoms from” rather than positive duties or entitlements (“rights to”) prevents the development of realistic solutions to address social problems like poverty and violence. Rights discourse is fixated on individual rights without considering the duties of individuals among themselves and towards society. This trend in contemporary politics is illustrated by Dworkin,59 Rawls,60 and Nozick.61

C. Contemporary Social Contract Theorists Social contract theory is an attempt to justify the existence of rights and powers of the community. In Anglo-American liberal theory the community is almost always analyzed and constituted from atomist and nominalist presuppositions. However, the state and society can only be properly understood from a holist perspective because the individualist perspective ignores too much of reality and cannot account for synergies resulting from group dynamism. The best-known contemporary supporters of social contract theory are Dworkin, Rawls and Nozick.

I. Ronald Dworkin The preeminent contemporary rights theorist is Ronald Dworkin. Dworkin, contrary to Kelsen, proposes a normative theory.62 However, Dworkin rejects the equivalence between justice and law,63 a constitutive feature of some theories of jus naturalism, and also rejects social contract theory, which he rightly sees as unrealistic.64 Yet, he admits that the positions of 59

Ronald Dworkin, Taking Rights Seriously [Hereinafter: TRS] (1977). A Theory of Justice. Cambridge, Massachusetts: Belknap Press of Harvard University Press, 1971. 61 Nozick, Robert (1974). Anarchy, State, and Utopia. (Basic Books). 62 TRS, 2. 63 Ronald Dworkin, Laws Empire 97 [Hereinafter: LE]. 64 LE, 192. 60

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Rawls are useful to understand the theory of justice.65 Likewise, Dworkin criticizes positivism as it appears in Hart, and defends the idea of fundamental rights,66 which are held by individuals67 and superior to claims of the state but thereby falls into tautology,68 a common fate among natural law theorists. 1. Dworkin on Natural Law and Positivism It is difficult to position Dworkin beyond an Aristotelian and/or Lockean liberalism69 because Dworkin argues that the debate between positivism and natural law, which he describes as a meta-theoretical,70 is purely and simply semantic.71 Consequently, he does not examine many issues with sufficient depth to place him properly. According to Dworkin, naturalism and positivism each use the term “law” in a different sense, resulting in a confused and pointless debate about the term “law”.72 I think Dworkin is mistaken there because nominalism and noetic realism (neo-Platonism) have definite and contradictory views about the relation between ideas and the material world. Furthermore, there are both prescriptive and descriptive views of both positivism and natural law. So Dworkin is wrong – the debate over positivism and naturalism is not simply one of naturalism arguing for a nomothetic view and positivism arguing for a materialist view, nor is it a matter of naturalism being a prescriptive theory and positivism being a purely descriptive one. Epistemologically, positivist theories are usually also relativistic theories; in contrast, theories of natural law are cognitivist and universalist. Most natural law theories are dualistic, arguing for noetic realism, whereas most positivisms are nominalist – but these are contingent, not necessary choices. Dworkin confuses an epistemological debate as to whether ideas have a real existence (eidos) with a semantic debate – the 65

LE, 193. TRS, ix. 67 TRS, ix. 68 “Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposoing some loss or injury upon them. That characterization of right is of course formal in the sense that it does not indicate what rights people hav or guarantee, indeed that they have any. However, it does not suppose that rights have some special metaphysical character”. TRS, xi. 69 Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 181. 70 Ronald Dworkin (ed.), The Philosophy of Law, Oxford: Oxford University Press (1977), R. Dworkin, “Is law a system of rules”. 71 LE, 35, 98. 72 LE, 98. 66

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meaning of the word “law”. According to Aristotle and Hobbes, positivism and natural law play complementary roles – and thus the dichotomous treatment of positivism and naturalism by contemporary law is an error. Dworkin however does not reach Aristotle’s conclusion because he ignores the axiological question of moral relativism versus cognitivism as well as the ontological debate between atomism and holism and so cannot resolve the issues. Dworkin mixes elements of naturalism with elements of positivism without consciously recognizing that he is doing so or the potential contradiction that entails. The result is a confused theory replete with enthymemes, which could however be explicated and resolved were he to note that positivism and natural law play complementary roles. However, as it stands Dworkin’s work is inadequate on several levels. a) Principles and Policies Whether to shore-up social contract theory or to avoid taking up a metaphysical position, about rules,73 Dworkin tries to make the distinction between “principle”74 and “policy”75 central to his theory. ‘Principles’ are, for Dworkin “neutral” and “objective”, the products of the courts. ‘Policies’, in contrast are products of the legislature (he cites Montesquieu here). ‘Principles’ have a privileged position in his theory.76 However, Dworkin fails to explain satisfactorily why the “principles” (“rights”) should have a priority over the “policy”. Worse, his definition of principles77 (“rights”)78 is ambiguous. Dworkin tries to distinguish “principles” 73

Ronald Dworkin, Taking Rights Seriously, London: Duckworth (1977), pp. 14–

80. 74

Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 33. Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 72. 76 Ronald Dworkin (ed.), The Philosophy of Law, Oxford: Oxford University Press (1977), R. Dworkin, “Is law a system of rules?”. 77 “Arguments of policy justify a political decision by showing that the decision advances or protexts some collective goal of the community as a whole. The argument in favor of a subsidy for aircraft manufacturers, that the subsidy will protect national defense, is an argument of policy. Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right. The argument in favor of anti-discrimination statutes, that a minority has a right to equal respect and concern, is an argument of principle. These tow sorts of argument do not exhaust political argument. Sometimes, for example, a political decision, like the decision to allow extra income tax exemptions for the blind, may be defended as an act of public generosity or virtue rather than on grounds of either policy or principle. However, principle and policy are the major grounds of political justification.” Ronald Dworkin, Taking Rights Seriously, 82–83. 75

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as an individual (natural) “right” and “policies” as a collective (positive) obligation.79 But he admits that his distinction is not final because he recognizes the existence of collective rights (“principles”). Given the weakness of his distinction, Dworkin tries to distinguish “policies” and “principles” as, respectively, teleological and axiological criteria. This distinction is reasonable for the first term, but is question begging with regard to the second. The question is not whether a principle is a priori a policy but why – and Dworkin does not seem to answer that last question. Furthermore, the distinction between means and ends becomes unclear precisely in the “hard cases”80 that he seeks to explain. b) Intensive Reiteration to Exhaustion of a Fundamental Principle Dworkin appears to ignore all these subtle points, which tends to show that his thought is too involuted to be even heuristically useful. By intensively reiterating81 the individualist nominalist, liberal, and atomist perspective, Dworkin succeeds only in exhausting it.82 Dworkin fails to address or 78

“I call a ‘policy’ that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the commuinity (though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change). I call a ‘principle’ a standard that is to be observed, not because it will advance or secure an economic, political, or social situation but because it is a requirement of justice or fairness or some other dimension of morality. Thus the standard that autolobile accidents are to be decreased is a policy, and the standard that no man may profit by his own wrong a principle. The distinction can be collapsed by construing a principle as stating a social goal (i. e., the goal of a society in, which no man profits by his own wrong), or by construing a policy as stating a principle (i. e. the principle that the goal the policy embraces is a worthy one) or by adopting the utilitarian thesis that principles of justice are disguised statements of goals (securing the greatest happiness of the greatest number). In some contexts the distinction has uses, which are lost if it is thus collapsed.” Ronald Dworkin, Taking Rights Seriously, pp. 22–23. London: Duckworth (1977). 79 Dworkin, id., p. 82. 80 Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 119. 81 “The transformation of private law thinking was accomplished by the iteration and reiteration of the public/private distinction to differentiate fields within the private domain, and then to further internally differentiate each field. The upshot was a ‘will theory’ within private law, with the will being either the will of the parties or the will of the state.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii. 82 “The irony was that the very success of the enterprise of subsuming all legal relationships under a single small set of concepts eventually destroyed belief that it was the concepts itself that determined the outcomes of their application. When the abstractions had performed their task of integrating legal thought, it became appar-

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resolve, the foundational problems in liberal political theory. Like other materialist atomist nominalist U.S. legal theorists, he has not adequately explained his presuppositions and so cannot properly assess them or those of others. c) The Inductive Deductive Method Dworkin tries to reason by analogical inference, from specific facts to general rules83 due to atomism (analysis from fundamental elements) and nominalism (concepts have no ‘real’ material existence) and the common law (case based reasoning, reasoning by analogy). However, the fundamental rights and general principles Dworkin is trying to protect are general deductive concepts, and thus logically a priori to the specific material facts they govern. The inductive-deductive method,84 which Dworkin does not seem to invoke, would, in my opinion, surmount that difficulty85 but is inconsistent with a strict atomistic and individualistic view.

ent that while pre-Classical particularly had been irrational, the new unity was merely linguistic – a verbal trick – rather than substantive reconstruction. We came gradually to see that there were an infinity of possible results that might all plausibly find expression in the new conceptual language, and, what was worse, might all claim to be derivation of the abstract governing principles. The concepts then could be nothing more than a vocabulary for categorizing, describing and comparing, rather than the elements in a method for deriving outcomes. The famous principles, taken together, appeared either self-contradictory or so vague as to be worthless as guides to particular decisions.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxiii. (cited from p. 251). 83 Dworkin, TRS, p. 82. 84 I. e. the induction of general principles from known facts and then the deduction from those general principles to cover future instances of those facts or different facts (ampliation). Re: Induction, see, Karl Popper, The Problem of Induction (1953, 1974), available at: http://dieoff.org/page126.htm. 85 But see, Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxi. (“The most exotic of the ideas in The Rise and Fall, and perhaps for that reason the idea that has had least resonance, is that of the construction of the legal object. The Rise and Fall argues that the judicial, legislative, commerce and police power was understood as ‘essentially’ the same thing in relation to the federal commerce power that it was in relation to the individual right of property. An individual’s right or property, in turn, was the same thing in relation to legislative power that it was in relation to the property right of another individual. The judicial power was the same whether adjudicating federal vs. state power, legislative power vs. individual right or individual right vs. individual right.”).

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2. Dworkin versus Posner on Law and Economics Dworkin is criticized by Posner, because Dworkin does not understand basic economic principles.86 Dworkin, rightly critiques87 and rejects Posner’s reductionist view of law as economics88 Both are correct: Posner is wrong about justice being a mirror of the economy, just as Dworkin is wrong about basic economics. Their mutual destruction does not however result in a greater social scientific coherence, because neither goes beyond destroying the other’s work to building something new and more credible out of the rubble. 3. Conclusion: A Potentially Powerful Synthesis as yet Undeveloped and Rife with Contradictions Due to Absent Resolution of Conflicting Presuppositions Dworkin’s views could become a powerful synthesis if he were to address the foundations of debates – epistemology, axiology and ontology. Until then, his ideas are really limited to rights discourse. This book addresses rights discourse in detail in the final two chapters delete. Reducing the debate around jus naturalism and positivism to a simple semantic error limits Dworkin to a superficial and unsatisfying analysis. Ultimately, Dworkin ignores his own presuppositions, which prevents him from developing a synthetic theory or philosophy of law.89 Thus, Dworkin does not propose a theoretical framework sufficiently developed to properly identify the issues that lie at the base of social contract theory because he mista86 “Dworkin argues that wealth is not ‘a component of social value’ – not the only component and not even ‘one component of social value among others.’ This may seem a bold challenge to conventional wisdom, which holds that wealth is a value, if not the only or the most important value. However, his argument is actually a play on words, for Dworkin defines a component of social value as ‘something worth having for its own sake,’ and no one values wealth for its own sake. To argue that wealth is not a social value because it is not an end in itself is, however, to adopt an eccentric definition of ‘social value.’ If I say, ‘Loyalty is a social value because it facilitates the organization of productive activity,’ I am not misusing the English language by attaching the term ‘social value’ to a mediate rather than an ultimate goal.” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 108. Dworkin is of course echong Aristotle’s view that wealth is a means to the end of the good life and it is a necessary means to that end. So both Posner and Dworkin are wrong – Dworkin for failing to see that wealth is a necessary means to the end of the good life, and Posner for conflating wealth itself with the good life, i. e. happiness. 87 Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 237. 88 Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 275. 89 TRS xi.

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kenly reduces axiological, epistemological and ontological issues to a simple semantic misunderstanding. As for his method, Dworkin tries to reason by analogical inference from specific facts. This form of reasoning is inherent in Common Law, following the empirical method and the rejection of holism. However, analogical case based reasoning tends to overlook deduction from general principles or formation thereof, so Dworkin’s thinking is not sufficiently developed to present a truly unified heuristic able to account for legal reasoning generally – although analogical case based inductive reasoning dominates the common law, deductive reasoning from legislation and general principles dominates the civil law. Self contradiction and definitional incoherence (Dworkin) as well as blindness to alternatives (Posner) and powerlesness (Kennedy) tend to occur in U.S. legal theory because U.S. legal theorists generally tend not to sufficiently question their own basic assumptions; nor do they compare contrast and critique others basic assumptions, thanks to relativism, streams theory and nominalism.

II. John Rawls 1. The “Original Position” Rawls seeks to answer the Aristotelian questions “what is the good life and how to obtain it?”90 But, unlike Aristotle, Rawls proceeds to try to answer these questions from a social contract perspective.91 The results of mixing incompatible theories are, unsurprisingly, unsatisfying. Rawls is quoted by Dworkin favourably, but sharply (and rightly) criticised by Posner.92 One of Rawls’s central questions is: how should the social choices between different optimal situations be made – situations in, which each of 90

John Rawls, A Theory of Justice Oxford: OUP (1973), p. 424. “. . . a contractarianism rationally deduced from humanity in the state of nature (John Rawls)” Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 Va. L. Rev. 543, 546–547 (1986). 92 Posner critiques both Rawl’s “original position” and the “veil of ignorance” as being unrealistic assumptions. “He [Rawls] assumes that these shades choose principles of justice that will maximize their own utility, and because they are also assumed to be highly risk averse, they choose a principle that trades away much individual economic liberty for social insurance. . . . the optimal degree of equality depends on empirical hunches regarding the size and shape of’ individuals’ marginalutility schedules and the disincentive effects of egalitarian policies. The necessity of making such hunches imparts to Rawls’s theory the same indefiniteness that plagues Bentham’s.” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 59. 91

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the alternatives is roughly equivalent, but, which have differing effects upon different individuals? One of his answers is the formation of the social contract in the “original position” behind the “veil of ignorance”:93 there (supposedly) people ignore their status and identity and have made a joint agreement to govern their relations.94 Rawls tries to define and defend a conception of justice from an original position95 – which is actually simply the state of nature. The justice Rawls is trying to defend is one form of Aristotelian justice – distributive justice.96 But social contract theory is a theory of transactional justice. The inconsistency, resulting from a mishmash of Aristotle and Locke, leads to incoherence. Rawls’s theory is purely formal and does not correspond to the real world. A principle of science is that any description must accord with reality.97 Rawls himself wrote that any statement, which is not true – however “elegant” – must be rejected.98 In this light it is surprising that he defends a theoretical model like the “social contract” which is not in line with objective reality. The theory of Rawls is merely a formal model and not a description of the real world and is pointless because it lacks even heuristic value. Rawls’s objective is to deepen the thinking of the “social contract” by making it even more abstract.99 However, the problem with social contract theory is that it is already an unrealistic abstraction with no real reflection in material reality – rendering it more abstract will not solve that problem and will in fact only worsen it. On this point Hart criticizes Rawls,100 and Rawls admits to weaknesses in his description of reality.101 93 John Rawls, Justice as Fairness, Cambridge: Belknap (2001), p. 85. [Hereinafter: JR2] 94 John Rawls, Justice as Fairness, Cambridge: Belknap (2001), p. 85. 95 John Rawls, Justice as Fairness, Cambridge: Belknap (2001), p. 14, p. 80. 96 John Rawls, A Theory of Justice Oxford: OUP (1973), p. 274. [Hereinafter: JR or R] 97 “A theory, however elegant and economical must be rejected if it is untrue”. John Rawls, A theory of Justice, Cambridge MA: Harvard Univ. Press (1971), p. 3. 98 John Rawls, A theory of Justice, Cambridge MA: Harvard Univ. Press (1971), p. 3. 99 John Rawls, A theory of Justice, Cambridge MA: Harvard Univ. Press (1971), p. 3. 100 Hart critiques Rawls: Rawls on Liberty and Its Priority 40 U. Chi. L. Rev. 534 (Spring 1973); H.L.A. Hart, Essays in Jurisprudence and Philosophy, Oxford: Clarendon (1983), p. 223. 101 John Rawls, “The Basic Liberties and their Priority”. S. McMurrin, Ed. Liberty Equality and Law, “while the grounds I have surveyed for the basic liberties and their priority have been drawn from and develop considerations found in a theory of justice, I failed to bring them together in that work. Furthermore, the grounds I cited for this priority were not sufficient, and in some cases even incompatible with the kind of doctrine I was trying to work out”; JR2, 87.

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Rawls admits that the theory of “Social contract” is open to criticism.102 However, according to Rawls, even though no State was ever formed from a “Social contract”103 – a fact also acknowledged by Rousseau – the social contract model allows us to understand how to set up just institutions. How? According to Rawls, social contract theory also allows us to see that the principles of government formed out of the mythical social contract are those, which we would have found fair were we in the position to negotiate such a contract. Why? Rawls argues that the principles of justice expressed in a “social contract” would be fair if transposed into reality and that those principles can also help us better understand justice itself. However, he appears to be confusing normative and positive statements in a tautological fashion.104 Imagining how something could have happened does not really help establish how in fact it happened, or even how it ought to have happened or happen in future. A presumed foundational justice in the mythical social contract105 supposedly endorses and validates our contemporary real-world institutions. However, that is question begging106 because Rawls never explains exactly why or even really how the mythical historical contract legitimates contemporary political arrangements. The question is not simply whether the institution is just but why – and no myth can offer an adequate response to this question. Arguing that our understanding of justice will help us understand justice107 is question begging and arguing that the justice in the 102

R, 120–121. “It is clear then that the original position is a purely hypothetical situation. Nothing resembling it need ever take place, although we can by deliberately following the constraints it expresses simulate the reflection of the parties. The conception of the original position is not intended to explain human conduct except insofar as it tries to account for our moral judgments and helps to explain our having a sense of justice. . . . So while the conception of the original position is part of the theory of conduct, it does not follow at all that there are actual situations that resemble it. What is necessary is that the principles that would be accepted play the requisite part in our moral reasoning and conduct.” R120–121. 104 R, 5. 105 R, 11. 106 “I have emphasized that this original position is purely hypothetical. It is natural to ask why, if this agreement is never actually entered into, we should take any interest in these principles, moral or otherwise. The answer is that the conditions embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do by philosophical reflection.” R, 21. 107 “I have emphasized that this original position is purely hypothetical. It is natural to ask why, if this agreement is never actually entered into, we should take any interest in these principles, moral or otherwise. The answer is that the conditions 103

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mythological foundation108 of the state justifies the contemporary state is tautological. Rawls’s proposes that justice is the product of a social contract109 and so his theory should be seen as a theory of natural justice because he presupposes that human beings have a common conception of justice (even as he qualifies this universality by an admission of the diversity of definitions of justice).110 In other words, even if laws are not universal, the idea of justice is. Rawls is intuitionist in his ontology, and believes in “natural duties”111 and an innate sense of justice,112 but otherwise contradicts Aristotle, which will be discussed, infra. Rawls’s assertions about an innate sense of justice, though mere intuitions, are not as such problematic; intuitionism is also found in Aristotle and is a first step in the scientific process: the researcher always makes assumptions: hypotheses and postulates are part of science. However, hypotheses must be verified through subsequent experimentation and when falsified by reality hypotheses must be rejected, scientifically speaking. Rawls does not do that. For example, in Adam Smith’s theory – and like Smith and Posner, Rawls assumes, optimistically, that economic actors are rational113 – market transactions occur not because of common goals but rather through the balance of supply and demand. Smith’s market descriptions are based on reality and not a fictitious construction or a rationalization to explain how the reality might have been. Smith does not say that there is an “invisible hand”, or that the invisible hand is a good way to explain the economy. He said that the market operates as if an invisible hand toward the welfare common because of the fact that each individual seeks their own well being. The sum of individual transactions for the welfare of individuals leads to social welfare and employment. The metaphor of the invisible hand is used by Smith as a simple shortcut or a reference to represent the multiplicative relationship follows: embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do by philosophical reflection.” R, 21. 108 R, 11. 109 R, 11. 110 “Men disagree about, which principles should definethe basic terms of their association. Yet we may still say, despite this disagreement, that they each have a conception of justice.” John Rawls, A theory of Justice, Cambridge MA: Harvard Univ. Press (1971), p. 5. 111 R, 114. 112 John Rawls, A theory of Justice, Cambridge MA: Harvard Univ. Press (1971), pp. 4–5. 113 John Rawls, A Theory of Justice Oxford: OUP (1973), p. 142.

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P = T1 * T2 * T3 . . . * Tn

As contrasted to an additive relationship: P = T + 1 T2 + T3 . . . + Tn.

– Where P is the productive power, and T (1 . . . n) the number of workers in collaboration. 2. Rawls and the School of “Public Choice” Rawls seeks to solve the problem of choice between aggregate equivalents that are nevertheless different at the individual level. We can see in his analytical approach elements, which are consistent with theories of the School of “public choice” (see Buchanan114 and Musgrave115). However, the pragmatic realism of Buchanan resulting in a rigorous descriptive methodology is not as present in Rawls’s more general but less accurate theory. The generality of Rawls’s theory may partly explain its incapability to accurately describe reality – yet another example of a failed effort at creating a unified general theory, a common theme of the second half of the 20th century. 3. Rawls Contrasted with Aristotle a) Origin of the State Rawls attempts to combine Aristotelian moral theory with social contract state theory. The result is at least tension if not outright self contradiction.116 Rawls does not seem to notice that Aristotle’s theory of the origin of the state is completely different from social contract theory. Nor does he try to break from or synthesize Aristotle and social contract theory (Hobbes, Locke, Rousseau).117 114

R, 266. R, 275, R, 279. 116 R, 7. 117 “If we move from moral theory to political theory, the most salient method we find is the idea of the social contract. The most important sources for the American tradition are Thomas Hobbes, John Locke, and John Rawls. Hobbes and Locke start from the premise that individuals are self-interested. They then ask why they might nonetheless agree to obey government. They do so to protect themselves from each other and to create rules of the game that ensure the ability to live together in peace and harmony. By sacrificing some of their liberty, they obtain greater liberty than they could have ever known in the state of nature. John Rawls updates this view by introducing the idea of an ideal setting for the social contract. Instead of imagining individuals bargaining in a state of nature where they are at 115

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b) Human Inequality As to Aristotle’s view on natural inequality, Rawls recognizes that there are stochastic inequalities that are natural but unjust. However, for Aristotle, those inequalities are perfectly natural and just. For Rawls, private property is also contradictory:118 on the one hand, it guarantees justice, but on the other it implies both the possibility and the necessity of income redistribution to ensure minimum living standards and to prevent oligarchy. c) The Theory of Justice Rawls’s theory proposes that justice is the product of a social contract119 – which is evidently contradictory to Aristotle’s political theory. For Aristotle, justice is a relationship, which is both conventional (distributive justice or geometric) and natural (commutative justice or arithmetic).120 However, if justice is best seen by using the social contract model, which proposes that justice is conventional,121 how is it at the same time innate (natural)?122 Moreover, Rawls refers to the “natural duties”123 and an innate sense of justice.124 But if social duties are natural then why is a social contract useful or even necessary? This raises the tension between jus naturalism and positivism. This debate should be positioned by linking natural law and natural justice; to be legitimate force should be congruent with justice. Positivism is in fact similar to Hobbe’s idea of natural law – i. e. the law of the strongest. each others’ throats, he imagines a fantastical world in, which each person knows enough about human beings and society to be able to imagine the rules they would want to adopt as the basic structure of society but in, which they are under a veil of ignorance as to their own personal characteristics and place in that society. The veil of ignorance is intended to aid in creating an impartial point of view. What rules would you adopt if you did not know whether you would be rich or poor, male or female, strong or weak, etc.? Rawls concludes that no one would adopt a basic structure of society that would not protect the interests of those at the bottom of the economic ladder. This view has been criticized in various ways.” Joseph William Singer, After The Flood: Equality & Humanity In Property Regimes, 52 Loy. L. Rev. 243, 292–293 (2006). 118 John Rawls, Justice as Fairness, Cambridge: Belknap (2001), p. 135. 119 R, 11. 120 See, Aristotle, Nicomachean Ethics, Book V. 121 Liberty Equality and Law, S. McMurrin, Ed. John Rawls, “The Basic Liberties and their Priority”, p. 4. 122 R, p. 5. 123 R, 114. 124 R, p. 5.

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According to Rawls, Aristotle’s definition of justice is essentially a refusal of pleonexy: the just person refuses to take that, which is not his due.125 That is true as far as it goes, but as we earlier saw it does not go far enough. Rawls does not pursue this idea of justice as somehow proprietary to any logical conclusion, neither constructing a theory of economic justice nor by modifying or splitting from Aristotle. Rawls does not synthesize the conflicts between the thinking of Aristotle and social contract theory – which is unfortunate because such a synthesis is possible via natural law theory, which would maintain individual rights whilst rejecting the double myth of a “state of nature” and a “social contract”. Since I reject the social contract outright I do not do so either, however I have a good justification: there was never a social contract. What do I offer? d) A Catholic Inspired Synthesis of Rights Theory and Natural Justice A synthesis of natural right and the right to rebel could be developed out of Catholic just war theory without the resort to the mythical “state of nature”. Natural law includes the right to tyrannicide against an unjust ruler. Thus, the idea of founding role of a mythical social contract as necessary for the right to rebel126 would disappear in a doctrine, which says that among the natural rights is the right to rebel against tyranny. One does not need “social contract” theory to have “the right to resist oppression”. Even when it is recognized within social contract theory, the right of rebellion against a tyrant is circumscribed by a principle of strict necessity, and resistance to acts of oppression must be proportional thereto. Few legal systems dare admit the practical reality that their existence depends on and is measured by the obedience of their subjects. Although a synthesis of jus naturalism and rights theory is possible, if Rawls wants to keep the social contract, and especially the state of nature, he would finally be forced to break from Aristotle, which would not be en125

R, 10. “On se demande si le peuple . . . peut se soustraire à l’autorité d’un tyran qui . . . épuiserait ses sujets par des impôts excessifs . . . Je réponds d’abord à cette question . . . que les peuples ont tout droit de reprendre le souveraineté qu’ils ont confiée à leurs conducteurs, et dont ils abusent excessivement . . . Dès que le tyrannie est extrème, on est en droit d’arracher au tyran le dépôt sacré de la souveraineté . . . Un peuple même qui s’est soumis à une souveraineté absolue, n’a pas pour cela perdu le droit de songer à sa conservation, lorsqu’il se trouve réduit à la dernière misère” Chevalier de Jaucourt, article “Tyrannie”, l’Encyclopédie, Tome XVI, p. 786; Jean-Claude Martinez, Lettre Ouverte aux Contribuables, Paris: Albin Michel (1985), 137. 126

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tirely bad for Rawls, because Aristotle’s theory is inegalitarian: Rawls recognizes that there are stochastic inequalities that are natural but unjust. To Aristotle inequalities are perfectly natural. Here, I agree with Rawls and disagree with Aristotle. Rawls based his theory on the accuracy of private property as a guarantee of justice, and also on the need for a redistribution of wealth in order to guarantee social minima and to avoid oligarchy. This combination of injunctions seems contradictory. The theory of justice in Aristotle is a theory based on unequal property. The redistributive functions that Rawls wants to support are not defended by such a conception of justice. In other words, if Rawls followed the positions of Aristotle to their conclusions, either he would reject his redistributive ideas for a proprietarian theory of justice featuring natural inequality – or he would renounce Aristotelian theory to refine an alternative theory. This is why scientific method in law should seek to drive to one’s basic assumptions: one’s theory is refined thereby and made more accurate, that is science. The debate between natural law and positivism is poorly framed by the idea “either positivism or natural law”. The debate about positivism and natural law can be much better captured by focusing on distinctions among theories of natural law – for example, by distinguishing natural law (force) and natural justice (the idea that to be legitimate, force should be congruent with justice). Once the debate is cast in those terms “positivism versus natural law” disappears because positivism reveals itself to be a variant of the idea of natural law as the law of the jungle, the right of the fittest. The debate is not “either positivism or natural law” but rather “how are positive law and natural justice related?” They are complementary, not contradictory: most laws are positive and local, but others, few in number, are natural and universal (e. g. jus cogens). I take a natural law (law of reason) perspective on jus naturale. To be valid, binding law (lex) must be justified by certain universal values of good and evil. Just law is the union of the binding capacity i. e. physical force (potestas) – and legitimacy (auctoritas) – the linking of physical force with morality. Power without authority is mere violence and authority without power is utopianism.

D. Libertarians I. Introduction: Commonalities between Different Anarchisms It may seem paradoxical that there are right wing theorists who call themselves anarchists – though in fact they are more accurately called libertarian. Libertarians oppose the State but support a key institution of the

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state, property. However, if one says that the property is a natural phenomenon there is, as a consequence, no necessary link between the state and property. There are actually several varieties of anarchism: anarcho-syndicalism, exemplified in Spain during the Spanish civil war; anarcho-communism, which exercised its influence in Ukraine in the 1920s. Marxism can be said to be anarcho-communism in that it affirms the eventual disappearance of the State after the transformation of the State into society via a proletarian dictatorship. There is also Proudhon’s anarcho-pacifism, contrasted with anarcho-terrorism, found in Russia circa 1880. When we see the diversity of positions – all anarchists – unified by their opposition to the state it becomes less surprising that there are also some who call themselves anarchocapitalists. We can distinguish left wing and right wing anarchist theory by the fact that left anarchist theories seek to protect the working class and to transfer control of the means of production to that class. However, anarchism of the left and right share in common a primary opposition to the state, its laws, prisons, and its wars. Anarchism proposes that one person’s ought not be subjected to the will of another person. The proposal to end the state is founded on a moral point – the supremacy of the individual and opposition to paternalism. Thus, apart from the issue of private property, left wing and right wing anarchism have a surprising similarity. The anarchists left and right alike oppose state intervention in personal decisions such as marriage, suicide, drugs and both denounce war.

II. Points of Divergence among Anarchisms Despite these similarities, on other points anarchists of the right and left are divided: unlike anarcho-communists, who see the decline of the state as a result of collectivization of property, anarcho-capitalists propose that the State should disappear by its privatization. Property, viewed from the left as the source of social conflict is seen by the right as the solution of social conflict. Another separation between left and right anarchists is in their methodology. Right wing anarchists often adopt naturalist theory and seek to understand the state by examining its origins. The anarchists left, and more particularly Marx, have a teleological methodology, which defines the State by its history and goals. Naturalism however is usually epistemologically contrary to historical materialism, because most naturalism is based on noetic realism, the belief that ideas have a real existence and are causally and/or temporally prior to things – a position opposed to historical materialism.

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We will consider here the ‘right’ wing of anarchism (anarcho-capitalism, i. e. libertarianism) because this theory is prominent (but not predominant) in contemporary American anarchist thinking. By way of contrast, left wing antinomianism (anarcho-syndicalism or anarcho-communism) has had more influence in Russia, Spain and Israel. Right wing anarchism may be analysed in two branches, a political wing, represented here by Nozick, and an economic wing, represented by David Friedman. Anarcho-capitalist elements are also found in the Austrian school and public choice theories. However, these schools are less definitive in their anarchism. Hayek, for example, does not advocate the dissolution of the State.

III. Anarcho-Capitalists (Libertarians) The a-historical social contract theory is at the root of anarcho-capitalist theory. The logic is, if people have the right to form a government, they can also abolish it. However, the social contract presupposes impossibilities. The right to dissolve the State is based not on a fiction of its construction but on the reality of a violent reaction to people – the law of nature, the law of the strongest, against a breach of natural justice. An unjust State risks civil war because of its injustice and inability to govern, not because it was somehow (how?) formed through a process of “tacit consent” renewed, supposedly, automatically by successive generations. The social contract presupposes: – An anarchic origin of the state. – Society (a set of individuals and nothing more) emerging from this anarchy via the (fiction) of a social contract. – A social contract, which creates and justifies an order that protects the collective, in theory in the interests of all; and that this pact (in theory) is supported by all and is desirable for and desired by all. Which is fictitious. Because of the counterfactual assumptions of the social contract, the solution proposed by anarcho-capitalist theorists to the problem of state power is a non-sequitor. Anarcho-capitalism suffers the same problems as social contract theory, erroneous assumptions about human nature. We will also see that, in practical terms, anarcho-capitalist theory is unrealistic. The right to rebellion is a practical reality resulting from a succession of unbearable injustices where we see an unjust state creating its own downfall in the face of the practical reality of violent resistance to its injustices. You can criticize or support this combination as barbaric or necessary but that description is at least based on facts.

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1. Nozick a) The Political Theory of Anarcho-capitalism127 Like most Anglo-Saxon thinkers, Nozick takes an individual liberal perspective and presupposes a mythical state of nature. From the impossible premise Nozick argues, like the other anarcho-capitalists, that the state must be minimized and eliminated. Nozick’s theory is a theory of natural rights,128 strongly influenced by Locke129 and Hobbes,130 and approved by Rawls. Nozick presents a social contract theory because he basis his views on the idea of a mythical “state of nature”.131 His is an individualist theory, as it is by common accord132 that individuals (supposedly) leave the (mythical) state of nature. His logical conclusion to the false premise is contradicted by the real-world proposition that man is a social animal and inevitably so, because he is dependent for survival on other people. (Aristotle, Politics). Nozick justifies pursuing the fiction of the social contract by a faulty heuristic. Nozick is trying to use a correct normative axiology (objective morality) to develop a theory with explanatory power, but grounds his theory in an inaccurate view of the history of the origin of the state.133 Moreover, Nozick appears to confuse moral and political theory. If he wanted to 127 “Nozick has helped to make libertarian and anarchist theory acceptable in academic circles. However, in the end he opts for a nightwatchman State in order to protect the individual’s rights to life, liberty and property. In his ‘framework for utopia’, he proposes a society of independent city-States organized according to their inhabitants’ preferences. He defends capitalism under the theory of just entitlement, arguing that just acquisitions and just transfers made in the absence of force or fraud legitimize the distribution of wealth resulting from capitalist exchange. However, poorly a person may fare in the exercise of human liberty, there is no moral reason to correct market forces by redistributing wealth.” Anonymous, “Anarcho-Capitalists”, http://dwardmac.pitzer.edu/dward/newrightanarchocap.html. 128 “Les individus ont des droits, et il est des choses qu’aucune personne, ni aucun groupe, ne peut leur faire (sans enfeindre leurs droits).” Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 9. 129 Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 27. 130 Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 21. 131 Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 19. 132 Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 29. 133 “Une théorie de l’état de nature qui commence par des descriptions générales fondamentales d’actions moralement acceptables ou inacceptables – et de raisons bien fondées pour lesquelles certaines personnes, quell que soit la société, violeraient les contraintes morales – et poursuit en décrivant comment un Etat émergerait de cet état de nature, elle servira nos buts explicatifs, même si aucun Etat réel n’est jamais apparu de cette fac¸on.” (Emphase dans l’original) Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 23.

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refine his theory he would have done better to consider moral issues such as cognitivism and relativism, which are not only more relevant than myths but are also heuristically unexhausted. Axiological cognitivism, my position, is not universally accepted. Nozick ignore the real issue in pursuit of needless aporias. Nozick admits that the there is no empirical basis for the theory of the state of nature. He claims that the social contract theory is nevertheless heuristically useful because it allows us to understand how the state emerged. However, he does not explain how this illogical position has any real world heuristic use. If our objective is to understand the origins of the state or what makes a state legitimate then it would be better to study realworld history and take mankind as we are rather than engage in fiction. Why not inquire into the orders of angels to find out the moral duties of states? That too could be a good heuristic. Despite the flaws in social contract theory, Nozick argues that the State might in fact have emerged from a social contract.134 That is empirically untrue and in fact impossible because of the interdependent nature of mankind. The State did not and could not emerge as a consequence of an accord between autarchic free individuals because humans are not self sufficient. The state arises as a natural and inevitable135 logical extension of the extended family,136 the tribe and finally the nation (a linguistic community). (Aristotle, Politics). As the possibility of violence is inevitable the state is necessary and history cannot end in a utopian anarchy – although it may approach that happy goal depending on the level of development of the economy. 134

Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 25. Even Posner recognizes the inevitability of the state. He also notes that some laws appear to be ‘natural’. If the state is as natural as the family then at least some laws are also likely natural. “I said earlier that primitive peoples have no criminal law because there is no state, but this is an overstatement. Even societies that do not have any governmental organs often regard a few acts, principally witchcraft and incest, as offenses against the community” In other words, primitive peoples have primitive states. Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), pp. 203–204. 136 Posner, though he conflates “the good life” and “wealth maximization” nevertheless recognizes the familial origin of the state: “Historically the state begins as an agglomeration of households when each household is no longer strong enough, even in (loose) alliance with other households, to ward off powerful enemies. However, the transition to political society is a difficult one, because the households, having been so long autonomous and having become in some cases powerful miniature states themselves, resist subordination to a larger entity. For a strong state to emerge, the great households must be broken up. Priam’s Troy is the symbol of the struggle.” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 131. 135

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A better justification to study theories of the state of nature would be to determine the correct conclusions that appear to arise from this theory. The heuristic interest then would be to determine how a correct conclusion may arise out of a theory based on erroneous principles. No false result may stem from a true premise, but sometimes valid consequences are connected, wrongly, to a false premise – which is the definitive nature of the error, but understanding why and how errors occur could be useful. Nozick does not do that. Rather, his exercise is aimed at maintaining a failed theory as the basis of legitimation of contemporary states, an impossible task since the theory in question is founded on counterfactual premises. Had Nozick instead sought to identify the correct conclusions, which appeared, wrongly, to follow from a flawed theory based on incorrect assumptions he would thereby have helped us better understand the truth and thus correct the erroneous theory or modify other theories. That would be a valid justification to consider a theory as obviously false as the social contract. No false consequence follows from true premises of a valid syllogism. However, sometimes true conclusions may seem to follow as consequences from false premises or an invalid syllogism due to an error in thinking, generally an enthymematic presumption, such as can give rise to equivocations. Such pseudo conclusions may seem to emerge from false premises. Moreover, the truth or falsity of a premise may not be demonstrable. These epistemological facts justify rejection of philosophical realism (noesis; eidos – Plato’s theory of forms). Truth, if it exists, (and I argue it does) is not necessarily always demonstrable. The idea of a social contract is just such a false premise, which appeared to generate true “conclusions” such as the right to rebel. Bridging that gap would have been a valid heuristic, but that is not what Nozick is trying to do. b) Nozick’s Ultra Minimal State Instead Nozick’s goal is to delegitimize and minimize the state and for that end he instrumentalises social contract theory, avoiding thereby the interesting and useful questions outlined above. To attain his end, Nozick proposes an ultra minimal a State, which is limited to the defence of individuals and their property rights. Nozick accepts the Weberian model of the State as a monopoly of legitimate violent coercion.137 He claims that his ultra minimal state holds that monopoly ex137

Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 41.

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cept in cases of legitimate self defence.138 But the Nozickean ultra minimalist state only offers protective services to people who can pay for this protection.139 Nozick however seems to provide for some minimal universal coverage without regard to ability to pay and thus his state is ultra minimal.140 To his credit, however, Nozick does however reject utilitarianism.141 According to Nozick property is natural and it is the guarantee of justice.142 In contrast to Locke, money for Nozick is not a social convention but a natural phenomenon.143 Nozick’s minimalist state would be limited to the Weberian monopoly of legitimate violence. If we reject anarcho-capitalist theory for theoretical reasons (the impossibility of a state of nature) as well as practical reasons (the social nature of man and the inevitability of the possibility of violence, and thus the need for State), it is clear that in practice we nonetheless observe a wave of privatizations since 1980 which tends to validate his theory as a description of reality. However, the disappearance of every state function is neither possible nor desirable. The adverse consequences of a disappearance of the State would be criminal violence consistent with a combination of despair (no welfare) and no authority (no police). Privatization and nationalization seem to follow a cycle and are triggered by crises. According to this hypothesis, nationalisation and privatisation would follow the economic cycle but alternately. Thus, the answer to the crisis of 1929 was nationalization, but the answer to crisis of 1979 was privatization. If cyclical privatization and expropriation are inversely correlated to the economic cycle, the possibility of privatization depends on a definitive abolition of the economic cycle. However, economic theorists have essentially abandoned the idea of state controls on macro-economic cycles. The inevitability of economic cyclicity indicates that devolution of state power cannot be definitive. If State interventions are possible and necessary to remove the commercial cycle of expansions, contractions, and attendant wars then the abolition of the State following an abolition of cyclicality would be logically impossible: cyclicity would return and with it the state. As for theo138

Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 45. Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 45. 140 Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 145. 141 Robert Nozick, Anarchy, State, and Utopia 62, 201 (1974). 142 Sa pensée propriétaire est aussi inégalitaire. “La conception de la justice fondée sur les droits de possession ne donne aucune présomption en faveur de l’égalité”. Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 287. 143 Robert Nozick, Anarchie, Etat et Utopie. Paris: PUF, 1988, p. 36. 139

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retical reasons, the final abolition of the State is impossible because we will never be able to eliminate the human capacity for violence. Likewise, economic cyclicity is somewhat inevitable due to natural factors such as weather, seasons, and demography. So the elimination of the state seems impossible, though state violence can be suppressed and the ill effects of state power minimized. 2. David Friedman – the Economic Theory of Anarcho Capitalism (Libertarianism)144 Nozick is the theoretical wing of anarcho-capitalism. Its economic wing is David Friedman. Friedman is lucid, clear, provoking – and troubling precisely because of his clarity. Friedman proposes to get rid of the state via privatization. He opposes state interventions on individual choices. For example, he proposes the legalization of narcotics and pornography.145 Friedman believes that private property must be maintained. This point distinguishes left wing from right wing anarchists. Left wing anarchists advocate collectivization, either at the level of producer (anarcho-syndicalism) or at the level of the whole society (socialism). Right wing anarchism (more accurately, libertarianism), like Posner, subsumes the state and the economy by making an equivalence between economics and law. Friedman proposes that the state can be replaced by private security agencies and private courts. He cites the historical experience of the Nordic countries, for example Iceland.146 Icelandic history shows the state emerging steadily out of private agents – first, families, and then collectives. 144 Le vide morale qui se trouve dans la pensée anarcho-capitaliste s’exprime ouvertement chez Friedman. Mais, à la différence de Posner, Friedman connaît qu’il est anti-cognitiviste, et considère la question du relativisme morale plus soigneusement que la majorité des anarcho-capitalistes – qui en générale ne trait pas, au moins dans une fac¸on consciente, la question du cognitivisme ou anti-cognitivisme. 145 “The central idea of libertarianism is that people should be permitted to run their own lives as they wish. We totally reject theidea that people must be forcibly protected from themselves. A libertarian society would have no laws against drugs, gambling, pornography – and no compulsory seat belts in cars. We also reject the idea that people have any enforceable claim on others, for anything more that being left alone. A libertarian society would have no welfare, no Social Security system. People who wished to aid others would do so voluntarily through private charity, instead of using money collected by force form the taxpayers. People who wished to provide for their old age would do so through private insurances.” David Friedman, The Machinery of Freedom, p.xvii (1973). 146 See, Birgir Runalfsson Solavson, Doctoral Thesis. Available at: http://web. archive.org/web/20030608044300/www.hi.is/~bthru/contents.html.

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Friedman’s history is not entirely inaccurate, but it should be remembered that the feudal justice, especially in the Atlantic islands, was among people who lived in societies so isolated that their political institutions during the feudal era were in fact extensions of family institutions. The right to compensatory damages for wrongful death (Wergeld) is surely on the line between private law (tort) and crime. However, though the state developed from extended families subsuming therein individual and familial rights we should also recall that this “private state” in the feudal era was marked by more violence than the “public state” which replaced it. In that sense David Friedman is reactionary, seeking to go back in time to a worse situation than where we are now, apparently because of either a utopian belief or shrewdly calculated self interest. It can be said however that because Friedman’s view is grounded in realworld history that his methodology is better than the mythologizing social contract liberals. In addition, we can note the same linguistic indeterminicity (Quine) which condemned the effort of Dworkin to establish a distinction between “policy” and “principle” to failure. The distinction of “public” and “private” is also an artificial convention and depends for its exact content on the act of interpretation. For this reason one could say that an institution such as the Icelandic Allthing is either public or private according to whatever legal interpretative method we apply to evaluate it. And we can say that a political system such as there was on Iceland (a representative democracy with a justice system based on compensation and vigilante justice) was, or was not, a state and that its institutions were, or were not, public, private, Quasi-public or quasi-private partnerships. Despite the historicity and pragmatism of such an approach – privatization by way of tort and vigilante – there are two brief criticisms we can make of David Friedman’s concept. Despite lucidity, his proposals are doubly irresponsible and ignore the violence that would result from a privatization of the state’s police functions: (1) Friedman’s thought is irresponsible and unrealistic because it ignores the fact that the logical consequence of a privatization of coercive power will be an increase in violence. The best example of a private system of violence is organized crime. Friedman ignores the fact that privatization of violence will trigger small wars in the style of Chicago or Germany in the 1930s or in contemporary Russia. The rise of the State was bloody. His privatization of the state’s security functions would also be bloody because each agency private security would scramble to dominate the market in order to gain a monopoly. (2) David Friedman’s ideas are also unrealistic and irresponsible because he ignores that the privatization of the charitable role of the state would

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also trigger violence. Although the church and other charities do offer some real assistance to the poor, supposing that they are well funded and can support any person in need is simply unrealistic. Friedman seems willing to ignore that the disappearance of the State through privatization would also involve the disappearance of public services that are not profitable. Yet, unprofitable state functions such as charity, are necessary for maintaining social peace. Thus, their termination would increase social inequality and result in violence. David Friedman tries to undercut the economic redistributive power of the state. Taking up his views would result in the further disenfranchisement the poor, their isolation and separation in an unequal system of repression permanent and lead to a form of economic apartheid. This despair would in turn create violence and rebellion, which would justify repressive force, which would inspire more resentment and rebellion. In short, Friedman proposes to put society into a vicious spiral of rebellion and repression. The consequence of Friedman’s thinking would be a Hobbesian, a war of all against all, where the only law is the law of the strongest.147 We deserve better. The positions of David Friedman may be criticized as naive, cunning, or vicious; they can also be supported as logically consistent and non-contradictory. However, his views are morally indefensible.148 On the political level, they are unrealistic and irresponsible. 3. Conclusions a) Anarcho-capitalism is Unrealistic The scholars we have seen have a common starting point based on atomism, empiricism and individualism. They also presuppose man as a rational profit maximiser (homo economicus)149 (an unrealistic model). From these common assumptions, they reach similar conclusions standards but sometimes by different paths. These findings are summarized below:

147 Hobbes, Leviathan: “Life in the state of nature is “poore, nasty, brutish, and short” Lloyd, Lloyd’s Introduction to Jurisprudence, p. 156. 148 “I have no theory of justice to offer other than that implied by individual liberty.” David Friedman “Anarchy and Efficient Law”, For and Against the State, John Sanders and Jan Narveson eds. Rowman and Littlefied Publishers, Inc. (1996). 149 Lord Lloyd, Lloyd’s Introduction to Jurisprudence, pp. 430–431.

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b) No Dissolution of Private Property It is inaccurate to call libertarianism anarchist, because it proposes an “ultra-minimal” State and to replace other State functions by private agencies – which is different from the complete disappearance of the State and ownership among left wing anarchists. c) Privatization of State Functions Left wing anarchism faces the problem of the collectivization of the means of production. Right wing anarcho-capitalism confronts the opposite problem: maintaining a system of private property. The contradiction is that property implies the need for police – whether public or private, to defend it. It is more correct to call right wing anarchism libertarianism rather than anarchism since it proposes a minimal state, not the disappearance of the state. Despite the fact that the idea of privatizing any state function is unrealistic it must be noted that the recommendations of right wing libertarians are in fact being brought about in the world today. The most extreme example of privatization is seen in the United States. Private militias, security companies, and judgments by arbitration are all part of daily reality there. Vigilante justice is a peculiarity of the United States, probably a consequence of its history as a frontier society. Thus, privatization is an integral part of U.S. legal thought. In this combination of privatization of force and providential coercive functions we see the coercive authority of the State replaced by other coercive authorities, which are “private” and made available only to those who can pay. This development is bad for democracy as the legitimacy of such institutions, if judged by any citizen, is reduced. d) Negativism Another criticism of “anarcho-capitalism” is that the positions of right wing anarchists are, excepting Hayek, purely negative. Right wing anarchists reject the state, and offer in its place the supremacy of the individual. The positions of right wing anarchism (libertarianism) are not proposals for creation; they are negative calls to inaction, to cease and desist. For these reasons, libertarian right wing anarchists can be criticized for a lack of vision – as well as a lack of realism. Anarcho-capitalist thinkers have not developed a coherent vision of the relationship between the individual and society. This absence is due to their atomism: for them, society does not really exist, only individuals. A lack of an explanation or theory of the

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proper relationship between the individual and his family, tribe, nation, people and other families, tribes, nations and peoples, can also be explained by their social contract individualist method, which proposes to consider the polity from fictitious origins in a “state of nature” ending with a “social contract”. The problem is that this naturalist thought is based on an impossible myth and ignores the fact that man in isolation dies of cold, hunger and loneliness. Life in the state of nature is impossible – it would be poor, nasty, brutal and short.150 That is why the one-time punishments of exile and outlawry were as serious as capital punishment. So, libertarian theory is under developed – it lacks a teleological perspective. No purpose is proposed for the individual man finally freed from the state. Libertarian hyper-individualism is unrealistic. The atomism, which is responsible for this thinking is not explained or questioned and can create contradictions when it strikes any of the variants of the theory of natural rights. Because of these potential contradictions unexpressed ideas, and the unexamined individualistic foundations of libertarianism this theory, despite its success, is not yet sufficiently well developed to allow one to admits its assumptions or unrealistic proposals, despite the lucidity of Hayek. To their credit, anarcho-capitalist thought cannot trigger wars; anarcho capitalist theorists opposed the war in Vietnam. However, libertarian thought does not propose policies to eliminate poverty. The same humanity that condemns war explains why we, as Hayek, should support a role for the state as an insurer of a minimum level of welfare. As to “anarcho-capitalist” theorists, our rejection of their position is both theoretical and practical. Anarcho-capitalist theory presupposes impossibilities. Replacing the state by private armies seems to be a good recipe for Germany in the 1920s and 1930s, Chicago during prohibition and Moscow in the 1990s. There are good practical reasons to reject “anarcho capitalism”. For these reasons I reject the positions of Nozick, David Friedman, Mises and Rothbard. In contrast, Smith’s theory of public goods and the theory of externalities are valid. The school of public choice (the Virginia school) provides good criticisms of the state as an organizational form. Buchanan was able to rebut a presumption that state organization is always good, but has not demonstrated that private organization would be better.

150 Hobbes, Leviathan: “Life in the state of nature is ‘poore, nasty, brutish, and short’ ” in Lloyd, Lloyd’s Introduction to Jurisprudence, p. 156.

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E. Criticisms of the Social Contract I. Criticisms of the Social Contract from within its own Terms 1. The State of Nature is an Impossibility The first criticism of the social contract is that no state of nature has ever existed. The state of nature is a fiction, pure and simple.151 Some proponents of social contract theory even admit that the theory has no descriptive historical validity.152 Because humans are a social animal and are not self sufficient we must live with each other in society.153 Thus, the state of nature in the end is but a thought experiment,154 metaphysical idealism. In other words, this thinking does not validly describe, but may still form reality and thereby support or subvert a political regime. 2. The Social Contract is but a Fiction The limits of the idea of a “social contract” appear when one considers the impossibility of the state of nature and its consequence – the social contract. This impossibility is shown by the following questions: (1) What are the necessary conditions for a social contract to be formed? (2) Why is the social contract binding upon successive generations, which have not contributed to its creation?155 In fact, one can only note the lack of answers in the context of theoretical thinking of the social contract. According to the proponents of this theory, the “contract” is only a formal model, or an explanation of the emergence of a democratic government from anarchy. Finally, it is worth pointing out that the artificial nature of the social contract was already present in Hobbes – who had the goal of restoring order after the English Civil War; similarly, Rousseau wanted to bring social harmony, legitimizing one regime while threatening to destabilize another. 151 Ashcraft, Richard. “Locke’s State of Nature: Historical Fact or Moral Fiction.” American Political Science Review 62 (1968):898–915. 152 Rawls, A Theory of Justice. Cambridge, Massachusetts: Belknap Press of Harvard University Press, 1971. 153 Aristotle, Politics, Book I). 154 Rawls, A Theory of Justice. Cambridge, Massachusetts: Belknap Press of Harvard University Press, 1971. 155 Lloyd, Lloyd’s Introduction to Jurisprudence, p. 118.

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II. Criticisms of the Social Contract from Outside its own Terms One can also criticize the idea of the social contract from presuppositions, which are antagonistic to it. Consider Aristotle’s propositions about the nature of human beings. He described man as a rational social animal who talks156 Aristotle correctly saw that humans must live in society and cannot survive in isolation.157 To this one should note that the rational social animal man, gifted with speech and curiosity (humans, by nature, desire to know) is capable both of great violence and of progressive evolution. Humanity today is not humanity tomorrow.158 Human teleology is not Hobbesian self preservation, it is Nietzschean self development.159 In other words the state of nature is impossible, thankfully, for if it existed life in it would indeed be poor, nasty, brutal and short. 1. The Necessity of Government The usual consequence of recognizing the rectitude of Aristotle’s presuppositions about the social and rational nature of people is that government is taken as necessary and inevitable as well as desirable.160 Neoliberal 156 “Si l’homme est infiniment plus sociable que les abeilles et tous les autres animaux qui vivent en troupe, c’est évidemment, comme je l’ai dit souvent, que la nature ne fait rien en vain. Or, elle accorde la parole à l’homme exclusivement. La voix peut bien exprimer la joie et la douleur; aussi ne manque-t-elle pas aux autres animaux, parce que leur organisation va jusqu’à ressentir ces deux affections et à se les communiquer. Mais la parole est faite pour exprimer le bien et le mal, et, par suite aussi, le juste et l’injuste; et l’homme a ceci de spécial, parmi tous les animaux, que seul il conc¸oit le bien et le mal, le juste et l’injuste, et tous les sentiments de même ordre, qui en s’associant constituent précisément la famille et l’État.” Aristote, Politique, Livre 1, § 10. 157 Aristote, Politique, Livre 1, § 12. “Ce qui prouve bien la nécessité naturelle de l’État et sa supériorité sur l’individu, c’est que, si on ne l’admet pas, l’individu peut alors se suffire à lui-même dans l’isolement du tout, ainsi que du reste des parties; or, celui qui ne peut vivre en société, et dont l’indépendance n’a pas de besoins, celui-là ne saurait jamais être membre de l’État. C’est une brute ou un dieu.” 158 Friedrich Nietzsche, Ainsi Parlait Zarathoustra (1883–1885), translated by Henri Albert. Available at: http://de.zarathoustra.org/index.php/Ainsi_parlait_Zar athoustra. 159 “L’association de plusieurs villages forme un État complet, arrivé, l’on peut dire, à ce point de se suffire absolument à lui-même, né d’abord des besoins de la vie, et subsistant parce qu’il les satisfait tous.” Aristote, Politique, Livre I § 8. 160 “Delà cette conclusion évidente, que l’État est un fait de nature, que naturellement l’homme est un être sociable, et que celui qui reste sauvage par organisation, et non par l’effet du hasard, est certainement, ou un être dégradé, ou un être supérieur à l’espèce humaine.” Aristote, Politics, Book I, § 9.

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theory however questioned that conclusion. Several anarchist theorists have rejected, in one way or another, the idea that government is necessary and provide some interesting criticisms discussed below. However, the anarchists’ views are not sufficiently realistic. Government is necessary to human survival and well being. Good governance is desirable because it enables humans to fully develop their capacities. 2. The Impossibility of an End of History Some theories – including Marxism – assume that history is cyclical or an ever progressive spiralling dialectic with a purpose (historical determinism).161 However, human capacity for violence indicates that the end of history cannot happen. Government is needed because of the ability of men to do violence. Social peace is always only partial, although some economic conditions favour peace. In addition, if the human species is still evolving, the genetic end of history could never happen. Historical materialism is thus qualified by final cause: universal peace is possible but eternal peace is not inevitable.

F. Conclusion: Explaining the Success of the Theory of Social Contract Theory If social contract theory is no reflection of historical reality and a logical impossibility how can we explain its success? First, recall that the sceptical methodology of Occam resulted in empiricism and atomism, which encouraged individualism. Social contract theory, an individualist theory, was consistent with Occam. Social contract theory is the only theory of the origin of the state that identifies states as originating not in families (as in Rousseau162 and Aristotle163) but in individuals. Individualistic social contract 161 “Nous ne sommes pas vraiment conscients de notre dette intellectuelle envers Hegel, essentiellement parce que son héritage nous a été transmis via Marx, qui s’appropria de larges parties du système hégélien pour ses propres besoins – et critiqua violemment le reste. Marx rec¸ut de Hegel la conception de l’historicité fondamentale des affaires humaines, la notion que la société que la société des hommes a évolué au cours des temps depuis les structures sociales primitives jusqu’à des ensembles plus complexes et hautement développés.[. . .] Marx partageait également la croyance de Hegel en la possibilité d’une fin de l’Histoire: il prévoyait en effet une forme finale de société, libre de contradictions et dont la réalisation terminerait le processus historique.” (Francis Fukuyama, La fin de l’Histoire et le Dernier Homme, Paris, Flammarion, 1992). 162 “La plus ancienne de toutes les sociétés, et la seule naturelle, est celle de la famille: encore les enfants ne restent-ils liés au père qu’aussi longtemps qu’ils ont

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liberalism is such an effective ideology because it is coherent with the atomism and empiricism born of medieval scepticism that are the foundation of capitalism. Social contract liberalism is no accurate description of history but is so coherent with the dominant social values, structures and institutions that it largely goes unquestioned and legitimates the political system it supposedly describes. Historically, it is worth noting that there is some correspondence between social contract theory and reality. Not only the English Civil War but also the English Bill of Civil Rights164 and magna charta165 did in fact have contractual elements as of course did the U.S. and French revolutions. Thus a certain historical junction – the rise of the capitalist class and the fall of the aristocratic hereditary rulers – allowed an inaccurate theory to succeed. It was not the strength of the social contract idea itself but rather historical conditions that led to the ascendancy of social contract theory. This last point underscores the importance of historical materialism: some historical conditions tend to favour certain consequences and to disfavour others. This position can be demonstrated by the French attempt to establish a feudal order in Quebec – which ended in failure.166 besoin de lui pour se conserver. Sitôt que ce besoin cesse, le lien naturel se dissout. Les enfants, exempts de l’obéissance qu’ils devaient au père; le père, exempt des soins qu’il devait aux enfants, rentrent tous également dans l’indépendance. S’ils continuent de rester unis, ce n’est plus naturellement, c’est volontairement; et la famille elle-même ne se maintient que par convention. . . . La famille est donc, si l’on veut, le premier modèle des sociétés politiques: le chef est l’image du père, le peuple est l’image des enfants; et tous, étant nés égaux et libres, n’aliènent leur liberté que pour leur utilité. Toute la différence est que, dans la famille, l’amour du père pour ses enfants le paye des soins qu’il leur rend; et que, dans l’État, le plaisir de commander supplée à cet amour que le chef n’a pas pour ses peuples.” Rousseau, Du Contrat Social, Chapitre 1.2. 163 “L’association première de plusieurs familles, mais formée en vue de rapports qui ne sont plus quotidiens, c’est le village, qu’on pourrait bien justement nommer une colonie naturelle de la famille; car les individus qui composent le village ont, comme s’expriment d’autres auteurs, ‘sucé le lait de la famille’; ce sont ses enfants et ‘les enfants de ses enfants’. Si les premiers États ont été soumis à des rois, et si les grandes nations le sont encore aujourd’hui, c’est que ces États s’étaient formés d’éléments habitués à l’autorité royale, puisque dans la famille le plus âgé est un véritable roi; et les colonies de la famille ont filialement suivi l’exemple qui leur était donné.” Aristote, Politique, Livre § 7. 164 English Bill of Rights 1689, http://www.yale.edu/lawweb/avalon/england. htm. 165 Magna Carta, 1297 http://www.statutelaw.gov.uk/content.aspx?activeTextDocId =1517519. 166 Jacques Lacoursière, Histoire populaire du Québec, p. 16. Les éditions du Septentrion (1997).

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An idea can succeed for a time despite a partial match with reality, but such an idea will eventually collapse when the reality that allowed it to subsist disappears. Thus for example, the contemporary change from an industrial economy to an information economy167 may result in the collapse or transformation of basic ideas about social life. Dworkin, Rawls and Nozick try to rehabilitate concepts like social contract and sovereignty but those ideas no longer correspond with reality. Their efforts represent in fact blind attempts to respond to a transformation of the mode of production from serial mass production to specialized high tech and information based niche production, which has resulted in a globalized world of integrated and cross cutting networks. The force of attraction inherent in the theory of “social contract” is its assertion of a principle of government by consent – even though such consent is only hypothetical, tacit or virtual. Another strength of social contract thought is the idea of a right to resistance, derived from the principle of consent, which is briefly implied in Hobbes and openly stated by Locke. This principle of consent168 – although poorly respected169 – is nevertheless a fundamental principle of Anglo-Saxon law, recognized in the Magna charta. It is also recognized in the Declaration of Human Rights of 1789.170 However, the inevitable and insoluble problems are: (1) The contract is unequal – the citizen alienates all her rights with the sole return of physical security. (2) This alienation also affects future generations. (3) This alienation is in fact fictitious. On a theoretical level, the social contract is an expression of the idea of government by consent consequent to the recognition of individual rights and the rule of law. The social contract recognizes and affirms the value of the individual. The cohesion between individualism and social contract theory ensures the continuity of the idea. 167 La documentation Franc ¸ aise, “L’émergence d’une économie fondée sur le savoir”, 50 Ans de Problèmes Economiques, 22–29/IV/1998, p. 64. 168 As earlier noted, some admit this is a myth. Lucien Mehl, Le Principe du Consentement à l’impôt et autres prélèvements obligatoires: Mythe et Réalité. Rev. Fr. Fin. Pub. Nº 51, 1995 P. 65: also see Pierre Beltrame, Le Consentement de l’impôt: Devenir d’un grande principe. Rev. Fr. Fin. Pub. Nº 51, 1995 P. 81, 82. 169 E. g., “dévalorisation politique de principe du consentement de l’impôt.” Pierre Beltrame, Le Consentement de l’impôt: Devenir d’un grande principe. Rev. Fr. Fin. Pub. Nº 51, 1995 P. 81, 82. 170 Art. 14 Declaration of Rights of Man and the Citizen, France; Michel Bouvier, Introduction au droit fiscal et à la théorie de l’impôt. Paris: LGDJ (2d Edition) (1998), p. 40.

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In practical terms, a combination of factors led to the success of social contract theory: – A decrease of the political strength of the Church. –

The rise of the bourgeois class.

–

Increasing economic exchanges (the transition to capitalism).

All these factors led to a questioning of the theory of divine right of kings. The consent of the bourgeois class was more necessary for the proper functioning of commercial kingdoms like England, but also of the Netherlands. Finally, social contract theory promised to attenuate and channel social tension by presenting itself as an abdication of the people’s power to revolt against government and the transfer of their power to the state via a supposedly irrevocable perpetual contract.

Chapter 6

Late Modernity: Legal Realism The previous chapter set out the weaknesses of social contract theory, including contemporary social contract theory, as justifications or explanations of state power. Given the inadequacy of social contract theory it may be no surprise that left wing challenges within U.S. hegemony have not been cast in terms of the social contract. In this chapter we look at challenges to state power in the U.S. in modernity.

A. Introduction Legal interpretation in the United States changed dramatically between 1930 and 1950 on the basis of theories described and developed after 1880. The Great Depression and World War II unleashed radical criticism, particularly prior to the World War II. Legal realism proposed radical new methods of legal interpretation to try to meet the challenges of global depression and global war. The new legal methods proposed by realism at first seemed to indicate a new legal order. In fact, they only preserved the old order, protecting it from fundamental change. Thus, the same problem, cyclical economic downturn triggering war for resources and market share recurred in Vietnam. Just as the depression and world war triggered realism, so too did Vietnam spark the Critical Legal Studies movement. Once more, much radical discontent led nowhere. Yet again, economic downturn has triggered a war for resources and market-share – Iraq. New legal movements will arise out of this war too. If these movements are to be effective, we must understand the efforts and errors of their predecessors. This chapter presents a retrospective of past legal discourse intended to help contemporary scholars situate their ideas contextually as part of a recurring struggle.

B. The Judicial “Revolution” Between 1930 and 1950, the United States underwent a major transformation.1 A fundamental – and undemocratic2 – redistribution of power oc1 Kurt T. Lash described the transformation: “Prior to 1937, the Supreme Court had broadly rejected both federal and state attempts to regulate the economy and

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curred.3 However, the “judicial revolution,”4 which, at first, appeared to undercut the dominant old order, effectively worked to preserve that dominant system from a real revolution, and then was ultimately co-opted by that order. The co-optation was due to theoretical failure5 and the practical reality of the reversal of America’s fortunes between 1935 and 1945.6 Thus, the provide for the welfare of workers . . . Finally, in 1937, a single justice changed his vote and a new majority of the Supreme Court initiated the modern tradition of judicial deference to economic and social welfare legislation . . . The same Court, which abandoned liberty of contract also launched the second most significant doctrinal innovation of the twentieth century: selective “incorporation” of the Bill of Rights into the Fourteenth Amendment . . . [The Court also] restored state autonomy over its own common law . . . The New Deal Court not only abandoned liberty of contract, it also abandoned the parental rights jurisprudence of Meyer v. Nebraska and Pierce v. Society of Sisters. As of 1937, parental autonomy disappeared from the list of liberties protected under the Due Process Clause.” Kurt T. Lash, The Constitutional Convention of 1937: The Original Meaning of the New Jurisprudential Deal, 70 Fordham L. Rev. 459, 459–61 (2001) (footnotes omitted) (mentioning Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), and Erie R.R. v. Tompkins, 304 U.S. 64 (1938), as revolutionary decisions). 2 “The inescapable question of American constitutional law in the twenty-first century is, as it has always been, how to reconcile democracy and judicial review.” Michael C. Dorf & Samuel Issacharoff, Can Process Theory Constrain Courts? 72 U. Colo. L. Rev. 923, 926 (2001). 3 “[T]he realists were unable to produce an acceptable alternative to formalism that would enable judges and lawyers to engage in normative argument.” Joseph William Singer, Legal Realism Now, 76 Cal. L. Rev. 465, 467–68 (1988) (reviewing Laura Kalman, Legal Realism at Yale: 1927–1960 (1986)). 4 The usual view is that the fundamental transformation of the courts methodology and the implications of that for federal power were a metaphoric revolution. See, e. g., Rebecca E. Zietlow & James Gray Pope, The Toledo Auto-Lite Strike of 1934 and the Fight Against “Wage Slavery,” 38 U. Tol. L. Rev. 839, 839 (2007). In fact, however, the transformation of the judiciary, and by consequence of the federal executive, was not a metaphoric revolution. It was an entirely succesful reaction, an effort to shore up the political system against a real revolution, followed by postwar co-optation of all former radicals excepting the Stalinists who were thereafter completely isolated and marginalized. 5 Singer, supra note 3, at 468. 6 “As Humes (sic) stated: ‘[Legal realism] was the work of a generation that came of age under the influence of Hitler, fascism, Pearl Harbor, Dachau, Hiroshima, the exhaustion of the western European democracies, the eastern European ‘revolutions,’ and the simultaneous threats of communism abroad and McCarthyism at home – and under the influence of the distinctly 1950s belief that ours was a society that had moved, or certainly could move, ‘beyond ideology’.” Jeremiah C. Humes, Macroeconomic Analysis of the Law: The Missing Piece of the Law and Economics Puzzle, 42 Washburn L.J. 957, 962 n. 65 (2003) (alteration in original). However, is not the idea “beyond ideology” beyond the universalist narratives of modernism one aspect of postmodernism? So the idea was not so unique, was a foretaste of the future and shows how the pre-war left became a postwar pseudo-left, by abandoning normative discourse and universal narratives.

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supposed revolution affirmed the dominant paradigm even more effectively than the most reactionary could hope. The fake revolution7 influenced so much of contemporary legal theory that we must understand what happened in the past if we wish to influence contemporary legal thought.

I. The Great Depression: The Judicial Revolution The first stage of the judicial revolution began with the threat of the United States Supreme Court’s disempowerment in the 1930s.8 When the Court realized it was truly threatened by the President’s New Deal, it abruptly and decisively aligned itself with the federal executive,9 accepting the reforms as a necessary bulwark against outright communism or fascism. To justify its substantive realignment, the Court reoriented its jurisprudence, turning away from formalism and natural law by embracing positivism and legal realism.10 The problem with this shift is that it makes law morally vacuous.11 Thus, Roosevelt’s tactical victory in the 1930s resulted in the strategic defeat of his world-view by the 1980s. This tactical victory resulted from a jurisprudential reorientation allowing increased federalization of state power,12 especially during the war.13 The strategic defeat resulted from relativism that ultimately deprived the left of its moral force, and pri7 “Laura Kalman ends her excellent history of legal realism at Yale by suggesting that legal realism failed. I have a different view. Legal realism has fundamentally altered our conceptions of legal reasoning and of the relationship between law and society. The legal realists were remarkably successful both in changing the terms of legal discourse and in undermining the idea of a self-regulating market system. All major current schools of thought are, in significant ways, products of legal realism.” Singer, at 467. 8 “Roosevelt’s use of the court-packing threat and the New Dealers’ impressive electoral success in 1936 forced the Court to alter our higher law without formally amending the Constitution.” J. Alexander Hershey, Broad Reality, Narrow Words, 67 Geo. Wash. L. Rev. 432, 445 (1999) (reviewing Bruce A. Ackerman, We the People: Transformations (1998)). 9 Id. 10 Of course it was not an overnight change and forewarnings had been happening since at least the 1880s. For an in-depth discussion of post-civil war roots of positivism, see Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 Vand. L. Rev. 1387, 1423 n. 139 (1997). 11 Randall P. Peerenboom, Rights, Interests, and the Interest in Rights in China, 31 Stan. J. Int’l L. 359, 382 n. 80 (1995). 12 Michael Wolf notes “the dramatic growth of federal power embodied in the Roosevelt administration’s multi-front war on the Great Depression.” Michael Allan Wolf, Looking Backward: Richard Epstein Ponders the “Progressive” Peril, 105 Mich. L. Rev. 1233, 1247 n. 54 (2007). 13 Kenneth Mack notes “New Deal and World War II-era expansions of federal power made more of these industries visible to civil rights advocates.” Kenneth W.

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vileged objective market arguments over supposedly subjective views of justice. What did the federal executive, newly empowered at the expense of both the states and the Congress, do? In the face of the greatest depression in history, even the ultimate in capitalist regimes was forced to react with a statist response to the problems of economic dislocation.14 Roosevelt created his “alphabet soup”15 of administrative agencies to do something, anything, to end the depression and prepare for the coming world war.16 The Social Security Administration,17 the Federal Deposit Insurance Corporation (FDIC),18 the Works Project Administration (WPA),19 and the Tennessee Valley Authority (TVA)20 are just some examples of federal executive initiatives, which would have been stricken by any prior court. Justifiably so, these programs were an unconstitutional extension of the executive power into the affairs of the legislature and of the federal power into fields reserved to the states. Thus, the real effect of the so-called revolution was the centralization of power in the hands of the federal executive, which was considered necessary to fight and to win the coming world war. Was it not Mack, Rethinking Civil Rights Lawyering and Politics in the Era Before Brown, 115 Yale L.J. 256, 345 (2005). 14 “[C]apitalism adjusted during the Great Depression to incorporate a more statist, interventionist approach . . .” Martin D. Carcieri, The South Carolina Secession Statement of 1860 and the One Florida Initiative: The Limits of a Historical Analogy and the Possibility of Racial Reconciliation, 13 St. Thomas L. Rev. 577, 599 (2001). 15 Melissa E. Murray, Whatever Happened to G.I. Jane?: Citizenship, Gender, and Social Policy in the Postwar Era, 9 Mich. J. Gender & L. 91, 97 (2002). 16 “[T]he New Deal tried to create a system for developing sufficient human infrastructure to facilitate the success of capitalism. The [Civilian Conservation Corp] was more than just a jobs program; it was a quasi-military socialization program that gave workers marketable skills.” Steven A. Ramirez, The Law and Macroeconomics of the New Deal at 70, 62 Md. L. Rev. 515, 571 (2003). 17 See Social Security Act, Pub. L. No. 74–271, 49 Stat. 620 (codified as amended in scattered sections of 42 U.S.C.). 18 Ramirez, supra note at 543. 19 “Between 1932 and 1938, New Deal regulatory reforms included such federally sponsored jobs programs as the Works Progress Administration and the Civilian Conservation Corps; the Agricultural Adjustment Act and other farm programs; the Emergency Banking and Bank Conservation Act; the establishment of the Securities and Exchange Commission and the Federal Deposit Insurance Corporation; the Federal Emergency Relief Administration that became the precursor to modern social security, and many others.” Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 Md. L. Rev. 503, 634 (2007). 20 Deborah Groban Olson, Fair Exchange: Providing Citizens with Equity Managed by a Community Trust, in Return for Government Subsidies or Tax Breaks to Businesses, 15 Cornell J.L. & Pub. Pol’y 231, 241 (2006).

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obvious to the elites that the Great Depression would inevitably trigger a global war to destroy surplus production and employ the unemployed? It was obvious to the communists – for that is exactly what Marxism predicts:21 cyclical economic crashes “corrected” – by war.

II. Legal Realism22 “We are all Legal Realists now. Or are we?”23 The principal doctrinal manoeuvre needed to take the first step of the socalled “revolution” in judicial power24 was a rejection of legal formalism.25 21 “The temporal predictive nature of Marxism, its universal narrative of progress, and its belief in objective truth on materialist bases clearly separates Marxism from post-modernism. This distance functions in two dimensions. Marxism inhabits a millenarian temporality, oriented toward a future of progressive political achievement and fulfillment. Jameson is therefore unsympathetic to postmodernism’s repudiation of time; he views it with considerable suspicion as ‘the sequel, continuation, and fulfillment of the old fifties ‘end of ideology’ episode.’ Marxism also focuses on the relationship between objective social conditions and ideological cultural formations. From the outset, therefore, Jameson is hostile to postmodernism’s evisceration of nature and its tendency toward schizophrenic nominalism.” Robert Post, Postmodern Temptations, 4 Yale J.L. & Human. 391, 394–95 (1992) (reviewing Fredric Jameson, Postmodernism, or the Cultural Logic of Late Capitalism (1991)). 22 “In agreement with Bentham and against Blackstone the group of legal writers called American legal realists maintain that judges do in fact make law. However, against Bentham they maintain that judges should take a hand in making law, and against both Bentham and Blackstone they maintain that judges must be makers of law – and by ‘must’ is meant that judges necessarily make law, that this is intrinsic to the very process or activity of judging.” Theodore M. Benditt, Law as Rule and Principle 1 (1978). 23 Singer, at 467. 24 “The terms ‘switch in time’ and ‘judicial revolution’ refer to a series of judicial decisions in, which the Court sustained the constitutionality of economic regulatory legislation. The so-called ‘switch” began on March 29, 1937, when the Court, by a vote of five-to-four, upheld the constitutionality of a Washington state minimum wage law for women in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), even though the statute was virtually indistinguishable from a New York minimum wage law that the Court had struck down by its five-to-four vote the previous June in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). In other decisions on March 29, the Court similarly signaled its amenability toward economic reform legislation, although the willingness of some or all of the Court’s most conservative Justices to join in these decisions helps to belie the concept of a ‘revolution’.” William G. Ross, When Did the “Switch in Time” Actually Occur?: Re-discovering the Supreme Court’s “Forgotten” Decisions of 1936–1937, 37 Ariz. St. L.J. 1153, 1153 n. 1 (2005) (citations omitted). 25 “[F]ormalism refers to an alleged philosophical view of law as being in its essence autonomous, objective, complete, coherent, and deductive. As a mode of ad-

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Legal realism proposed that law is not what men in black robes say, but rather what happens in practice.26 Legal realism had a fairly strong Marxist streak.27 It pointed out the vacuity of the statements of the ruling class28 and attributed psychological or class based determinants29 to judicial decisions. Case method learning was no longer used to illustrate systemic coherence, but to illustrate internal contradictions of the system.30 In place of the supposedly empty rationalizations31 of the formalists,32 legal realism judication, formalism refers to a judicial tendency to apply existing legal rules literally, mechanically, and without reference to their purposes or to public policy. Neither of these two versions of formalism is the sort referred to as the ‘new formalism’ of contract adjudication; indeed, the new formalism conflicts with both these ideas.” Sidney W. Delong, Placid, Clear-Seeming Words: Some Realism About the New Formalism (With Particular Reference to Promissory Estoppel), 38 San Diego L. Rev. 13, 18–19 (2001). 26 “Antiformalism, or ‘realism,’ views law as a matter of purpose and policy. As a general view of law, realism is instrumentalism, law understood as a means to an end instead of an autonomous complex of norms governed by its own internal logic. As a mode of adjudication, realism is a tendency to make legal consequences turn on the court’s view of the social policies relevant to legal enforcement and of the anticipated effects that different rules will produce. Casting its eye more broadly than does formalism, realist adjudication introduces more uncertainties: fewer cases are resolved on summary judgment.” Id. at 19–20. 27 Morton J. Horwitz, Mark Tushnet, Legal Historian, 90 Geo. L.J. 131, 133 (2001) (stating “courts were part of the executive committee of the ruling class and that law was a mere reflection of the class interests of those who ruled”). 28 “The legal realists, Tushnet explained, demonstrated the indeterminacy of legal doctrine, which meant that rules and precedents could be manipulated to produce often contradictory legal outcomes. The result was, the realists argued, that the explanation for these outcomes must be sought outside of the system of legal doctrine, in the sociology of power.” Id. at 131–32. 29 See id. at 132–33. 30 Singer, at 467 (stating “realists could use the case method to show, not that cases were consistent applications of general principles, but that they were inconsistent applications of competing principles”). 31 Rather than reason, that is as rationale, realism sees legal reasoning as posthoc rationalizations to justify power not as predictive statements of what will, or at least should, always happen. “[T]he rule-of-law [rational] arguments are indeterminate.” Pierre Schlag, The Problem of the Subject, 69 Tex. L. Rev. 1627, 1682 (1991). 32 “[F]ormalist strategies . . . entail three commitments: to promoting compliance with all applicable legal formalities (whether or not they make sense in the individual case), to ensuring rule-bound law (even if application of the rule, statutory or contractual, makes little sense in the individual case), and to constraining the discretion of judges in deciding cases. Thus understood, formalism is an attempt to make the law both autonomous, in the particular sense that it does not depend on moral or political values of particular judges, and also deductive, in the sense that judges decide cases mechanically on the basis of preexisting law and do not exercise discretion in individual cases. Formalism therefore entails an interpretive method that

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proposed either – overtly – psychological critiques of the viewpoints of the ruling class or – almost always covertly – pointed and incisive critiques of the failures of the ruling class as a class. Lest we forget, the American ruling class in the 1930s presided over the unthinkable: starvation in America,33 the granary of the world. The obvious implication of the ruling class’s failure was the necessity and desirability of radical transformation.34 These criticisms were explicitly expressed by the legal realists35 and, more cogently but with less effect, by their successors in critical legal studies (the crits).36 After the war, the realists held state power by compromising their pre-war radical principles. Their successors, the crits, never held state power – but, they also never compromised their principles. Realism is a functionalist theory.37 According to functionalism, ideas and institutions form and are best understood as a function of their roles.38 Functionalism is true as far as it goes, but it does not go far enough. Rearelies on the text of the relevant law and that excludes or minimizes extratextual sources of law. It tends as well to favor judicial holdings that take the form of wide rules rather than narrow settlements of particular disputes.” Cass R. Sunstein, Must Formalism Be Defended Empirically? 66 U. Chi. L. Rev. 636, 638–39 (1999). 33 Lisa Guerra, Modern-Day Servitude: A Look at the H-2a Program’s Purposes, Regulations, and Realities, 29 Vt. L. Rev. 185, 189, 197 (2005). 34 William J. Aceves, Critical Jurisprudence and International Legal Scholarship: A Study of Equitable Distribution, 39 Colum. J. Transnat’l L. 299, 312 (2001) (“[C]ritical jurisprudence suggests there must be a fundamental transformation of existing norms, rules, and institutions to remedy the consequences of marginalization.”). 35 “The realists (or some of them, at any rate) maintain that by approaching the study of law from the direction of the judicial process, we can gain insights that will yield a view of law quite different from the picture presented or implied by such writers as Blackstone and Bentham.” Benditt, supra at 2. 36 “[The dominant] norms, rules, and institutions consciously and unconsciously perpetuate the interests of dominant groups at the expense of marginalized groups . . . [S]ubstantive positions may be covertly privileged in several significant ways. ‘We can structure our discourse so that the privileged position is the (normative) rule and the departures are the exceptions . . . once any position is covertly normatively privileged, it becomes descriptively privileged because we regularly conflate the ideal and the actual in legal thought, treat legal principles both as imposed on the social order and as observed, as derivative from or immanent in the order.’ . . . [T]he privileged position of white America is embedded within the formal and informal institutions of American society and that such institutions perpetuate the subordination of racial minorities.” Aceves, supra note 34 at 312. 37 Legal realism “is a form of functionalism or instrumentalism. The original realists sought to understand legal rules in terms of their social consequences.” Singer, supra note 3, at 468 (citation omitted); Craig Allen Nard, Empirical Legal Scholarship: Reestablishing a Dialogue Between the Academy and Profession, 30 Wake Forest L. Rev. 347, 358 (1995). 38 Nard, id.

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lism was also a pragmatic theory,39 attempting to unify law and the other social sciences.40 Functionalism and pragmatism are two of the reasons realism was so easily co-opted into the system it had, apparently, so radically critiqued. A third reason for the rapid and complete co-optation of this once radical theory is that realism is a nuanced intermediate position that simultaneously reflects two complementary poles of legal thought – positivism and naturalism.41 Realism has descriptive power that cuts both ways. The 1930’s radicals became 1950’s reactionaries, seize state power and go on to lead America to wars for resources in Korea and Vietnam. That is not a revolution. This is why the “new left” decisively rejected the “old left” (from 1930 to 1945)42 and part of why the new left did not take state power. Progressive state power, however, can and must be used to stop reactionary state power. The “new left” of 1968, entirely marginalized by the collapse of Soviet socialist imperialism in 1989 and by the 9/11 terrorist attacks, can be criticized for failing to take state power and failing to prevent wars like Iraq. The sin of the old left was compromise. The sin of the new left is impotence. Whatever sins the next left causes, it can and should, both see and avoid, the errors of its parents’ and grandparents’ generations. Those who forget history are condemned to repeat it.43

III. The Realist Rejection of “Formalism” The principal target of legal realism was formalism – that universal44 centrepiece of modern American legal thought.45 Formalism as a talisman 39

“The life of the law has not been logic; it has been experience.” Oliver Wendell Holmes, Jr., The Common Law 5 (Mark DeWolfe Howe ed., Harvard University Press 1963) (1881). 40 The realists “attempted to unify law and the social sciences. They believed that this knowledge would enable them to reform the legal system to achieve efficiency and social justice.” Singer, supra note 3, at 468–69 (citation omitted). 41 Positivism and naturalism are usually juxtaposed as contradictory. They are not. See Aristotle, Politics, available at: http://classics.mit.edu/Aristotle/politics.5. five.html. 42 See, e. g., Philip P. Houle, Eminent Domain, Police Power, and Business Regulation: Economic Liberty and the Constitution, 92 W. Va. L. Rev. 51, 109–10 (1990); Francesca Polletta, The Structural Context of Novel Rights Claims: Southern Civil Rights Organizing, 1961–1966, 34 Law & Soc’y Rev. 367, 398 (2000). The “old left” refers to the radical thinkers of the 1930s who became the establishment after the war. The “new left” refers to the radicals of 1968 and thereafter who broke from the “old left” over the Vietnam War, desegregation, and the women’s rights movement. 43 George Santyana, The Life of Reason 9 (Dover 1980) (1905). 44 Universality is a key feature of modernity, and natural law is a universalist theory and thus open to the post modern critique of modernity: “[T]he radical self-

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could include anything.46 In the strictest sense, it included the idea of Platonic idealism. Platonic idealism is the idea that the world of things is a reflection of the world of ideas, that thoughts create reality and that reality is a reflection of rational forms (syn. archetypes, eidos; in the mind of God. When the law steps out of line with that rationality, natural forces will strike it down.47 Criticizing “formalism” is a way to attack the method of natural law theories48 without having to address the fact that there are compelling arguments for a qualified theory of natural law and natural justice.49 By focusing the debate not on positivism versus naturalism, but rather on formalism versus realism, the old left ignored the ultimate questions and set itself up for reactionary backlash. conception of postmodernism arises from its claim that we must break with the kind of ‘big’ questions, which have traditionally motivated the intellectual projects of the previous epoch. It is nor so much that modernism arrived at the wrong answers, but that its questions were unanswerable; they have been too broad, too abstract, riddled with a distinctive mix of naive humanism, an unwarranted faith in science and an over-optimistic view of the capacity of language to capture and share knowledge.” Alan Hunt, The Big Fear: Law Confronts Postmodernism, 35 McGill L. J. 508, 509 (1990). 45 “Sometimes it seems as if there is only one story in American legal thought and only one problem. The story is the story of formalism and the problem is the problem of the subject. The story of formalism is that it never deals with the problem of the subject. The problem of the subject is that it’s never been part of the story.” Schlag, supra, at 1628. And the idea of an existing center is anti-postmodernism, for postmodernism denies the idea of any center’s existence. 46 “[F]ormalism can also mean ‘textualism,’ the tendency to make legal obligation depend upon express language occurring in specified circumstances. To a textualist, contract formation and content depend upon the performance of specific speech acts, such as ‘offer,’ ‘acceptance,’ and ‘promise.’ It is this sense of ‘formalism’ as textualism that is enjoying a judicial vogue. However, textualism is a strategy rather than a philosophy and as such is equally compatible with what is usually called ‘realism’.” Delong, supra at 19. 47 See, e. g., Sophocles, Antigone, available at: http://classics.mit.edu/Sophocles/ antigone.html. 48 “Blackstone thought that anything that is properly thought of as human law is in accordance with the law of nature, which is dictated by God and ‘is binding over all the globe, in all countries, and at all times.’ A judge’s task, thought Blackstone, is to ascertain what this law is and to apply it to the case before him. Judges in no sense make the law.” Benditt, supra at 1. 49 “The notion of positive law presented no great problem. [Hugo] Grotius is very brief on this point. The ius voluntarism is so named because its origin is in the will of men or God. The ius civile stems from the will of the sovereign. It consists of the sovereign’s prohibitions and precepts. Its duration is dependent on his will. [Samuel] Pufendorf is more explicit. Every positive law is grounded on the authority of a superior. Human positive law consists of the commands of the sovereign. It is, indeed, nothing but his will through, which he prescribes how the subjects are to act.” Karl Olivecrona, Law as Fact 9 (Stevens & Sons 1971) (1939).

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This, however, is not the only sense of “formalism.” It can, among other things, be seen as a synonym for legalism, which is much more easily critiqued than theories of natural justice, and without the nagging question that positivism50 raises – if there are no theories of morality, how can there be any justice?51 Indeed, post-modernism,52 which grew from the same relativist roots as realism, is criticized and rejected53 for that same reason.54 Not only does post-modernism fail to tell us how to properly proceed with normative inferencing, it says normative arguments are impossible. So while it may allow us to ask pointed questions, post-modernism gives us no answers. Identity politics, individualist and subjectivist, doomed the new left to incoherence, both in theory and in practice. 50 “Bentham . . . maintained that a good deal of law is in fact made by judges, though he thought that it should not be. All law that regulates the behavior of man in society, he held, is of human creation, and it should all be made by the legislature in accordance with the principle of utility. So according to Bentham, too, judges are to find the law – in legislative enactments only – and not make it.” Benditt, supra, at 1. 51 Catharine MacKinnon stated “I do know this: we cannot have this postmodernism and still have a meaningful practice of women’s human rights, far less a women’s movement.” Stephen M. Feldman, An Arrow to the Heart: The Love and Death of Postmodern Legal Scholarship, 54 Vand. L. Rev. 2351, 2357 (2001). 52 “Postmodernism assumes that different logics or paradigms, that is, different systems of discourse with their distinctive value axioms can co-exist in the same social space. It is this, above all, that distinguishes postmodernism from enlightenment modernism. The enlightenment modernist speaks of knowledge (in the singular) rather than discourses (in the plural). The Enlightenment view rests on temporal rather than spatial metaphors. That is to say, the Enlightenment view sees knowledge as a succession of paradigms through time. One system of knowledge succeeds another in a progressive developmental sequence. This is the march of reason in history from . . . theology to metaphysics to positivism. Meaning arises from the relative positions of the fragments in the constellation.” Peter Murphy, Postmodern Perspectives and Justice, in Postmodernism and Law 117, 118–19 (Dennis Patterson ed., 1994). 53 “Given law-school postmodernism’s epistemo/ontology of juvenile anti-realist agnosticism, its commitment to Gadamerian and/or Derridean notions of linguistic indeterminacy, its monomaniacal dedication to centrifugal end- justifies-the-means Lefty politics, its abhorrence of commonly recognized conceptions of neutral principle, its concomitant disrespect for the very notion of truth, and its inextricably intertwined obsession with names and propensity for linguistic doublespeak . . . Arrow also offers speculation about the way in, which the postmodernists’ ultimate contribution to American law schools is likely to be assessed – but cautions (as is appropriate under the circumstances) that you’ll have to find it in a footnote.” Dennis W. Arrow, Spaceball (Or, Not Everything That’s Left Is Postmodern), 54 Vand. L. Rev. 2379, 2379 (2001). 54 “[P]ostmodernism engenders political quiescence.” Feldman, supra note 51 at 2357 (Listing critiques of post-modernism and trying, unsuccessfully, to meet them).

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Legalism,55 which the realists quite correctly criticized, is the rigid inflexible application of black letter law without regard to the practical consequences. Legalism was seen, only somewhat accurately, as one of the aggravating factors of the economic dislocation caused by the Great Depression. Rather than call into question the capitalist system, the ruling class decided to deflect criticism toward the institutions that arise out of and administer capitalism. Administrative reforms56 prevented political revolution, as the judiciary ceded on issues preventing federalization of power. The attack on legalism was exaggerated to direct attention toward reformation of the system rather than its overthrow. Communists57 were not the only threat: populists, such as Huey Long – who today would be considered fascist58 – were probably the greater threat to the liberal republic. The critique of the legal realists, that the old guard judges59 were using rigid or manipulable,60 formalism,61 and (supposedly) unscientific natural 55

“Legalism is the mentality that insists on precise definitions and operationalized norms . . .” Jeremy Waldron, “Dead to the Law:” Paul’s Antinomianism, 28 Cardozo L. Rev. 301, 326 (2006). Legalism equates justice and law. 56 See, e. g., Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal, 32 Ariz. St. L.J. 941 (2000); Jamison E. Colburn, Habitat and Humanity: Public Lands Law in the Age of Ecology, 39 Ariz. St. L.J. 180, 181 n. 155 (2007). 57 Inevitably the system’s reformers were accused of being either fascist or communist. “In the 1930s Llewellyn produced no fewer than six cutting-edge, legal realist, law review articles devoted to contract. In the 1940s legal realism, in light of the twin threat of fascism and communism, was under attack as moral relativism and a threat to the idea of the rule of law.” Curtis Nyquist, Llewellyn’s Code As a Reflection of Legal Consciousness, 40 New Eng. L. Rev. 419, 421 (2006). 58 For example: “Huey Long created anxiety about fascism in the American South, Father Coughlin’s radio broadcasts seemed to inspire many listeners, and in 1939, 22,000 Americans rallied in Madison Square Garden in support of the German-American Bund.” Joannie Chang, Jennifer I. Goldberg, & Naomi J. Schrag, Cross-Border Charitable Giving, 31 U.S.F. L. Rev. 563, 569–70 n. 36 (1997). 59 “For the Old Guard majority of the Supreme Court, creating obstacles to national power remained the central obsession; Hand, by contrast, was ready to accept national control of the national economy well before the justices were ready to loosen the chains on Congress.” Gerald Gunther, Learned Hand: The Man and the Judge 460 (1994). 60 “Without recognizing how power-ridden and manipulable these materials are, formalists grant them an authoritative and determinative status.” David S. Caudill, Disclosing Tilt: A Partial Defense of Critical Legal Studies and a Comparative Introduction to the Philosophy of the Law-Idea, 72 Iowa L. Rev. 287, 310 (1987). 61 “Where most observers of the Socratic method have associated it with the indoctrination of students into a formalist legal ideology . . . just as with the Socratic manipulations of Langdellian formalism, to the students, the game appeals precisely in the way it ‘feels’ like law.” Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev. 973, 1026 (2005).

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law,62 had two effects. First, it allowed federalization of power through reinterpretation. Second, legal realism empowered judicial interpretations, which permitted the New Deal, and in turn, preserved the capitalist system from both communism, e. g., the Communist Party, U.S.A., and fascism, such as Huey Long, both real risks in the 1930s.63 Just as critiques of positivism have – wrongly – conflated it with realism and formalism,64 realists have conflated natural law, natural justice, and formalism.65 The critique of natural law as formalism allowed for a re-conceptualization of law’s interpretation and a federalization of power. There are solid arguments, however, for scientific theories of natural law and natural justice.66 Moreover, positivism is amoral and did serve fascism in Europe.67 Yet, the methodological critiques of the old left legal realists were eventually shown to be inapposite because the realists did not inquire deeply enough into the sources and nature of power. The old left did not dare to reach the ugly conclusion that late capitalism regularly goes to war for resources,68 market-share, to keep Third World labour cheap, and to occupy 62

“[C]onceptualist common-law jurists like Langdell and Williston gave no support to constitutional ‘liberty of contract,’ which they associated with an outmoded and unscientific natural law jurisprudence.” Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 Wake Forest L. Rev. 473, 502 (2003). 63 “In the 1930s and 1940s when the [Administrative Procedure Act] was debated, much in the United States was uncertain. Many believed that communism was a real possibility, as were fascism and dictatorship.” George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1559 (1996). 64 Anthony J. Sebok, Misunderstanding Positivism, 93 Mich. L. Rev. 2054, 2054 (1995). 65 See, e. g., Grey, supra note 62, at 506. 66 See, e.g., Aristotle, supra note 41 (explaining that natural law and positive law are complementary; positive law is law by convention, natural law is that law, which logically cannot be other than it is); Thomas Hobbes, Leviathan available at: http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html (explaining that natural law as law of the jungle, natural justice as moral law, positive law as convention established by social contract). Hobbes and Aristotle each point out the complementary character of positive and natural law but in somewhat different ways. 67 “Ever since H.L.A. Hart’s famous debate with Lon Fuller over the charge that German legal positivists were partly responsible for the rise of Hitler, positivism has been the target of frequent attacks by American lawyers.” Sebok, supra note 64. 68 The War in Iraq should make this obvious though an examination of Vietnam, Korea and both World Wars yields the same conclusion. Economic downturn sparks wars. The U.S. went to war in Iraq for economic reasons: (1) to maintain the monopoly of the dollar as reserve currency particularly in international oil contracts;

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and distract the unemployed. Not daring to reach those conclusions, they asked the wrong questions, focusing on futile reforms with the effect of paralyzing and anaesthetizing real resistance. They saw the symptoms of prescientific theories of law, but did not see that those symptoms were only a possible and not a necessary outcome of normative legal theory. They were thus ousted by the New Left, but that ouster resulted in the New Right, seizing power by 1980 at the latest. The new left’s post-structuralism69 allowed it to question power and hierarchy, but did not allow it to present a cogent, broad, and united-front challenge to power and hierarchy, because mass movements were almost insince international oil contracts are denominated in dollars, if the U.S. wants to reduce the price of oil, it can do so anytime it wants by devaluing the dollar; (2) to keep the price of oil low, which it had been thanks to the Iran-Iraq wars; (3) to secure guaranteed access to Iraqi oil fields; and (4) to obtain military bases for operations against other regional oil producers. [T]he United States Dollar has served as the global reserve currency. “This has given the United States enormous power and special privileges, which it has been using ever since to advance its own interests; it has given the United States the power to manage the global economy, establish the rules, dominate the [International Monetary Fund] in, which an 85% vote is required for action to be taken and with 17.5% of the votes the United States can effectively veto any action, and on that basis the United States dominates and practically owns the [International Monetary Fund], they have the last word and have achieved the imposition of the global economic order, which we now must suffer.” Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 Penn St. Int’l L. Rev. 497, 529 (2006). “A few years ago Iraq started selling its oil in Euros instead of U.S. dollars, resulting in the rise of the Euro against the dollar. Another allegation, made by the New York Times, was the fact that France’s military complex had been selling military equipment to Iraq and was poised to expand those sales.” Sophie Clavier, Contrasting Perspectives on Preemptive Strike: The United States, France, and the War on Terror, 58 Me. L. Rev. 566, 582 (2006). That is, not merely oil extraction, but also arms export fuel gulf wars. “The possibility that the oil pricing system might be shifting towards the euro appears to have been foreclosed by the invasion of Iraq.” Alan W. Cafruny, A Ruined Fortress? Europe and American Economic Hegemony, 9 Conn. J. Int’l L. 329, 333 (2004). “The deciding factor was when Saddam Hussein pegged the dinar to the dollar bloc’s commercial rival, the euro. Something more drastic had to occur: a land grab, 21st century-style. However, it could not look like a land grab. Bombing Iraq to get rid of the imminent threat of Iraqi [Weapons of Mass Destruction] became the excuse du jour. When the [Weapons of Mass Destruction] couldn’t be found, another excuse was offered: bombing Iraq into democracy.” Philippa Winkler, The War Against Iraq: Whose Ends, Whose Means? 9 NEXUS 163, 167 (2004). 69 For the best understanding of the relation of (post) structuralism and law, see generally Michel Foucault, The Eye of Power, in Power/Knowledge: Selected Interviews and Other Writings (Colin Gordon ed., 1980), available at: http://foucault. info/documents/foucault.eyeOfPower.en.html. See, e. g., Jacques Derrida, Writing and Difference 278–94 (Alan Bass trans., University of Chicago Press 1978) (1967).

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stantly atomized through post-modern individualism or deprived of normative impetus by relativism. Rather than uniting and fighting as a group, the crits splintered apart into feminists, critical race theorists, lat-crits, and even irrelevancies such as “law & literature.”70

C. Post War: Co-opting Radicalism to Serve Global Hegemony With the end of World War II, the overtly fascist powers, with the exception of Spain71 and Argentina,72 were defeated, which put positivism in a bad position.73 Positivism, which enabled the middle class to loyally and unquestioningly serve the interests of the élites as cogs in a Weberian bureaucracy74 of war, became an embarrassing liability to the victorious powers, but also served as a potential lever against the interests of the working class. Because the capitalist powers themselves had also rejected naturalist theories of law,75 it was not possible, or necessary, for them to perform a second about-face so quickly and reject the positivism, which had earlier justified and empowered concentration of power in the federal executive. How was the vacuum created by the supposed death of naturalist theories of the law and the failure of positivism to provide moral points of resistance within the formerly overtly fascist states filled? Given the global dominance of the United States, the covert Marxism of the legal realists was no longer apposite to the interests of any segment of the ruling class. A theory that had permitted the executive to aggrandize the power needed to prosecute a 70 See Jane B. Baron, Law, Literature, and the Problems of Interdisciplinarity, 108 Yale L.J. 1059, 1083 (1999). 71 MSN Encarta argues Spain was only quasi-fascist. Facism-MSN Encarta, http://encarta.msn.com/encyclopedia_761568245_5/Fascism.html That argument ignores overt and covert Spanish aid to Nazi Germany along with the fact that Franco was known as “El Cuadillo” (the leader, a direct translation of Führer, Duce into Spanish). Francisco Franco-MSN Encarta, http://encarta.msn.com/encyclope dia_761572941_2/Francisco_Franco.html. 72 Paul H. Lewis, Was Perón a Fascist? An Inquiry into the Nature of Fascism, 42 J. Pol. 242 (1980). 73 “It seemed quite natural to Fuller to attribute the rise of fascism to the European embrace of positivism: ‘[Legal Positivism] played an important part . . . in bringing Germany and Spain to the disasters, which engulfed those countries.’ ” Sebok, supra note 64, at 2059. 74 Max Weber, Wirtschaft und Gesellschaft, 650–78 (1956). See generally David M. Trubek, Max Weber’s Tragic Modernism and the Study of Law in Society, 20 Law & Soc’y Rev. 573 (1986). 75 See, e. g., H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 594 (1957).

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global war, now needed to adapt itself to permit that executive to dominate the globe: and it did so with an astonishing alacrity. The first doctrinal move, which occurred in the 1950s as the last of the die-hard crypto-Marxists failed or were isolated by McCarthyism, consisted in the elaboration of a doctrine of legal process76 in conjunction with interest balancing.77 Rather than rigidly adhering to supposedly useless78 and inflexible or manipulable79 rules of black letter law preordained by an archaic legislator, the lawyer and judge were seen as engaged in a cooperative task of elaborating standards and guides.80 The law consisted of competing interests, sometimes expressed as rights, sometimes as privileges, which needed to be balanced against each other. The task then was simply one of determining the correct “factors” to be balanced and the correct “weight” to be given to them, taking into account policy objectives. Thus, the bar could execute its functions efficiently, and ignore the uncomfortable pre-war question – how and why had capitalism failed catastrophically, necessitating a second global war in as many generations? That was the central question of the last century. So, instead of challenging the system, the bench and bar became the technocrats servicing the machine.81 The mechanization of the industrial 76 “The ‘Legal Process School,’ as Bruce Ackerman has termed it, was concerned with the institutional structure of government, and emphasized that judges often should defer to the policy choices made by other governmental actors in deciding cases.” Rodger D. Citron, The Nuremberg Trials and American Jurisprudence: The Decline of Legal Realism, the Revival of Natural Law, and the Development of Legal Process Theory, 2006 Mich. St. L. Rev 385, 387. 77 See, e. g., Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 Mich. L. Rev. 510 (1987); Notes, Specifying the Procedures Required by Due Process: Toward Limits on the Use of Interest Balancing, 88 Harv. L. Rev. 1510 (1975). Legal process and interest balancing were compatible and allowed the pre-war radicals to become post war administrators of global hegemony. 78 “[T]he realists proclaimed the uselessness of both legal rules and abstract concepts. Rules do not decide cases; they are merely tentative classifications of decisions reached, for the most part, on other grounds.” Singer, supra note 3, at 469 (citations omitted). 79 “[J]udges, far from being bound by rules, are free either to choose among rules where more than one applies – perhaps not arbitrarily, but by their own lights-or to decide cases on their own where there are no applicable rules at all.” Benditt, supra note 22, at 4. 80 That is the theory of constructivism applied to law. See generally Gunther Teubner, How the Law Thinks: Toward a Constructivist Epistemology of Law, 23 Law & Soc’y Rev. 727 (1989). 81 Ward Churchill, Some People Push Back: On the Justice of Roosting Chickens, Ratville Times, Sept. 12, 2001, available at: http://www.ratical.org/ratville/CAH/ WC091201.html.

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age had created enormous wealth, at least to the first world. Mechanization would be applied to judging disputes via jurimetrics82 – and then, to dropping napalm on poor, brown skinned people.

I. Law and Economics The second and more important doctrinal move in the taming of legal realism as an instrumentality of the very capitalism, which it had only recently, if briefly, questioned,83 was the rise of economic analyses of the law. Legal process interest balancing is the root of law and economics: if there are no valid universal moral standards – a position with, which I disagree – how are judges to determine the “weight” of the “factors” which they balance? The answers are simple: the use of “cost benefit analysis” or utilitarianism.84 The application of law and economics as a resolution to the problem of legal indeterminacy created by legal realism lends itself to criticism as an over-simplification; however, economic arguments can be a compelling legal rationale – especially in the face of supposed linguistic indeterminacy. It is not at all surprising, though rather disgusting, that the leading capitalist state equates justice with market transactions.85 The rise of law and economics seemed to seal the doom of the few remaining realist crypto-Marxists. Yet that did not happen. Instead, a new generation of critical scholars drew some lessons from realism and came back with radical critiques. Why? 82 The furthest advance of the technocratic vision in the law schools was jurimetrics, which proposed that quantitative analysis of judgments would lead to a better understanding of the correct decisions. See, e. g., Julius Stone, Man and Machine in the Search for Justice, 16 Stan. L. Rev. 515, 515 n. 1 (1964). 83 “A major goal of the legal realists was to undermine laissez-faire ideology by attacking the idea of a self-regulating market system based on free contract, which operated largely outside state influence and control. In the preclassical period during the first half of the nineteenth century, almost all of law was incorporated into the contractual model. However, freedom of contract was a dim dream; rather, the market was heavily regulated by custom and law. All private relationships included implicit obligations that were enforceable by the state.” Singer, supra note 3, at 477. 84 “The legal realists claimed that judges could not decide cases by logical deduction from general principles of liberty and property; law and legal decisions require social policy judgments. But, as unelected figures, what tools can judges use to make those policy judgments? Most realists recommended that judges adopt some form of utilitarianism or cost/benefit analysis. As Holmes explained in The Path of the Law, judges have a duty of weighing considerations of social advantage.” Felix Cohen referred to this method, as does Professor Kalman, as ‘functionalism’.” Id. (footnotes and citations omitted). 85 See, e. g., Richard A. Posner, The Economics of Justice (1981).

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The great flaw in combining legal process interest balancing with law and economics is the inability to comprehend that capitalism has predictable cyclical downturns that generate unemployment and result in war.86 Marxist legal perspectives in America would almost certainly have died a quiet shameful death were it not for the Vietnam War. The business élite expected Vietnam to be another World War II, or at worst another Korea. The supposedly neutral theories either of “pure” positive law, such as Kelsen,87 or law and economics,88 or of legal process interest balancing89 found themselves confronted with legal challenges that they could not address or comprehend within their own terms. This was due largely to the advancement of the civil rights movement,90 the women’s movement, and the anti-war movement.91 Economically speaking, the Vietnam War was a marvellous profit making opportunity, as shown by trade union support for that war.92 Yet global communication sparked mass protest, not only within the U.S., but also among its supposed allies. How could legal process93 or law and economics propose responses to the civil disobe86 But see D.W. MacKenzie, Does Capitalism Require War? Daily Article, Apr. 7, 2003, http://www.mises.org/story/1201. Unfortunately, MacKenzie ignores that arms sales are profitable and that wars regularly happen at the trough of the business cycle. 87 See, e. g., Hans Kelsen, Pure theory of Law (Max Knight trans., University of California Press 1967) (1934). 88 See generally R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). 89 See, e. g., Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, in The Canon of American Legal Thought 255 (David Kennedy & William W. Fisher III eds., 2006). 90 Stanford Encyclopaedia of Philosophy, Civil Rights, http://plato.stanford.edu/ entries/civil-rights/. 91 Mark Barringer, The Anti-War Movement in the United States, in Encyclopedia of the Vietnam War: A Political, Social, and Military History (Spencer C. Tucker ed., 1998), available at: http://www.english.uiuc.edu/maps/vietnam/antiwar.html. 92 Lane Kirkland, President of the AFL-CIO, staunchly supported the U.S. war in Vietnam. William Serrin, Lane Kirkland, Former A.F.L-C.I.O. Head, Dies at 77, N.Y. Times, Aug. 15, 1999. 93 “ ‘[P]luralism’ is often associated with process theories of democracy, which scholars like Robert Dahl articulated during the 1950s and 1960s. Rooted in models of equilibrium drawn from economics, process theories sought to create a conception of a neutral political process, free of any substantive commitment to particular values such as the celebration of diversity, in, which different groups interact, compete, or trade ends. This common association of ‘pluralism’ with process theories is misleading. In the first half of the twentieth century, theories of pluralism often recognized diversity not merely as an empirical fact, something that we must tolerate grudgingly or try to reduce, but as a constitutive element of American democracy” Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 Fla. St. U. L. Rev. 189, 190 (2001) (footnote omitted).

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dience,94 protest marches,95 and assassinations96 that characterized America in the 1960s? They could not and did not. And thus, a second generation of realists, the critical legal studies movement, arose.97 The Marxist influence on critical legal studies is far more evident, and even occasionally overt,98 as compared to legal realism.99 What follows is a discussion of how the challenges presented by critical legal studies influenced the doctrinal methods of legal process interest balancing.100

II. Legal Process Interest Balancing The principle method of legal process101 is the balancing of competing interests of the plaintiff and the defendant, and possibly also of third parties. Balancing tests are generally proposed as the method of decision by 94 See e. g., Toonari, Montgomery Bus Boycott, Africanaonline, http://www.afri canaonline.com/montgomery.htm. 95 See, e. g., J. Gregory Payne, May 4 Archive, http://may4archive.org/index. shtml; The New York Times on the Web, Past Convention Coverage, http:// www.nytimes.com/library/politics/camp/whouse/convention-ra.html#1968. 96 Famous political assassinations of the 1960s include President John F. Kennedy, Senator Robert Kennedy, Martin Luther King Jr., Malcolm X, and Medgar Evars, among others. See, e. g., JFK Lancer, http://www.jfklancer.com/Political. html. 97 “Critical jurisprudence engages in a deconstruction of law’s empire – the monolithic set of norms, rules, and institutions that constitute the domestic legal system. It challenges the formalism and essentialism that permeate the liberal paradigm. This movement has revealed the indeterminacy of law as well as the manner in, which power asymmetries have marginalized countless groups. Proponents of critical jurisprudence call for the development of national policies to remedy the consequences of subordination politics.” Aceves, supra note 34 at 301–02 (footnote omitted). 98 See generally, Mark Tushnet. 99 “Critical jurisprudence is based upon the various critical approaches to the study of law and legal process, including Critical Legal Studies, Critical Race Theory, Critical Feminism, and LatCrit Theory. This movement reveals the indeterminacy of law as well as the manner in, which power asymmetries have marginalized countless groups.” Aceves, supra note 34 at 299. 100 “Through deconstruction, critical jurisprudence reveals that power asymmetries, marginalization, and subordination permeate the international system.” Id. at 308. 101 “[L]egal-process theory [is] a jurisprudential movement emerging from teaching materials developed by Harvard Law School Professors Henry M. Hart, Jr. and Albert M. Sacks, with important contributions from their colleague Lon L. Fuller.” Joseph A. Page, Torts Teaching: From Basic Training to Legal-Process Theory: Dominick Vetri, Tort Law and Practice, 25 Seattle U. L. Rev. 127, 131 (2001) (footnote omitted).

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realists because of the legal realists’ rejection of binary102 “bright-line” categorical analyses in favour of multivariate standards.103 However, the realist critique of bright-line rules was in fact overstated. Bright-line tests are at times ill-suited and at other times well-suited to achieve substantive justice. The realists’ rejection of “bright-line” tests was ill conceived. Likewise, balancing tests are at times ill suited and at other times well-suited to achieve substantive justice. In other words, the pre-war realists overstated their critique of formalism, and the post war realists overstated the efficacy of the supposed remedy.104 The fact that the pre-war realists’ epistemology led them to a well founded general methodological rejection of categorical analyses, which was usually correct, is not equivalent to finding the methodology proposed by the post-war realists, interest-balancing tests, to be necessarily, or even generally, well-founded. Balancing tests, like bright-line categorical analyses, depend on terminological certitude and empirical verifiability. The realists’ critique was generally, though not universally, correct, but the solution that they offer is generally, but not universally, as open to critique as the supposed problem that they purport to solve. Current legal epistemology incorrectly rejects “bright-line” categorical tests (e. g. A or not A) on the following grounds: While categorical analyses are unambiguous they are at best teleologically blind and at worst teleologically vicious. When teleologically vicious, formal manipulations are nothing more or less than the mask of class dominance.105 When teleologically 102 “Whereas postmodernists often attempt to deconstruct binary oppositions, such as objectivity versus subjectivity, modernists tend to accept such opposed pairs.” Feldman, supra n. 51 at 2366. 103 Carol M. Rose, Crystals and Mud in Property Law, 40 Stan. L. Rev. 577, 578–79 (1988) (contrasting bright-line rules against muddy standards). 104 Singer illustrates the struggle between these two positions: “For all its realist aspects, the legal process school creates a new kind of formalism. First, it presumes that it is possible to identify, in a relatively objective fashion, the sorts of issues that courts are, and are not, competent to decide. Yet there is no reason to suppose that the elaboration of institutional roles is any more objective or determinate than the formulation of substantive principles. For example, . . . it is impossible to define what constitutes a legitimate contracting process without taking a position on the proper legal response to economic duress or unequal bargaining power. The more one wants to protect the integrity of the contracting process by regulating the ability of more powerful market participants to impose their will in the marketplace, the more the courts must regulate the substantive terms of contracts in order to prevent coercion.” Singer, supra note 3, at 518. 105 “[C]ritical jurisprudence posits that the underlying norms, rules, and institutions of society are socially constructed and shaped primarily by dominant groups . . . ‘[P]ast or contemporary doctrine as the expression of a particular vision of society while emphasizing the contradictory and manipulable character of doctrinal ar-

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blind formal manipulations ignore whether substantive outcomes are in fact just, and elevate the procedural form over the substantive result. The realists’ conclusion is a methodological rejection of a categorical bright-line analysis in favour of “balancing tests.” This rejection is ill founded. Categorical analyses require an exact methodology, i. e. terminological and empirical certitude, and strict application of formal logic. Since the realist so-called revolution of the 1930s linguistic determinacy and propositional logic are criticized and generally rejected in American jurisprudence, wrongly, as rigid formalism. The realists’ rejection of formal logic is overly-simplistic: they ignore that formal logic and empiricism are perfectly compatible as methodological tools in the search for truth. If balancing tests, favoured by the teleological interpretation realism prescribes, can be evaluated and determined according to objective empirical evidence, then so too can “bright-line” categorical analyses. There is no empirical difference between determining the “weight” of a “factor” in a multi-variant balancing test, and determining whether a “bright-line” “threshold” is met. At the empirical level, the realist argument that flexible “balancing tests” are better than “formalist,” “bright-line tests,” is not necessarily true. Thus, the realist critique is overly-simplistic. The realist critique of logic also goes too far. Realists argue that formal logic is at least abused if not misused.106 Of course logic can be abused; gument.’ . . . Critical Race scholarship as an effort ‘to understand how a regime of white supremacy and its subordination of people of color have been created and maintained in America, and in particular, to examine the relationship between that social structure and professed ideals such as ‘the rule of law’ and ‘equal protection’.” Aceves, supra note 34 at 311 (footnote omitted). 106 Sebok discusses realist objections: “Cohen and Pound claim[ed] that formalism was committed to a deductive model of legal reasoning. It is not clear what this claim really meant. It probably could not mean, as is often claimed, that the ‘top-level’ concepts used by the conceptualist are presented as objective, or true a priori. If we understand Langdell to have been committed to discovering legal principles through induction, then the realists must be charging the formalist with using logic incorrectly either in discovering the original ‘top-level’ concepts or deriving the conclusions that follow from those concepts. However, the realist objection cannot mean, on a trivial level, that the formalists ‘obeyed’ the canons of logic or reason, in the sense that the realists flouted those canons. The realists respected and employed simple operations of rational method, as their own selfstyled attempts to develop a legal science attest. In truth, the ‘abuse of logic’ claim was not really about the method of reasoning employed by the formalist, but about the number and types of legal concepts the formalist found useful or acceptable. . . . It is also easy to understand why the realist would think that the formalist was guilty of the ‘abuse of logic.’ The command theory and the sources thesis required that valid legal principles – however identified – generate legal conclusions; otherwise legal results could not be traced back to the sovereigns that commanded

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however, the realists appear to ignore that formal logic is only contingently and not necessarily manipulable.107 The manipulability of formal logic is contingent upon a combination of terminological inexactitude and dishonesty: it is not inevitable. If all formal logic were merely a manipulation designed to mask the raw exercise of power, then no logical argument would be admissible. That is, of course, a nihilist position. That premise, however – that logical argument is merely a mask for the exercise of raw power – is self-contradictory. It leads to a conclusion that voids most nihilist discourse. And it is also empirically untrue: even tyrannies seek to justify their exercise of power,108 and in some cases the justification is valid. Just as no regime is entirely just, no regime is entirely unjust. The above described logical contradiction defuses most nihilist discourse – whether such discourse is presented as legal realism or post modernism.109 Many post-modernists raise irrationalist110 arguments similar to that of the realists’: Members of both schools of thought assert that there is no truth or that all truth is relative or inter-subjective.111 them. But, the realists’ real objection to the role of logic in legal reasoning was not that deductive logic was used to produce results from a priori principles, but was rather to the claim that practical reason of any variety – deductive or inductive – could be used to constrain the results that legal reasoning generated.” Sebok, supra at 2091–93 (footnotes omitted). 107 Karl Llewellyn discussed manipulability: “[Arguing] that although precedent is highly manipulable, it substantially constrains judges in decisionmaking. A judge can almost always construct arguments for a ruling ‘on either side of a new case.’ At the same time, the judge must construct an argument based on existing principles of law, and ‘there are not so many that can be built defensibly’.” Singer, supra note 3, at 472 (footnotes omitted). 108 For example: “Hitler justified his military objectives in the Sudetenland on the grounds that ‘Germans as well as the other various nationalities in Czechoslovakia have been maltreated in the unworthiest manner, tortured, . . . [and denied] the right of nations to self-determination,’ that ‘[i]n a few weeks the number of refugees who have been driven out has risen to over 120,000,’ that ‘the security of more than 3,000,000 human beings was in jeopardy’.” Ryan Goodman, Humanitarian Intervention and Pretexts for War, 100 Am. J. Int’l L. 107, 113 (2006). 109 “[P]ostmodernism cannot be reduced to a simple concise definition, it nonetheless is animated by several themes that can be specified and explained.” Feldman, supra note 51 at 2365. This is known as the logical flaw of vagueness – an ambiguous proposition is by definition irrefutable. 110 “Schizophrenic nominalism is most evident in the writings of Postmodern academics. Jameson illustrates the point by reference to Paul de Man’s implacable commitment to exposing ‘the artificial emergence of metaphoric abstraction and of the conceptual universal from the real of particularity and heterogeneity’.” Post, supra note 21, at 394 (footnote omitted). 111 For an example of the debate about truth and knowledge: “[M]odernists often declare that either we have objective knowledge – that is, knowledge grounded on

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That position leads, however, to the self-defeating conclusion that one must reject logical argument. The contradiction in either case – legal realism or post modernism112 – is that using logic to argue that one cannot or should not use logic is illogical. If “there is no truth,” or if “all truth is relative,” then these statements are logically empty of meaning. The antinomian conclusion is the inevitable conclusion that most postmodern and realist epistemology must lead to, if we take their assertions of truth nihilism or relativism seriously, and not as a mere sensationalist foil for a healthy truth scepticism, which they generally are. Although this position of realists and post-modernists taken to its logical conclusion does in fact lead to an impermissible contradiction,113 a qualified realism is admissible. The statement “The abuse of formal logic leads to some injustice” is perfectly admissible i. e. that statement is formally valid – and is in fact empirically true and possibly even necessarily true. The statement “The use of formal logic always leads to injustice” is, empirically untrue and illogical. The first statement, a qualified realism, is admissible and does not overstate the realist critique. The second is not: it goes too far. Truth sceptics and realists have some points – logic can be, and sometimes is, manipulated. However, truth sceptics and realists should be careful not to take their points too far lest their nihilism also destroy their own discourse, via the antinomy described. That destruction necessarily occurs whenever realists or post modernists assert a truth statement purporting to negate the existence of truth statements – for example, when they attempt to simultaneously assert that “all moral values are relative” or that “no truth exists.” Those two statements are in fact logically incompatible. They cannot be asserted simultaneously in logical discourse. They some firm foundation – or we are relegated to free-floating subjectivism and relativism. Likewise, some modernists maintain that either we must be independent subjects with freedom of will or we must be no more than completely determined automatons.” Feldman, supra note 51 at 2366 (footnote omitted). However, natural phenomena clearly are not inter-subjective. They are objective. And since thoughts are a reflection of the world social phenomena too are objective and not merely inter-subjective. 112 For example: “[P]ost-modernism . . . subsuming post-structuralism and deconstruction: poststructuralism identifies the ground-clearing theoretical critique of both Marxist structuralism and linguistic structuralism while deconstruction names the method employed in opening up ‘the text,’ whether legal judgment, news story or novel, to reveal both what it contains and what it blocks or excludes. However, the label postmodernism, even if it does not define the project, at least has the merit of projecting something of its flavour.” Hunt, supra note 44 at 508–09. 113 “[P]ostmodernism has become an academic joke even before the dawn of the millennium.” Feldman, supra note 51 at 2357 (citing Arrow’s criticisms of postmodernism).

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are antinomies – the former heterologically the latter autologically. This leads to the conclusion that the linguistic indeterminacy114 and supposed flaws of formalism, which led to the replacement of “bright-line” categorical tests by interest balancing tests were not as grave as realism proposes. Thus, realism is an imperfect solution to an ill-defined problem: interest balancing is just as manipulable115 as “bright-line” categorical hermeneutics. What factors are chosen? What weight are the factors given? How is that weight measured? Despite flaws in the relativists’ positions, their arguments are so successful that contemporary axiology generally limits itself to market values and ignores “subjective” moral values. Contemporary legal epistemology is at least sceptical toward the existence of truth and rejects the existence or at least the cognizability of objective moral values.116 Thus, economic analyses are ascendant because they can claim scientific objectivity and legitimacy; economic arguments are, or at least appear to be, empirically quantifiable, therefore verifiable, and thus objective. Legal realism, searching to attain substantive justice, has given judges the necessary tools to allow the deployment of their subjective will117 – without, however, any moral telos to guide that will.118 So the realist critique, which is ultimately a critique of formalism’s supposedly absent teleology, falls apart for lack 114

“In the tradition of postmodern scholarship, critical jurisprudence engages in a deconstruction of the monolithic set of norms, rules, and institutions that constitute the domestic legal system . . . The law is not pure; it is a socially constructed network of ‘prepackaged categories, clusters, reified systems.’ This movement has revealed the indeterminacy of law as well as the manner in, which power asymmetries have marginalized and subordinated countless groups.” Aceves, supra note 34 at 310 (footnote omitted). 115 Edwin J. Butterfoss, A Suspicionless Search and Seizure Quagmire: The Supreme Court Revives the Pretext Doctrine and Creates Another Fine Fourth Amendment Mess, 40 Creighton L. Rev. 419, 464 (2007). 116 “[P]ostmodernists maintain that they have explained, as discussed above, how we actually have truth and knowledge. Truth and knowledge exist not because of correspondence with objective reality, but rather because we exist within communal and cultural traditions that enable us to communicate with each other.” Feldman, supra note 51 at 2363. A reductio demolishes that nonsense: In the inter-subjective nazi universe summary execution without trial is permissible. So much for intersubjectivity. 117 Per the realists, “rules of law do not play the kind of central role in legal reasoning that is claimed by the deductive model. For it is a notorious and noteworthy fact that different judges, employing their own reasoning processes, reach different results in similar cases and even in the very same case.” Benditt, supra at 3. 118 “Postmodernists generally refrain from making such explicit proposals for social and legal change and thus repudiate this type of normative scholarship.” Feldman, supra note 51 at 2360. Just what the world of war, starvation, and disease needs: spineless indifference in the guise of objectivity.

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of foundation. The teleological critique of formalism presented by realism depends upon an axiology, which realism helped destroy. If all moral values are merely subjective then only economic values are scientifically objective – quantifiable and verifiable. Thus the judicial willpower realism unleashes is now exercised to serve the interests of the wealthy. If “no truth exists” or “all values are relative” – illogical statements, which are, however, in vogue because they are shocking, sensational and their less extreme versions can be well founded – then economic empiricism is the only remaining scientific argument. That explains the contemporary ascendancy of economic analyses. Rather than arguing within the presumption that economic value is the only value or the only objective value, methodological critiques of balancing tests would best question the epistemology balancing tests, such as fair use, are founded on. An epistemological critique of the realists and post modernists is possible because truth negationist epistemology is incorrect. True statements do in fact exist. It is true that not all arguments are verifiable, and that not all arguments are falsifiable. It is also true, however, that some arguments may be verified, or at least falsified, and that not all arguments that are falsifiable necessarily imply a verifiable contrary position. Having established the objectivity of its epistemological foundations, the best critiques will then attack the methodology of balancing tests. First, question the (pseudo) empirical foundations of balancing tests generally. The questions, “which factors are chosen”119 and “what weight are they given,”120 are almost always determined by judicial willpower – which negates the supposed objectivity of “value free” empiricism. Next, the critique should point out that balancing tests are as vague and manipulable121 as categorical analyses – and possibly more so – after all, there are more terms to play with. Finally, the critique should point out that not all goods are fungible nor do they all have markets. Some goods really are irreplaceable, others have too few buyers and sellers to create a market, and, of course, not all actors are economically rational maximizing profits. Then too, transaction costs and externalities can undermine markets. All are good reasons to forget economic analysis as the panacea to legal indeterminacy. Despite these possible attacks, balancing tests can be epistemologically and methodologically speaking, well-founded. The realists’ epistemology 119 See Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L.J. 1225, 1254 (1999). 120 Id. 121 Don Herzog, The Kerr Principle, State Action, and Legal Rights, 105 Mich. L. Rev. 1, 34 (2007).

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can be defended, though only in a qualified manner: (1) Though truth negationism is inadmissible truth scepticism is permissible; (2) The realists’ methodology, balancing tests, is no more, or less, objective than categorical bright-line analyses; (3) The realists’ methodology is not capricious, or no more capricious than categorical analyses, if grounded upon data that is quantifiable and verifiable, which economic values are. However, in practice, judges usually do not quantify interests numerically. Rather, judges merely state that one interest is greater than another. By consciously enumerating chosen factors, explaining whose interests are chosen and how those interests are weighted, balancing tests can be rescued from the very indeterminacy the legal realists criticize.

D. Conclusion The so-called revolution of the 1930s, brought about by the judiciary, did not in fact lead to fundamental change in the United States. Rather, it presented the illusion of change; this illusion had the effect of sustaining the power structure of the United States in the time of its greatest crisis averting revolution and coup d’état.122 Following the Second World War the formerly radical lawyers of the 1930s suddenly became the administrators of the global empire. Their ideas never really recovered any radical impetus. Thus, realism never completely replaced formalism, luckily, because formal logic is the foundation of the rule of law. The realists’ critical ideas, however, never truly developed further. The economic analysis of law arose, in part, because of the epistemological failings of realism. Critical legal studies, stemming from the war in Vietnam and attendant domestic unrest,123 starts from some of realism’s propositions, follows them more consequently to logical conclusions. Postmodernism, in contrast, merely questions everything and provides no answers.124 But critical legal studies never took state power. 122 Deborah M. Weissman, Law As Largess: Shifting Paradigms of Law for the Poor, 44 Wm. & Mary L. Rev. 737, 792 n. 293 (2002); Leslie Deak, Customary International Labor Laws and Their Application in Hungary, Poland, and the Czech Republic, 2 Tulsa J. Comp. & Int’l L. 319, 320 n. 3 (1995). 123 “Critical Legal Studies blossomed in ‘the post-Vietnam era.’ Although moving vigorously on to the jurisprudential stage several years after the days of Vietnam and Watergate, Critical Legal Studies, in all probability, draws its vigor from the field of forces that energized the American New Left.” John Batt, American Legal Populism: A Jurisprudential and Historical Narrative, Including Reflections on Critical Legal Studies, 22 N. Ky. L. Rev. 651, 752 (1995). 124 For a satirical expose (and scathing critique) of postmodernism’s essential methodological incoherence, see generally Arrow, supra.

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We are now living through a third war and crisis, the so-called War on Terror. Just as realism and critical legal studies125 were born out of economic and military crises, I expect the so-called War on Terror to spark serious dissent, including legal dissent. This chapter exposed some of the intellectual history of critical legal thinking in order to help that process. It is only by understanding different viewpoints that we can obtain the best understanding.

125 “[Critical Legal Studies] attempt[] to ‘demonstrate that a doctrinal practice that puts its hope in the contrast of legal reasoning to ideology, philosophy, and political prophecy ends up as a collection of makeshift apologies’.” Caudill, supra note 60, at 310 (quoting Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561, 573 (1983)).

Chapter 7

Beyond Legal Realism (1950–1980) A. Introduction: The Failure of the Left In the prior chapter we saw how the U.S. left was essentially co-opted into the state, despite a serious radical challenge it raised in the 1930s. In this chapter, we look at the consequences of that cooptation, which were an essential paralysis of the left agenda in the subsequent decades. In chess, a gambit is to offer a piece to draw an opponent into a worse position. Knights are often gambitted early in the game because they can enter play quickly and are of low value later in the game. This chapter discusses a different type of gambit: the gambit made by progressives in taking up the idea of moral relativism in the hope to thereby critique the failed conservative morality. However, that gambit draws the Left into a fool’s mate, a rapid and unexpected reversal of fortunes; for by taking the gambit, the Left becomes trapped and immobilized by the erroneous belief that normative inferencing is impossible. That erroneous belief in turn paralyzes any moral critique and transforms all arguments into economic ones. Political discourse of the last thirty years in America has been effectively monopolized by the political Right. The American Left has, across the board, failed in its efforts to develop a coherent program1 to use law as a tool for reform whether radical or gradual.2 Why is that?3 We can look at any issue: political issues defined around the interests of women,4 non1

Paul H. Brietzke, Urban Development and Human Development, 25 Ind. L. Rev. 741, 755 n. 46 (1991). 2 See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1083 (2001). See generally Dennis W. Arrow, Pomobabble: Postmodern Newspeak and Constitutional “Meaning” for the Uninitiated, 96 Mich. L. Rev. 461 (1997). 3 One suggestion is that the failure is due to alternative proposals by the Left. I disagree. Alternatives were proposed, attempts were made at implementation, yet proposed projects were not in fact implemented or immediately rolled back. See, e. g., Martha Minow, School Reform Outside Laboratory Conditions, 28 N.Y.U. Rev. L. & Soc. Change 333, 335 (2003) (lack of alternative propositions). 4 An example is the failure of the federal Equal Rights Amendment. William P. Gunnar, The Fundamental Law that Shapes the United States Health Care System:

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whites, homosexuals,5 and criminals,6 and issues of general interest such as health insurance,7 pensions, unemployment insurance, and poverty relief.8 In each and every case, the Left agenda, whether redistributive9 or social, has been routed. At the same time, the U.S. government has squandered a budget surplus built by Democrats10 along with the goodwill of the entire world11 and the American people12 in a counterproductive war in Iraq.13 Is Universal Health Care Realistic Within the Established Paradigm? 15 Annals Health L. 151, 178 n. 226 (2006). 5 See, e. g., Katherine M. Franke, The Politics of Same-Sex Marriage Politics, 15 Colum. J. Gender & L. 236, 248 (2006). 6 E. g., Lucy C. Ferguson, The Implications of Developmental Cognitive Research on “Evolving Standards of Decency” and the Imposition of the Death Penalty on Juveniles, 54 Am. U. L. Rev. 441, 442 (2004) (reconstitutionalization of the death penalty). 7 Bruce Spitz & John Abramson, When Health Policy Is the Problem: A Report from the Field, 30 J. Health Pol. Pol’y & L. 327, 338 (2005). 8 Daniel B. Klaff, Evaluating Work: Enforcing Occupational Safety and Health Standards in the United States, Canada and Sweden, 7 U. Pa. J. Lab. & Emp. L. 613, 617 (2005) (failure of President Johnson’s Great Society program). 9 Thomas D. Rowe, Jr., Study on Paths to a “Better Way”: Litigation, Alternatives, and Accommodation, Background Paper, 1989 Duke L.J. 824, 835 (1989). 10 Nancy-Ann DeParle, Medicare at 40: A Mid-Life Crisis? 7 J. Health Care L. & Pol’y 70, 96 (2004) (“When the Bush Administration took office in January 2001, the Congressional Budget Office projected a $5.6 trillion surplus over the next ten years. Now the surplus is gone – thanks in no small part to a $1.7 trillion tax cut – and the government faces deficits as far as the CBO computers can calculate.”); George Anastaplo, Law, Judges, and the Principles of Regimes: Explorations, 70 Tenn. L. Rev. 455, 487 n. 116 (2003) (“We have seen, since this 1992 talk, that remarkable switch in positions, which has had a Democratic Administration presiding over a Budget surplus and a Republican Administration preparing to preside over an unprecedented Budget deficit.”). 11 “For a brief and powerful moment, most of the rest of the world genuinely shared our loss. Most were prepared to support us in almost every conceivable way to win the war on terrorism. Needlessly and senselessly, we have squandered that good will. How? In part, by employing bullying rhetoric (as President Bush did in his address to Congress on September 20, 2001, when he said, ‘either you are with us, or you are with the terrorists’), by reinforcing perceptions of American bias in the Israeli-Palestinian conflict, and by demanding the world fall in line, on our schedule and on the basis of shifting rationales, to depose Saddam Hussein.” Susan E. Rice, U.S. National Security Policy Post-9/11: Perils and Prospects, Fletcher F. World Aff., Winter 2004, at 133–34. 12 “We have to renew the spirit of national purpose, unity, and resolve we showed after September 11th – and, which George W. Bush has squandered since.” In Their Own Words: The 2004 U.S. Presidential Candidates on Foreign Policy, Joseph I. Lieberman, Fletcher F. World Aff, Winter 2004, at 5, 21. 13 “[W]hatever legal and political capital that the United States and its military campaign fuelled in the run up to ‘Operation Enduring Freedom’ was effectively squandered away in the rash and ill-advised ‘Operation Iraqi Freedom’.” Jackson

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Yet we see no presidential impeachment, neither for incompetence nor for lying and sending Americans to perish in the desert in search of nonexistent weapons of mass destruction. The failure of the Left could not be more complete. The democratic presidency of Obama has not particularly changed that dynamic: he presides over the dismantling the social welfare state, and the continued implementation of the national security paradigm. This chapter traces and explains the failure of the Left’s agenda in legal discourse.14 Particularly, this chapter discusses the failure of the Left to implement its agenda. Affirmative action? Racial profiling. Women’s rights? Feminazis. Prison reform? Three strikes. Further, the Left’s comprehensive failure due to its adoption of a failed axiology is explained. Axiology is the theory of values, the theory of choice of determinant values. The Left adopted moral relativism as early as the 1930s in the work of the legal realists. Relativist axiology has taken the Left nowhere because it is inaccurate. The Left’s erroneous relativist axiology is the result of an erroneous epistemology. Epistemology is the theory of knowledge. Thus, the correct epistemological foundations needed in order to obtain a correct theory of moral choice must first be exposed and clarified. The failed relativist axiology results from a confused and incoherent relativist epistemology. The incoherent relativist epistemology is in turn the result of a conNyamuya Maogoto, Countering Terrorism: From Wigged Judges to Helmeted Soldiers – Legal Perspectives on America’s Counter-Terrorism Responses, 6 San Diego Int’l L.J. 243, 293 (2005). “I believe the Bush Administration has squandered our resources – especially those of our armed forces – in a war in Iraq that seriously undermines our country’s efforts to press for the rule of law around the world. Indeed, instead of working for progress toward a rule of law, I see the Bush Administration lurching toward a rule of scofflaw.” John W. Head, Responding to 9/11: Lurching Toward a Rule of Scofflaw, Kan. J.L. & Pub. Pol’y, Fall 2005, at 4. 14 Ackerman seems to blame the failure of the Left on psychological and mass psychological grounds. Bruce Ackerman, A Generation of Betrayal? 65 Fordham L. Rev. 1519, 1528 (1997) (new Left failed due to psychological grounds); Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L.J. 453, 489–90 (1989) (new Left failed due to mass psychology). If the Left just needed a good therapist it would have been in power ages ago. Others also think the failure of the Left is due to psychological factors: “Ironically, it turns out that the American intellectual left failed in large part because they somehow mistakenly assumed that everyone, at base, was like them.” David M. Smolin, The Dilemmas and Methodologies of Academic Political Liberalism: An Analysis of Professor Lawrence Friedman’s Response to the Problem of Violent Crime, 27 Cumb. L. Rev. 959, 972 (1996–97). However, in fact most people are like each other. Psychology does not explain the failure of the Left. The Reagans and Bushes are every bit as dysfunctional as the Clintons. Although I reject the psychological failure thesis, the fact that the intellectuals are so off base that they are looking at psychology, as if politics were a talk show or a sitcom, shows the shallowness of contemporary United States political discourse.

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fused ontology. Ontology is the theory of being, the science of determining the basic nature of existence. We must have a well-founded theory of moral choice in order to successfully implement legal reforms. Thus, we require a coherent and correct epistemology. To obtain a correct epistemology, we require a correct ontology. Determine the correct ontology, and the epistemology basically falls into place. Rectify the epistemology, and the axiology in turn falls into place. Rectify the axiology, and legal methodology and political agenda fall into place. With a correct theory of moral values, the Left is likelier to implement its substantive policies. Thus, we address the goal – implementing certain ideas – in reverse order. First, the essential nature of the problem – its ontology – is diagnosed in Part II. Then, certain basic propositions of the theory of knowledge (epistemology) are determined, which must be understood in order to move to the next step. From a correct epistemological perspective (obtained in Part II), this chapter then moves forward to a correct theory of choice of values (axiology) in Part III. With a basic understanding of a correct ontology, epistemology, and axiology, it is possible to properly situate American legal and political discourse, understand its potential and limits, and resituate that discourse and its legal methods as part of a coherent framework for fundamental change. This restitution and contextualization permits one to pose and answer fundamental questions of legal theory (methods of interpretation) and political practice (finalities of U.S. foreign policy), which is the topic of Part IV of this chapter. More specifically, a materialist ontology leads to a monist epistemology, and thus an objective epistemology. Materialism and monism preclude dualist noetic theories such as Platonism and neo-Platonism. Avoiding Platonism also avoids confusion resulting from needless multiplication of intentional entities. On the basis of the materialist epistemology a correct cognitivist axiology can be attained and an incorrect relativist axiology will be avoided. Cognitivism is simply the idea that moral values are knowable that we can have knowledge of what is meant by “good” and “bad” acts. Cognitivist axiology in turn allows the Left to resituate arguments, which have been pushed into the economic arena back into the moral arena. The Left cannot advance its agenda of equal rights in economic terms. Only by resituating the discourse of equality back into the field of morality can the Left hope to implement its views. The Left’s discourse has failed. This was due to errors in assumptions of the nature of reality. In place of the failed relativism of the Left, this chapter uses a monist, materialist, holist, and cognitivist method. This method is applied proceeding from fundamentally prior concepts to their theoretical consequences. The epistemological basis of realist legal method is exam-

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ined in Part II. After understanding materialist epistemology, the axiological consequences of the chosen theories in Part III are examined. In Part IV, a discourse on legal method flows logically from the mutually supporting theories of ontology (materialism), epistemology (monism), and axiology (cognitivism) and leads in turn to a new theory of natural law with attendant legal methods.

B. Epistemological Basis of Realist Legal Method Late modern legal thought often suffers from confusion stemming from two distinct but similar concepts: epistemological relativism15 (nihilism16 or scepticism) and axiological relativism17 (intersubjectivity).18 If a legal theorist employs either or both of these related lines of thought carelessly, the result is the usual post-modern confusion.19 This prudent council, to be 15 “[T]he whole texture of twentieth century philosophical thought, which has produced an epistemological relativism often said (with some justice) to underlie contemporary liberalism.” Kevin F. Ryan, Lex et Ratio . . ., Vt. B.J., Apr. 2003, at 5, 12. 16 For a sense of the depth of the split in U.S. legal discourse, see, e. g., Harry V. Jaffa, Graglia’s Quarrel with God: Atheism and Nihilism Masquerading as Constitutional Argument, 4 S. Cal. Interdisc. L.J. 715, 716 (1995) (commingling nihilism and relativism). 17 Axiology is merely the theory of choice of values. Some authors appear to confound axiology and relativism. “Schmitt proposes a conceptual and historical analogy between axiology (the theory of values as ethical relativism) and total war.” Jorge E. Dotti, Schmitt Reads Marx, 21 Cardozo L. Rev. 1473, 1483–84 (2000). An objectivist axiology is also possible. 18 See, e. g., Paul R. Tremblay, Shared Norms, Bad Lawyers, and the Virtues of Casuistry, 36 U.S.F. L. Rev. 659, 677 (2002). 19 “[A]ll its connections as well as all other attributes it may be thought to possess, are accidental, contingent, or random, and furthermore, they are so essentially. This is not an empirical, descriptive, tentative claim about our modern nature, it is a transcendental claim about the nature of nature . . .. [T]he postmodern self so dear to the heart of postmodern theorists is . . . as changing, unstable, and unpredictable as the wind . . . To repeat, that inessential self is . . . not a hypothetical description, subject to modification or amendment as new evidence presents itself. It is a metaphysically transcendent truth.” It is very difficult to see what sort of idea West is describing here. At times West seems to regard this postmodern self, like the liberal self, as a description of an empirical entity – a claim about “the nature of nature,” albeit one that the postmodernists dogmatically refuse to allow to be contested or corrected by contrary evidence. Confusingly, West depicts the postmodern self as “unstable, and unpredictable as the wind,” implying that, like the weather, the postmodern self has a real existence in the world, if one that is sometimes hard to keep track of. West’s declaration that the postmodern self is essentially inessential is the sort of glib verbal manipulation feminists have always had to endure in arguments with the patriarchy.” Katherine C. Sheehan, Caring For Deconstruction, 12 Yale

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careful to make one’s presumptions known, would be met with approval by David Hume.20 Moral relativism21 and post-modernism22 have been responsible for confusion in legal thinking23 because of misinterpretations of Hume24 and Nietzsche.25 By addressing the philosophical roots of legal methodology this chapter hopes to clarify some of that confusion in order to correct the methodology that flows from it, so that law can work justice. Hume observes that those who make prescriptive arguments – arguments about what one ought to do – generally make the following mistake. The J.L. & Feminism 85, 95–96 (2000). The problem is not with West or with Feminism. The problem is with postmodernism. West is correct. The postmodern sense of self – and anything else for that matter – is mutable because it is founded not on objective empirical facts but subjective internal feelings. Postmodernism is one step short of solipsism. West is just one example. 20 But see, Francesco Parisi, Alterum Non Laedere: An Intellectual History of Civil Liability, 39 Am. J. Juris. 317, 338 (1994) “David Hume challenged the scholastic notion of prudence, underscoring the practical insufficiency of such a moral ideal in a society of self-centered beings. In the Aristotelian ideal of prudence, the goal of self-perfection of human character was paramount. According to Hobbes, however, the self in need of perfection was foreign to real political and legal concerns. In his view, of the four cardinal virtues, only justice could maintain full dignity in a truly positivist conception of law. While prudence and the other cardinal virtues of courage and temperance remained desirable attributes of the human character, they no longer could imply the existence of related civil or legal obligations.” 21 “[T]he emergence of moral relativism in Western thought, in, which it is believed that there are no objective truths and that morals are relative and subjective, has led contemporary legal theories to reject natural law and other normative concepts.” Erin Englebrecht, Three Fallacies of the Contemporary Legal Concept of Environmental Injury: An Appeal to Enhance “One-Eyed Reason” With a Normative Consciousness, 18 Tul. Envtl. L.J. 1, 38 (2004). 22 “Hume deconstructed the self, and argued that the self was simply a bundle of perceptions. The postmodernist conception can jokingly but pretty accurately be characterized as ‘Hume plus advertising’.” Dale Jamieson, The Poverty of Postmodernist Theory, 62 U. Colo. L. Rev. 577, 585–86 (1991). 23 E. g., Samuel K. Murumba, Grappling with a Grotian Moment: Sovereignty and the Quest for a Normative World Order, 19 Brook. J. Int’l L. 829, 850 n. 61 (1993). “The confusion of targets identified in postmodernist theories also bedevils C[ritical] L[egal] S[tudies].” Id. 24 E. g., Steven Hetcher, Climbing the Walls of Your Electronic Cage, 98 Mich. L. Rev. 1916, 1921–22 (2000) (reviewing Lawrence Lessig, Code: And Other Laws of Cyberspace (1999)). “Hume’s Law is sometimes stated as: An ought cannot be derived from an is. The proper conception of Hume’s Law, however, is that an ought statement cannot be derived merely from an is statement.” Id. I argue that Hume was not saying anything more than one must make their ought statements known and not confuse them with their is statements. 25 Most frequently, people think that Nietzsche is saying that there is no morality, when in fact Nietzsche was struggling to build a new morality.

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proponent of the argument will begin with a series of descriptive statements – factual descriptions of reality as it is. The argument’s proponent will, however, reach a prescriptive conclusion – that one ought to do a certain thing. Hume’s critique is that the proponent of the prescriptive argument has shifted from descriptive statements of what “is” (“is” statements) to a prescriptive statement of what “ought” to be done (“ought statements”). Hume implores proponents of prescriptive arguments to explain how they make this transition from descriptive “is” statements to prescriptive “ought” statements. That is, in my opinion, all Hume says on the subject – nothing more, nothing less. If one is to mix statements of what is and what ought, one must explicit the prescriptive or descriptive nature of those statements and how one shifts from description to prescription – for example, the major premise that “one ought to be kind” and the minor premise that “torturing people is not kind” with the conclusion that “Thus, one ought not to torture people.” This is a perfectly valid syllogism of practical reasoning (phronesis) in the form of modus ponens, and it is unambiguous because the “is” and “ought” statements are explicit. One may attack either the major or minor premise with no risk of confusion of an “is” statement with an “ought” statement. If both the major and minor premises were “is” statements with an “ought” conclusion that might be per se invalid. However, Hume does not even get that explicit in his critique of enthymematic “ought” statements. Even if “is” and “ought” statements had to be distributed such that there was a prescriptive statement both in the premises and in the conclusion, which I think is what Hume was really getting at, that might not be invalid if one can recast ought statements as a particular kind of is statement. However, Hume leaves a lot unsaid: Why? Here is why: Hume’s argument, though clear on its own terms is, in fact, very modest. Hume is merely exhorting philosophers to make explicit their “is” and “ought” statements and to show how they make the transition from an “is” statement to an “ought” conclusion. However, he might believe they cannot and, in all events, put the burden of proof on he who would infer norms. That move is far more effective than trying to determine when and whether normative inferencing is possible. However, Hume’s modest proposal has been extended well beyond its own terms. Hume has been interpreted to argue that normative inferencing – deriving “ought” statements – is somehow impossible. Hume does not make that argument. Those who take the overly broad interpretation of Hume argue that Hume shows that normative inferencing is impossible. That simply is not the case. Hume does not claim that normative inferencing is impossible. Those who interpret Hume too broadly argue that if normative inferencing

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is impossible, it is also impossible to make any “ought” statements at all. If normative inferencing were impossible, then, indeed, prescriptive argumentation would also be impossible. And, if prescriptive argumentation were impossible, then we would all be relativists, regardless of our subjective opinions about our (supposed) objectivity. However, the logical conclusion is based on a faulty premise. Hume does not argue, let alone prove, anything about normative inferencing. However, this misinterpretation of Hume as arguing for an impossibility of normative inferencing is one of the bases of contemporary moral relativism. Moral relativism as an ideology is a failure. And, the failure of relativism explains the failure of the Left. By opposing misinterpretations of Hume, one puts human rights back into the arena of morality and inalienable human rights, and out of the field of alienable positive economic goods. By showing that normative inferencing is possible and how (distributed prescriptive major premise and conclusion), it becomes possible again to argue that: – One ought to oppose killing. – The war in Iraq kills. – Thus, one ought to oppose the war in Iraq. – If one asks why one ought to do anything, the quick answer is “survival of the species”. Nietzsche is the other principal basis of moral relativism. Nietzsche argues that morality is essentially subjective. He resituates morality on an individualist and authoritarian basis. Rather than the Christian morality of martyrdom and self sacrifice, Nietzsche proposes an individualistic morality of egoistic self aggrandizement. Nietzsche is not amoral. Nietzsche clearly has a prescriptive agenda. Like Hume, Nietzsche is also often taken too far: Nietzsche might be some kind of a moral relativist, but his epistemology is not relativist. By pointing out Nietzsche’s objective epistemology and by correctly understanding his axiology not as nihilism but as egoism, the abuse of Nietzsche to advance the relativism, which sapped the strength of the Left can be rejected. If epistemology is objective, which is Nietzsche’s view, then an objective axiology is at least possible. By pointing out these bases of moral relativism, this chapter will show how an objective morality is possible and that, by shifting from a failed relativist worldview toward a materialist morality, the Left can regain those moral cognitivists it has lost to the right. Likewise, an objective materialist view of axiology would allow the Left to make prescriptions, and thus enable it to win arguments, which it currently cannot win because of being trapped within the dead-end that is relativism.

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I. Dualism (Plato) Dualism26 (particularly Manichaeism)27 has marked and marred Western thought virtually since the beginning of recorded history. The results of dualism are rather clear: separation (self vs. other), alienation (employer vs. employee), depression, abuse (parent vs. child), and war (“my” country vs. “your” country). Plato is perhaps the first recorded example of dualism in Western philosophy28 and should be contrasted from pre-Socratics such as Pythagoras and Heraclites who were monists.29 Unfortunately, though Plato’s epistemology is largely rejected, his ontological dualism is not. Plato distinguishes ideas (forms; eidos30) from the material (hulé),31 and believes that the idea is somehow prior to the material in the sense of somehow causing it. For Plato, material objects are a reflection of ideas,32 and the world is nothing more than a reflection of the thoughts of God. In modern terms, he is guilty of magical thinking. He makes a map of reality and then thinks the map is reality. Unfortunately for Plato, and fortunately for science, no one has taken his epistemology very seriously for at least a millennium. One mark of modernity is the monopoly of empirical materialism on scientific debate. For modernity, our ideas are a reflection of the material world. Rejection of Plato did not have to await industrialization, however. Even Aristotle was sceptical about Platonic formalism.33 Similarly Descartes34 and Pascal,35 26

Dualism is the idea that there is a fundamental split between mind and mat-

ter. 27 Manichaeism is the idea that the universe is dualistic and that the duality is marked by an absolute conflict between polar opposites. 28 “The view that there is a separation in the human person between the mind and the body dates from the history of Western thought to Platonic dualism. Plato’s dualist theory holds that there are actually two different worlds: the physical world of appearances and the higher world of intelligible Forms. For Plato, human beings live in a visible world of the sensible or physical and the invisible world of the intelligible or abstract. This Platonic dualism was carried forward into a similar separation in the human person between mind and body.” Don G. Rushing & William D. Janicki, Treatment of Posttraumatic Stress Disorder Claims Under the Warsaw Convention, 70 J. Air L. & Com. 429, 430 (2005). 29 Ron Shapira, Structural Flaws of the “Willed Bodily Movement” Theory of Action, 1 Buff. Crim. L. Rev. 349, 385 n. 121 (1998). 30 Alicia Juarrero-Roque, Fail-Safe Versus Safe-Fail: Suggestions Toward an Evolutionary Model of Justice, 69 Tex. L. Rev. 1745, 1748 (1991). 31 Brett G. Scharffs, Law as Craft, 54 Vand. L. Rev. 2245, 2267 (2001). 32 Aloysius A. Leopold & Marie E. Kaiser, The Lord in the Law: Reflections on a Catholic Law School, 25 St. Mary’s L.J. 385, 389 (1993). 33 Aristotle, Metaphysics bk. I, pt. 9 (W.D. Ross trans., Clarendon Press 1924) (350 B.C.E.), available at: http://classics.mit.edu/Aristotle/metaphysics.mb.txt; see

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though dualists,36 did not attempt to defend Platonic idealism despite the solipsistic37 scepticism of Descartes, which could admit Plato’s purely noëtic world.38 In fact, Aquinas seems to be the most recent person to have taken Platonic formalism (epistemic idealism) seriously.39 In law, Platonism plays out as formalism: to see the law in rigid terms of eternal and unchanging forms of action, which themselves are reflections of logical structure. Plato was wrong: reality is not the reflection of ideas; ideas are a reflection of reality. However, attempts to oppose formalism with relativism have not only failed, they have backfired because, though Plato was wrong, Cicero was right – law is right reasoning in accord with nature40 – and consequently Holmes was wrong:41 the life of law is logic also Aristotle, Posterior Analytics bk. B, pt. 3, l.10 (Hippocrates G. Apostle trans., 1981); Aristotle, Prior Analytics bk. A, pt. 31 (Robin Smith trans., 1989). 34 Rene Descartes, Meditations on First Philosophy (1641). Descartes reasons from his own existence to some first cause. 35 Pascal, for example, specifically declines any attempt to prove the existence of “God” that is a nöous. “Therefore I shall not undertake here to prove by natural reasons either the existence of God, or the Trinity, or the immortality of the soul, or anything of that nature . . .” Blaise Pascal, Pensées § VIII (1660). 36 See generally id. 37 Solipsism is the philosophical theory that the self is the only thing that can be known and verified. See Descartes, supra note 34 (English); id., available at: http:// abu.cnam.fr/cgi-bin/go?medit3 (French). 38 “The Republic restates the same thought in the form of the distinction between two realms: that of the noëton, accessible to reason, nous, and of, which knowledge, noësis, is possible; and that of the horaton, visible to the eyes, and about, which there can be only doxa, what seems, mere opinion.” Philippe Nonet, In Praise of Callicles, 74 Iowa L. Rev. 807, 808 (1989). 39 See, e. g., St. Thomas Aquinas, Summa Theologica (Fathers of the English Dominican Province trans., 1947). 40 “[E]st quidem vera lex recta ratio, naturae congruens, diffusa in omnis, constans, sempiterna, quae vocet ad officium iubendo, vetando a fraude deterreat . . . [H]uic legi nec obrogari fas est, neque derogari aliquid ex hac licet, neque tota abrogari potest . . .” Marcus Tullius Cicero, De Republica: Scripta Quae Manserunt Omnia 96, bk. III, pt. 22, § 33, ll. 26–32 (K. Ziegler ed., Leipzig 1969) (Bibliotheca Teubneriana fasc. 39). 41 Holmes argues for a pre-scientific view of law: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices, which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by, which men should be governed.” A simple reductio meets the argument. If syllogisms are irrelevant why bother thinking? Why not just break out the billy clubs? If law is nothing but passion and prejudice, then law has no moral force and I might as well go be a criminal. Of course, if one were a criminal one would have a bad life and society would be worse off. Actions follow ideas. Moreover, if we look at the law, we see

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in action; it is phronesis,42 the practical reasoning that looks at the world as it is and attempts to shape the world as it ought to be. Holmes did not realize he was trying to describe phronesis because his ideas were influenced by Hume43 and Hume is interpreted as rejecting the possibility of practical reasoning because he (supposedly) does not see that moral prescriptions can be based on material analysis.44 One can infer from all this that Platonic idealism is indefensible. It has been quietly abandoned to be replaced first by materialism, then by scepticism, and now, perhaps, by relativism. Both relativism45 and Platonic idealism46 are unscientific because they lack an empirical foundation, which is definitive of science.47 The material world is radically separated from and anterior to the world of ideas (Plato) or relativised (post-modernism),48 and so no scientific verification of their propositions is possible. it is more than physical force it is also moral constraint. Holmes’ view is amoral, but the province of law is morality. See Oliver Wendell Holmes, Jr., The Common Law (1881). 42 Scharffs, supra note 31, at 2265–66. 43 Holmes and Hume alike embrace Western values but question their ultimate foundation. Rob Atkinson, Law as a Learned Profession: The Forgotten Mission Field of the Professionalism Movement, 52 S.C. L. Rev. 621, 653 (2001). 44 David Hume, A Treatise of Human Nature 416 (L.A. Selby-Bigge & P.H. Nidditch eds., Oxford Univ. Press 2d ed. 1978) (1739–40). (It is not “contrary to reason to prefer even my own acknowleg’d lesser good to my greater”). 45 Leti Volpp, Feminism Versus Multiculturalism, 101 Colum. L. Rev. 1181, 1203 n. 98 (2001). 46 “[S]ome form of mind-body dualism has been part of Western philosophy since Plato . . .” Mark Cammack, In Search of the Post-Positivist Jury, 70 Ind. L.J. 405, 411 (1995). 47 J.B. Ruhl, The Battle over Endangered Species Act Methodology, 34 Envtl. L. 555, 564 (2004). “Scientific Method . . . is defined by the use of empirical observation and experimental testing to formulate and evaluate hypotheses, usually about causal mechanisms, with, which to predict phenomena . . .” Id. 48 Some even try to combine relativism with dualism. For example, Radbruch: “combines relativism with neo-Kantian methodological dualism: statements of what the law ought to be may be established only through other statements concerning the ‘ought,’ never through what the law ‘is.’ ‘Ought’ statements may not be ‘discerned but only professed.’ Therefore, legal science in the field of the ‘ought’ can achieve three things: (1) ‘establish the means necessary to realize the end that ought to be attained,’ (2) ‘think a legal value judgment through down to the remotest means for its realization, [and] . . . clarify it up to its ultimate presuppositions of world outlook,’ and (3) develop systematically the ‘conceivable ultimate presuppositions and, consequently, all starting points of legal evaluation.’ Radbruch presents a relativistic legal philosophy that exhaustively presents the individual with all possibilities from, which only he or she can decide.” Heather Leawoods, Gustav Radbruch: An Extraordinary Legal Philosopher, 2 Wash. U. J.L. & Pol’y 489, 509–10 (2000). However, where is the law in that? Law

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II. Relativism The task of epistemology is to determine “what is knowledge.”49 Postmodern thought often presents relativism as though it were something new, a radical reaction to the violence and cynicism of two world wars. In fact, however, truth scepticism is nothing new. Even among pre-modern philosophers, notably the cynics,50 but also the sophists generally,51 truth scepticism, even nihilism, could be found. More recently, the roots of (post-) modern relativism are generally ascribed, with some degree of justice and distortion, to David Hume52 and Friedrich Nietzsche.53 The post-modernists are riding the crest of a wave of scepticism, which has indeed grown due to the failure of the nation-state system to preserve peace in the last century. However, post-modernism as a system of thought is neither in fact particularly new nor is it correct. 1. Nietzsche Nietzsche is probably the most well known modern example of scepticism towards received truth.54 The idea of progress is a central defining point of both modernity55 and Nietzsche’s work. Thus, Nietzsche is not a post-modis nothing other than ought statements. You ought not to steal (or you will go to jail). In fact, any “ought” statement can be recast into a conditional (“if . . . then”) statement. Thus, “you ought not to steal” really means: “If you steal then you may go to jail.” Seeing the world only in terms of descriptions of existing facts or prescriptions of possible states is a static view. A dynamic worldview takes into account state-changes. The world is not only about static facts (“is” statements) it is also about dynamic processes (conditionals). If any ought statement can be recast as a conditional then Hume’s (supposed) dichotomy breaks down completely. 49 “Epistemology is the philosophical study of what is ‘knowledge’ (what it is to know) and how do we come to know (when do we have ‘knowledge’).” Scott DeVito, The Ontology of Copyright Infringement: Puzzles, Parts, and Pieces, 35 Conn. L. Rev. 817, 817 n. 3 (2003). 50 E. g. “Cynics”, Internet Encyclopedia of Philosophy (2001), http://www.utm. edu/research/iep/c/cynics.htm. 51 Id. at Sophists, http://www.utm.edu/research/iep/s/sophists.htm. 52 “Hume’s scheme jeopardizes the intersubjective ascribability of merit. One might no longer be allowed to ask whether tolerance is good, only whether it is good with me or with you; or worse still, with me or you now . . .” W. D. Falk, “Hume on Is and Ought”, in Ought, Reasons, and Morality 123, 138 (1986). 53 See, e. g., Friedrich Wilhelm Nietzsche, Beyond Good and Evil (Helen Zimmern trans.), available at: http://digital.library.upenn.edu/webbin/gutbook/lookup? num=4363 (Project Gutenberg). 54 “During the nineteenth century, skepticism toward the Enlightenment concept of objective truth appeared everywhere, from Bentham’s dismissal of natural law as ‘nonsense on stilts’ to Neitzsche’s antifoundationalism.” James A. Gardner, Madi-

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ernist: he is part of the discourse of modernity because he believes in progress and makes proposals on how to obtain it. The objective of Nietzsche’s work is the conscious evolution of the human species. However, unlike his contemporary and fellow modernist Karl Marx,56 who sees the progress of the species as driving towards new and better modes of production throughout history, Nietzsche defines progress as the ability of the species to genetically surpass itself via Darwinian evolution.57 Both are modernists, scientists, and materialists, but they take different perspectives on progress. Much of what Nietzsche says appears on first glance to be post-modernist.58 He is certainly sceptical about the truth. However, Nietzsche’s mockson’s Hope: Virtue, Self-Interest, and the Design of Electoral Systems, 86 Iowa L. Rev. 87, 171 (2000). 55 Tawia Ansah, A Terrible Purity: International Law, Morality, Religion, Exclusion, 38 Cornell Int’l L.J. 9, 64 (2005). 56 See Karl Marx, Capital (Frederick Engels ed., 1936). 57 See Friedrich Nietzsche, Thus Spake Zarathustra (Thomas Common trans., 1960) [hereinafter Thus Spake Zarathustra]. 58 Many mistake Nietzsche for a postmodernist. E. g., Barbara Stark, International Human Rights Law, Feminist Jurisprudence, and Nietzsche’s “Eternal Return”: Turning the Wheel, 19 Harv. Women’s L.J. 169, 182 n. 68 (1996). Nietzsche’s commitment to objective truth and progress both place him firmly in the modernist camp. Even those who recognize some problems between Nietzsche and postmodernism fail to recognize just how deep the split is. For example, “Postmodern thinkers generally trace their intellectual debts back to Nietzsche, but Nietzsche stands diametrically opposed to the caricature of a postmodern thinker who is paralyzed by the collapse of metaphysics and therefore incapable of critical theorizing. Consequently, Gadamer’s arguments against Habermas’s critical theory do not carry much force in response to Nietzschean critique. My thesis is that by understanding how Nietzsche can at once be a critical theorist and a postmodern critic of the metaphysical tradition, we can develop an important resource for articulating the role of critical theory within Gadamer’s philosophical hermeneutics.” Francis J. Mootz III, Nietzschean Critique and Philosophical Hermeneutics, 24 Cardozo L. Rev. 967, 971 (2003). The ignorance continues: “Friedrich Nietzsche, who has been called the ‘patron saint of [P]ostmodern philosophy,’ proclaimed the death of God in what amounted to a rejection of Modern thought, primarily a rejection of the idea of a ‘unifying center’.” Matthew McNeil, The First Amendment out on Highway 61: Bob Dylan, RLUIPA, and the Problem with Emerging Postmodern Religion Clauses Jurisprudence, 65 Ohio St. L.J. 1021, 1040–41 (2004). Wrong again. First, the mixed metaphor of a patron saint of a godless religion is inapt. Nietzsche is not looking to build a church filled with what he and Jesus both regarded as sheep. He is seeking “wolves” to go “hunting” with. Second, and more importantly, Nietzsche does not reject modernity. Rather, he seeks to advance modernity to the next stage in its evolution. A rejection of pre-scientific superstition is a part of modernity’s belief in Vorsprung durch Technik – progress through technology. Nietzsche may be a forerunner of postmodernism but is no post-modern. After all, truth skepticism goes back all the way to William of Occam. So calling Nietzsche postmodern on that basis would justify calling the pre-modern Occam postmodernist, which is just ridiculous.

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ing scepticism of the received wisdom, as a product of rote repetition of those in power, does not mean he rejects the possibility of the existence of truth. Nietzsche is no nihilist. In fact, he was passionate about truth. For Nietzsche, if truth can exist and is knowable, then once determined he would defend it with the Wagnerian ardor of Gotterdämerung: “the absolute truth – against itself.”59 It is exactly the love of truth that pushed Nietzsche to ask: what is truth? Aristotle describes virtue generally as the median between equally opposite and destructive antitheses.60 For example, Aristotle regards the virtue of prudence as a median between the extremes of rashness and cowardice.61 But, though Aristotle counsels prudence, Nietzsche counsels the exact opposite. Nietzsche’s Hyperborean is a man of extremes. Nietzsche once said “I am not a man; I am Dynamite.”62 Like Heraclites,63 (who also influenced Marx on this point) Nietzsche believes that truth results from conflict. Thus, though sceptical about existing “truths,” Nietzsche believes the truth could exist and, if it does, is worth fighting for. Post-modernism, or at least some post-modernists, with their rejection of universal absolutes and ideology, go beyond Nietzsche: they do not argue for the clash of the absolute “truth” against itself.64 Ultimately, they argue that truth is relative to subjective standards.65 However, that proposition eventually collapses into 59

Friedrich Wilhelm Nietzsche, Götzen-Dämmerung bk. 5 (1888). Aristotle, Nicomachean Ethics 44–48, bk. 2, ch. 7 (Martin Ostwald trans., 1962). 61 Thomas L. Shaffer & Mary M. Shaffer, Character and Community: Rispetto as a Virtue in the Tradition of Italian-American Lawyers, 64 Notre Dame L. Rev. 838 (1989). 62 “Ich bin kein Mensch, ich bin Dynamit.” Friedrich Nietzsche, Warum Ich Ein Schicksal Bin 1 (1889). 63 Heraclites, The Fragments (b), 8 (c. 500 B.C.), http://ratmachines.com/philosophy/heraclites/. 64 “The elevation of rationalism to a position of ultimate authority has created an intolerance for ambiguity and subjective beliefs.” In short, the emergence of moral relativism in Western thought, in, which it is believed that there are no objective truths and that morals are relative and subjective, has led contemporary legal theories to reject natural law and other normative concepts. Alexander offers the possibility, however, that it is really the limits of human rationality, and not the limits of morality, that prevent us from perceiving ultimate, substantive truths. Alexander contends that by adopting an epistemology aware of human limitation, contemporary jurisprudence would not develop narrow and short-sighted answers to dilemmas that are inherently not objective, not quantifiable, and not concrete. Instead, a humbled epistemology demands a jurisprudence that seeks the assistance of disciplines other than economics and science such as theology and moral philosophy.” Erin Englebrecht, Three Fallacies of the Contemporary Legal Concept of Environmental Injury: An Appeal To Enhance “One-Eyed Reason” with a Normative Consciousness, 18 Tul. Envtl. L.J. 1, 38 (2004). 60

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the conclusion that there can be no objective universal truth, and thus that there can be no science (episteme), only opinion (doxa). And this failure of moral vision, resulting from an erroneous axiology, is exactly what has crippled the Left in the United States. At first glance, the post-modern argument that “all truth is relative” might seem unproblematic. However, with reflection, it becomes clear that saying “all truth is relative” is equivalent to saying “there is no objective truth.” The relativist statement in fact creates a paradox. That fact should tip us off that something may be wrong in the world of relativism. This chapter refers to this as the paradox of the “unknowing knower”: if truth does not exist, then how can we know that truth does not exist? Logically speaking, we cannot. In this way, relativism leads us to truth nihilism. And truth nihilism in turn either disintegrates on the paradox or degenerates into a pure volonté de puissance66 (i. e., brute force). Relativist thought thus risks degeneration into fascism – if truth is unknowable and moral values relative, then only force exists. And if force is the only real argument, then why not be fascist?67 This paradox plagues post-modern thought and dooms it to irrelevance – or worse. And this too explains why the relativist position must be rejected. Its foundational presumptions are wrong, and it leads us nowhere we want to go. The relativist position is thus easily dispatched by either the paradox of the unknowing knower or the reductio ad absurdum that truth nihilism and moral relativism can eventually result in fascism. There are, however, better positions of truth scepticism. Some, such as Nietzsche’s, rise to the level of brilliance.68 However, most of them will also fail – albeit not so quickly or nicely as truth nihilism. In its more refined form, the truth sceptics’ argument against the existence of truth is really only an argument against the 65

Steven Best & Douglas Kellner, Postmodern Theory: Critical Interrogations (1991), available at: http://www.uta.edu/huma/pomo_theory/. 66 “Will to power.” 67 That point also constitutes a general critique of legal positivism. However, naturalist theories of law cannot offer an alternative to legal positivism because they rely at least implicitly (in the case of Aquinas explicitly) on Platonic idealism. This chapter suggests that any alternative to purely voluntarist theories of law must be founded on an ontology, which rejects Hume’s dualism just as it must also be founded on an epistemology, which rejects Plato’s dualism. 68 In fact, Nietzsche believed that truth, if it exists, is only discovered through the battle to the death with its opposite. For Nietzsche, truth must fight to live: this is his will to truth; not the will to shape “truth” out of falsehood but the will to the battle of truth against falsehood. In this, Nietzsche, like Marx (e. g., Karl Marx & Frederick Engels, Manifesto of the Communist Party (1848), available at: http:// www.hartford-hwp.com/archives/26/176.html), harkens back to Heraclites (Heraclites, supra note 63, at (b)). See Friedrich Nietzsche, Menschliches, Allzumenschliches (erster Hauptstück) (1878).

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ability to cognize truth. The truth sceptic argues: truth may (or may not . . .) exist, but even if truth exists it may not be cognized (i. e., known, as such). The “strong” version of this argument, that truth does not exist, has already been shown to be flawed. This weaker version, that the truth is unknowable, leads to the same conclusion, that science would be impossible. It seems almost as untenable, by reductio. However, what about truth scepticism? What happens if only some truths are unknowable? Namely, what if we accept the validity of our sense impressions and use our perceptions of reality as the basis for objective descriptions of reality? Then some truths would be knowable – namely truths about material facts – and we would be out of the dark (relativism) and back into science. That is Nietzsche’s position – at least some truths are knowable. Thus, Nietzsche is faithful to the idea of truth because he rejects intersubjectivity.69 Truth may or may not always be knowable, but at least sometimes it is, and thus science is possible. Nietzsche is willing to entertain the possibility that truth, or at least some of the truth, could be generally incapable of cognition (i. e., formal demonstration). Basically, Nietzsche admits we might all be staggering around in the dark – and that might be inalterable, though he clearly hopes otherwise. However, if no truth at all were possible, we would not and could not know it. For this reason, our praxis must presume that truth is possible and then fight for it. Precisely because Nietzsche defends truth he accepts that we should live in a world of scepticism because it is possible, for Nietzsche, that the truth value of some statements may be unknowable (which is a different proposition than that there is no truth). Misapprehension of this fine distinction is one reason why post-modernism presents untenable positions. It overstates truth scepticism and elevates it to intersubjective relativism or nihilism. Understanding these errors makes it easier to reject them. Rejecting relativism makes it possible to argue from a moral viewpoint against economic values as the standard par excellence of political discourse. But while Nietzsche admits it is possible that we cannot know the truth about all objects, he does believe, if only for the practical reason stated, that it is possible to know the truth about some objects. Just as Nietzsche recognizes the existence of darkness (ignorance) in the Platonic cave70 (the 69

Friedrich Nietzsche, Die fröhliche Wissenschaft (1882). Friedrich Nietzsche The Sign, in Thus Spake Zarathustra, supra note 57, at 365, ch. 80. Nietzsche describes his higher men – the next evolutionary stage in human development – as living in a cave: “In the morning after this night however Zarathustra sprang up from his camp, girded his loins, and came out of his CAVE glowing and strong, like the dawn’s SUN, which comes out from behind dark mountains.” You giant star’, he spoke, as 70

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material world, specifically The City)71 and points out the possible existence of false illumination (the central fire),72 he also admits the Apollonian possibility (but not the necessity) that there might be the true light of reason73 (the sun in Zarathustra) and that the only way to find that light is to ruthlessly question its existence (because of the false light). It is this sort of a critical attitude that is needed to pose the sort of questions and find the answers needed to remedy the breakdown of American political discourse and its murderously incoherent foreign policy. The apotheosis of Nietzsche is cognition of his own ignorance: he knows he does not know. He has knowledge of his ignorance. That is, proverbially, wisdom.74 All philosophy may or may not begin in wonder.75 But all truth begins, often painfully, in the cognition of our own ignorance. Nietzsche’s entire work is defined around his reaction to his own ignorance. Americans are ignorant of foreign languages, geography, histories, religions, and cultures. One can rightly ask: Are American’s deliberately kept ignorant of foreign cultures and languages to make them more manipulable? Whether the ignorance is calculated or merely the result of physical isolation from the rest of the world, Americans can no longer afford the luxury of monolingualism and Amero-centrism. Only if Americans become conscious of their ignorance and take steps to cure it can they avoid the he had first spoken ‘you deep eye of luck and joy, what would be your joy and happiness if you did not have they whom you enlighten./And if they remain in their chambers while you are already awake and come to give and share – how would your pride be upbraided./Well. They still sleep these higher men, while I am awake. They are not my true comrades. I do not await them here in my mountains./I want to go to my work, to my day: but they do not understand what the signs of my morning are, my step is for them no wake up call./They still sleep in my cave”. 71 Id. at Zarathustra’s Prologue (especially pt.3: “The Rope Dancer”). 72 Plato, The Allegory of the Cave, in The Republic bk. VII (360 B.C.E.), available at: http://www.constitution.org/pla/republic.htm. “This wanderer is no stranger to me: many years ago he went by here. He is called Zarathustra; but he has changed. Then you carried your ASHES to the mountains: do you want to carry FIRE to the valleys? Do you not fear the arsonist’s punishment?” Id.; see Zarathustra’s Prologue, in Thus Spake Zarathustra, supra note 57 (author’s translation). Like Prometheus, Zarathustra brings men fire, yet he brings not the truth of reason (the sun) but the stolen Promethean fire. Is it a lie? 73 He does this in his metaphor about the sun. 74 “He who knows not and knows not that he knows not, is a fool . . . shun him. He who knows not and knows that he knows not, is ignorant . . . teach him. He who knows and knows not that he knows, is asleep . . . wake him. He who knows and knows that he knows, is a wise man . . . follow him.” Knows and Knows, http:// www.xenodochy.org/ex/quotes/knowsnot.html (Persian proverb). 75 Plato, Theaetetus (360 B.C.E.), available at: http://classics.mit.edu/Plato/theatu. html (citing Socrates).

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pain their ignorance causes. Americans do not know and think they know. They approach a vast complex world with simplistic universalist ideals, which are generally perverted and cynically used to advance a corporatist agenda. Worse, the occasional Left attempt to thwart that is crippled by relativism, which is also an example of knowing not that one knows not. Correcting the flawed relativism would empower efforts to oppose corporatism. Understanding the complexities of the world is a necessary first step to avoid “living in a glass towers and throwing stones.” But an entire reconceptualization not only of history and geography and language, but also the proper role of America in the world and of moral choice is necessary to stop the stone throwing and the counter-stone throwing. How many Americans must come home in coffins maimed and crippled to change these perspectives is anyone’s guess. In Thus Spake Zarathustra, we see Nietzsche, as Zarathustra, reject society and the crowd (i. e., The City, to seek the “all seeing eye” – the sun, representing Apollonian truth).76 However, even after this illumination, when he returns to The City he discovers he is still ignorant. For why else would the crowd reject him? Why else would the risk-takers and rope-dancers – the innovative catalysts of progress, his Heroes, forerunners of the next Man – plummet to their death? Only Nietzsche/Zarathustra’s ignorance of the limitations of homo sapiens could explain the masses’ rejection of enlightenment. But, though Nietzsche is rejected by the masses, he does not himself reject logical scientific truth. Rather, he believes that he has perceived an uncomfortable objective truth – that humanity, as it is, is not capable of perceiving or accepting all of the truth. This is also the conclusion of Leo Strauss77 and Machiavelli.78 But Nietzsche does not reach the conclusion of Strauss and Machiavelli, that one should be economical with the truth and use it sparingly for tactical advantages. Instead, Nietzsche takes a radical strategy that, if correct, perhaps outmanoeuvres Marx: if humanity as it exists on the whole is beneath the standard of rationality, risk-taking, and facing hard truths, then humanity must evolve beyond itself. Nietzsche’s objective is no less than to push the human species into the next phase of its upward evolutionary spiral. Marx seeks to 76

Thus Spake Zarathustra, supra note 57. “Strauss believed that the essential truths about human society and history should be held by an elite, and [h]e held that philosophy is dangerous because it brings into question the conventions on, which civil order and the morality of society depend.” R. Alta Charo, Passing on the Right: Conservative Bioethics Is Closer than It Appears, 32 J.L. Med. & Ethics 307, 311 (2004). 78 Niccolo Machiavelli, The Discourses 139, 143 (Bernard R. Crick ed. & Leslie J. Walker trans., Penguin 1970) (1520) (Machiavelli, like Plato, counseled religious hypocrisy). 77

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advance the human species as a collective methodically through technological progress. Nietzsche, in contrast, seeks out individuals who are “higher types,” precursors of the next strain of homo, in order to determine how to cultivate such exceptions to mediocrity so that their numbers will grow. Like Marx, he is trying to push the society forward following the logic of modernity, “progress,” but in a very different way. Such projects, however, are impossible without scientific truth. Both strategies simply outmanoeuvre dishonest tacticians like Leo Strauss or Machiavelli, who are playing for much lower stakes and are strategically blinded because of their tactical choice to deploy dishonesty. It is this sort of tactical shrewdness that leads the Left to wrongly reject moral discourse. Hoping to outmanoeuvre conservative moralists, most of the Left has abandoned the idea of morality. That, however, shifts all debates to economic values where the Left is doomed to lose because any redistributive agenda entails transaction costs and thus is uneconomical: slavery is profitable. By tactically sacrificing the idea of morality in vain hopes of evading conservative moralists, the Left commits a grave strategic error because the debates then are shifted out of the sphere of morality (where persons have inalienable value) to the sphere of the market where all is bought and sold according to one logic: profit. However, the worst excesses of that can be avoided with a correct appreciation of Nietzsche. Nietzsche is not a nihilist. Nietzsche is not even a relativist. Nietzsche is a moralist – but his morality is anti-Christian. A correct appreciation of Nietzsche’s contribution to a scientific understanding of morality would allow the Left to diminish and even escape it’s strategic error (the fool’s mate) at the hands of economist gained for a tactical advantage over the conservative moralists (the knight’s gambit). In sum, Nietzsche, though cryptic, is no liar. A truth sceptic, Nietzsche is ultimately a scientist. His scientificity comes through most clearly in Die fröhliche Wissenschaft (cognitively, The Frolicking Science, eu-logos – in some sense then a eulogy).79 Nietzsche believes in truth. However, his faith in truth is not the blind faith of religion: his faith in truth is founded on a sceptical experiential inquiry guided by a teleology only dimly perceived by most – a conscious effort to force the evolution of the human species. Postmodernists who see Nietzsche as their role model simply do not know what modernity is or what Nietzsche was saying about progress, truth, and science. 2. Gödel, Quine, Saussure Roots of post-modernism and relativism have been seen in Nietzsche, and the reason for their misapprehension has been explained. Nietzsche is 79

Nietzsche, Die fröhliche Wissenschaft, supra note 69.

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not the only source of confusion among post-modernists and other relativists. The most defensible position that seems relativist is the cognitive sceptic’s argument that we should distrust what we are told is truth and that truth may not always be knowable. Other defensible roots of indefensible positions can be seen in the works of Kurt Gödel, Willard Quine, and Ferdinand de Saussure. Gödel’s famous theorem that in a closed formal system all true theorems cannot be proven and all false theorems cannot be disproven supports the cognitive sceptic’s argument that truth cannot always be known.80 When understood, Gödel’s complex idea is a powerful one, but does not compel relativism in any way. Similarly, Saussure argues that the sign is an arbitrary value:81 for Saussure, there is no underlying universal root language common to all world languages.82 Similarly, Willard Quine argues that language is inevitably indeterminate as every term is mutually defined.83 Ultimately the sign is arbitrary: anything can stand for anything else.84 How correct is relativist epistemology? Though signs are mutually defined, they are not exclusively so defined. The sign is not completely arbitrary because certain signs are reflections of material facts and because some words are indeed phonemes. Linguistic determinacy is secured by anchoring signs in material objects. Representations of Quine that argue that his work implies that legal discourse be indeterminate because all argument is ultimately tautological miss the point and take Quine too far. All argument is ultimately founded on axioms and postulates, and thus is ultimately tautological. However, manoeuvring from axioms and postulates to theorems must nonetheless result from internally consistent rule generation methods, which may be valid or invalid. Their validity is a reflection, ultimately, of material facts and material processes. Law is like a formal system. Truth scepticism – unlike nihilism or relativism – is defensible. Language may (or may not) be an intersubjective construct. However, language is 80 K. Gödel: Über formal unentscheidbare Sätze der Principia Mathematica und verwandter Systeme, I. Monatshefte für Mathematik und Physik, 38, 173–98 (1931), translated in van Heijenoort: From Frege to Gödel (Harvard Univ. Press 1971), available at: http://home.ddc.net/ygg/etext/godel/. 81 See Ferdinand de Saussure, Third Course of Lectures on General Linguistics (1910), available at: http://www.marxists.org/reference/subject/philosophy/works/ fr/saussure.htm. 82 See Ferdinand de Saussure, Third Course of Lectures on General Linguistics (1910), available at: http://www.marxists.org/reference/subject/philosophy/works/ fr/saussure.htm. 83 W. V. O. Quine, Word and object (MIT Press 1960). 84 Peter Bichsel, “Ein Tisch ist ein Tisch,” Kindergeschichten (Berlin und Neuwied 1969).

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only indeterminate when we engage in the dualist error of seeing language as pure idea with no connection to the material objects that it describes and reflects. Most of the flaws in Western theory arise out of dualism.85 If the Left were to reject dualism, numerous dependent issues would fall into place. So long as the Left follows dualism, it will be presented with blind alleys and rabbit trails. However, a monist-materialist perspective allows us to escape from the problem of linguistic indeterminacy as the sign, even if syntactically arbitrary, is not semantically arbitrary because the sign is a reflection of a material object. As the syntax of the sign is intersubjective and its object is objective, signs are determinate functions. Language is not semantically arbitrary because objective knowledge exists. Additionally, because objective knowledge exists knowledge whether an objective morality exists and its content is possible. Returning the Left’s discourse to moral terms allows the Left to obtain the long absent traction needed to advance its arguments. As this chapter will show, the axiology that flows from dualism and relativism is fundamentally flawed. That flawed axiology, when consciously rejected, allows the Left to argue coherently for moral positions. Whenever the Left has taken up the failed relativist axiology to oppose conservative moralism, it has lost. It has neither changed the mind of the conservative moralists nor implemented its alternative vision of reality. Instead, it has undercut its own moral force. The Left, by taking up the failed relativist axiology has tried to develop and implement legal methods that distort discourse and mute critique of the dominant paradigm in the legal and political arena. Taking up the failed relativist axiology prevents effective legal reform. This failed axiology leads to incoherent political positions and the incoherence in contemporary political discourse. Understanding the source of these distortions is the first step in ending them. Ending the distorted and incoherent legal and political debates by taking up a correct monist and materialist axiology is a necessary step to rectifying injustice. 3. Constructivism: Popper We have already seen that for Plato our ideas construct the universe. Constructivism argues that knowledge is not discovered; rather it is created socially, and thus is constructed. For example, Saussure is a constructivist.86 Truth is not objective for the constructivist, rather it is intersubjec85

Dualism is a flawed theory. See Richard Hyland, The Spinozist, 77 Iowa L. Rev. 805, 822 (1992); Kimberly Kessler Ferzan, Opaque Recklessness, 91 J. Crim. L. & Criminology 597, 612 n. 42 (2001). 86 Ferdinand de Saussure, Cours de linguistique générale (1916).

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tive. However, the constructivist position runs into the same obstacles as relativism. Some facts clearly are not socially constructed. Similar to constructivism, and another possible root of relativism, is the falsification thesis of Popper. For Popper, like Nietzsche, all knowledge is tentative.87 However, Popper also argues that science is not the discovery or affirmation of positions but rather the falsification and rejection of competing theories.88 For Popper, it is not that we know that P is true, rather we know that not P is false.89 Again, this is similar to Nietzsche because it implies a sort of epistemological Darwinism, where easily falsified ideas fail quickly and less easily falsified ones continue to exist until finally disproved, but the surviving ideas are still subject to the possibility of falsification. Popper’s position is quite defensible and it is an example of what might appear to be relativism, yet is in fact good science.90 Essentially, Popper is arguing that knowledge is tentative and refutable, which is in fact a position of classic modern science since Francis Bacon.91 But when we see that scepticism is a root belief of the scientific method that leads us to a paradox, which might please Marx, the scientific method sows the seeds of its own destruction.92 The scepticism of the scientific method has prepared the ground for the intersubjectivist thesis that knowledge is socially constructed out of subjective experience. However, that, if true, would imply the impossibility of objective knowledge and of science.

87 Karl R. Popper, The Problem of Induction, in Popper Selections 101, 104 (David Miller ed., 1985). “[T]he whole apparatus of induction becomes unnecessary once we admit the general fallibility of human knowledge, . . . the conjectural character of human knowledge . . . [S]cientific knowledge is essentially conjectural or hypothetical.” Id. 88 Karl Popper, Objective Knowledge (1972). 89 Popper’s famous explanatory example is rendered thus by Bryan Magee, “although no number of observation statements reporting observations of white swans allow us logically to derive the universal statement: ‘All swans are white’, one single observation statement, reporting one single observation of a black swan, allows us logically to derive the statement: ‘Not all swans are white.’ ” Laurie W.H. Ackermann, Constitutional Comparativism in South Africa: A Response to Sir Basil Markesinis and Jörg Fedtke, 80 Tul. L. Rev. 169, 184 (2005). 90 See, e. g., Karl Popper, Stanford Encyclopedia of Philosophy (2002), available at: http://plato.stanford.edu/entries/popper/. 91 Francis Bacon, The New Organon or True Directions Concerning the Interpretation of Nature Ch. LXX (1620), available at: http://www.constitution.org/bacon/ nov_org.htm. 92 See also Karl Marx & Friedrich Engels, The Manifesto of the Communist Party, reprinted in Communism, Fascism, and Democracy 82–89 (Carl Cohen ed., 2d ed. 1972).

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4. Intersubjectivism According to relativists, all knowledge is subjective and socially constructed into an intersubjective reality, except, apparently, for the knowledge that knowledge is relative and intersubjective. Thus, intersubjectivism leads us to nothing other than a slightly more elaborate variant of the paradox of the unknowing knower. This regress into paradox can be avoided only if one admits the possibility of the objective knowledge of the subjectivity of knowledge. However, if we admit there is an objective epistemology, then why should objectivity be limited to epistemology? If epistemology can be objective, why could an objective moral science or physical science not also be possible? So the regress, if denied by that step, lets us get back into an objective view of the world. And the material facts of the objective world contradict the constructivist and relativist position. It is an objective fact that water always boils at a certain temperature regardless what we think or say about it. Thus, an unqualified non-cognitivist stance can be cogently defended, if at all, only with great difficulty, namely by admitting a position, which sneaks objectivity into the supposedly intersubjective universe through the back door. Why defend these awkward positions? Awkward positions such as these are the result of the sort of tactical gambits of the realists and the truth economies recommended by Strauss and Machiavelli. In this case, the supposed Left wing gambit, namely masking a Leftist morality in the guise of moral relativism or scientific neutrality after Weber (sometimes even relying on a radical individualist libertarian argument, which is another strategic error) backfires – which would probably delight Strauss – and hopefully demonstrates the danger of using the truth sparingly. The Left critique of morality attempts to undermine moral values with, which the Left disagrees, usually in an attempt to liberate the subject from power. This explains why radical individualism and/or libertarian arguments are sometimes made in bad defences of Left wing agendas. Those arguments ultimately backfire, however, because capitalism is individualistic and based on money. This is not the only way that supposed radicals, by taking opportunistic gambits, err. Undermining moral values elevates market values as the only objective scientific value. As most money is controlled by men, undermining moral values leads to elevating market values, which, in turn, leads to augmenting the power of gender males. Thus, the pseudo-Left gambit reinforces patriarchy and reiterates the hierarchy of the rich as more valuable than the poor. So rather than being a clever ruse or tactical advantage, that move is a clear loser as it twice loops right back into inequality. How would materialist ontology (the author’s position) impact the truth constructivist argument? Basically the constructivists argue that knowl-

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edge (i. e., verifiable statements of truth and falsehood) is constructed in an intersubjective world. However, if truth statements are objectively verifiable (i. e., if truth is an objective fact), then truth cannot be created but only discovered. And if truth is not created, but “merely” discovered, then the constructivist argument of a pure positive science collapses. This is wonderful for science, but it is terrible for moral relativism and explains why this author believes the relativist positions are generally indefensible. Having seen how post-modern epistemology collapses due to a subjectivism, which ultimately denies the possibility of science, we now turn to analyzing how this subjectivism cripples post-modern thought, preventing it from shaping vigorous normative propositions about acknowledged social problems and, in fact, reinforces patriarchy, hierarchy, and inequality by evacuating the moral sphere of all values other than market values.

C. Axiological Basis of Realist Legal Method – Hume and Kelsen In Part II it was shown that the epistemological relativism was a nonstarter and that a moral theory was at least possible, as knowledge is possible. Part III shows that an objective materialist moral theory is possible. Morality, in materialist terms, is that, which enables the human animal to survive and not merely to survive, but also to prosper and obtain the good life – the actualization of the human in all her powers. With an objective morality, a normative discourse outside of economic terms becomes possible, which in turn enables the Left agenda to be implemented. Several of the epistemological positions of relativism and constructivism, if properly qualified, appear defensible. Aristotle considered social justice as founded on an axiology, which was not natural, but varied dependent on the society one examined.93 What modernity calls social justice is, for Aristotle (who called it distributive or geometric justice),94 not a natural, but a positive, function and it varies from society to society.95 Thus, it may not be surprising that the axiological positions of relativism appear to be less subject to critique than the epistemological positions. However, the axiological positions of relativism are nonetheless hard to defend. 93 See Aristotle, Politics, in The Works of Aristotle Translated into English bk. II, ch. V (Benjamin Jowett ed., Oxford Univ. Press 1966). 94 See Aristotle, Nicomachean Ethics 107 (D.P. Chase trans., Ernest Rhys ed., J. M. Dent & Sons Ltd. 1911). 95 Aristotle, Politics, supra note 90, at bk. V.

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Moral relativism, reflected in Weber’s value free neutrality,96 essentially asserts that either (1) moral values do not exist, that they are in fact purely subjective elements of personal taste,97 or (2) even if moral values do exist, they are not capable of cognition. Epistemological relativism implies axiological relativism (though the reverse is not true). That implies that the existence of moral values is unknowable. However, some values, such as the inherent value of human life, are indeed universal.98 A rough factual moral standard can be the tendency of an act or acts to foster the survival of the human species. Such a standard is not subjective; it is based in the material world. Thus, it is capable of scientific verification – that is, a materialist and not a Platonic or neo-Platonic formal idealist measure. The reason that moral relativism appears attractive to those who would critique Western values is because Western moral theory neither prevented nor sanctioned witch hunts,99 crusades,100 slavery,101 imperialism,102 or world wars. Western moral theory even at times actively encouraged such brutality and inhumanity.103 All too often the old “moral” values were 96 Max Weber, “Objectivity” in Social Science and Social Policy, in The Methodology of the Social Sciences 49 (Edward A. Shils & Heary A. Finch trans. and eds., 1949). Like Hume, Weber is only proposing a prudent methodological counsel as a way to avoid confusion. 97 “Understanding and ‘taste’ (by, which merit is discovered) address themselves to different issues. The one is the ‘discovery of truth and falsehood’ the other the importance of things to us . . . their relevance for us as things to be responded to with favor or disfavor.” W. D. Falk, Hume on Is and Ought, supra note 52, at 554. “Because merit is discerned by taste it is not and cannot be among the facts discovered by the understanding.” Au: We were unable to verify quotes in this FN; we could not find quote in source. “Understanding and ‘taste’ (by, which merit is discovered) address themselves to different issues. The one is the ‘discovery of truth and falsehood’ the other the importance of things to us . . . their relevance for us as things to be responded to with favor or disfavor.” Id. at 551. Au: We were unable to verify quotes in this FN; we could not find quote in source. 98 Sir Basil Markesinis & Jörg Fedtke, The Judge As Comparatist, 80 Tul. L. Rev. 11, 148 (2005). 99 Gila Stopler, Gender Construction and the Limits of Liberal Equality, 15 Tex. J. Women & L. 43, 51 (2005). 100 Andrew Coleman & Jackson Maogoto, Democracy’s Global Quest: A Noble Crusade Wrapped in Dirty Reality? 28 Suffolk Transnat’l L. Rev. 175, 216 (2005). 101 See, e. g., A. Leon Higginbotham, Jr., The Ten Precepts of American Slavery Jurisprudence: Chief Justice Roger Taney’s Defense and Justice Thurgood Marshall’s Condemnation of the Precept of Black Inferiority, 17 Cardozo L. Rev. 1695 (1996). 102 See, e. g., Michael J. Klarman, Race and the Court in the Progressive Era, 51 Vand. L. Rev. 881, 892 (1998). 103 Hart, then Fuller describes this as the problem of “immoral morality.” Lon L. Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71 Harv. L. Rev. 630, 636 (1958).

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immoral. However, rejecting a failed moral system is itself a moral choice. Moral relativism can neither claim normative power nor reject other theories of morality – that would require a value judgment. And relativists regard value judgments as meaningless or impossible, and thus impermissible. In fact, however, we can and do have objective material standards by, which we can judge the moral worth of any society – namely, the life expectancy of its members and several other indicia as well (e. g., infant mortality, literacy, homelessness). When radical scholars wish to reject the failed Western morality, they should not take the relativist gambits because (1) with no moral ground to stand on, their own arguments can become relativized, and thus marginalized, and (2) rejecting moral arguments leads to an augmentation in the power of the market as arbiter of male power (because men control most of the money) and individualism. The presupposition that moral values are statements about facts and not themselves facts can be traced to David Hume,104 who is the last major root of erroneous post-modern thought that we will examine. Hume, in turn, influenced Kelsen to adopt this dualism. For Hume and Kelsen, there is an essential and ineluctable difference between statements of fact (“is” statements) and statements about facts (“ought” statements).105 For Hume, to state that there is insufficient food in Ireland to feed the Irish is a statement of fact: either there are or are not X kilograms of wheat needed to feed Y persons to avert starvation. A statement, however, that there is insufficient food to feed the Irish (Somalians), and, therefore, one ought to donate food to them is, according to Hume, an “ought” statement. Hume is generally presented as rejecting the viability of “ought” statements as being implicit in “is” statements, and thus as rejecting normative and practical syllogisms.106 That representation, however, is inexact.107 Hume does infer 104 “In Book III, and in Book II, Part III, Section III (Of the influencing motives of the will), Hume is concerned to show that reason alone can never produce any action, or give rise to volition (T414), and the same faculty is as incapable of preventing volition, or of disputing the preference with any passion or emotion (T414– 15). Hume uses this result in Book III, Part I, Section I, to show that the results of morality . . . are not conclusions of our reason (T457).” B. Winters, “Hume on Reason,” 5 Hume Stud. 1, 230 (1979), available at: http://departments.oxy.edu/philoso phy/hs/issues/v5n1/winters/winters-v5n1.pdf. 105 “It is generally accepted that the first person to deny the possibility of this inference [from is to ought] was David Hume.” N. Capaldi, Hume’s Rejection of ‘Ought’ as a Moral Category, 63 J. Phil. 126, 126 (1966). 106 David Hume, A Treatise of Human Nature 1739–40 (L.A. Selby-Bigge & P.H. Nidditch eds., Oxford Univ. Press 2d ed. 1978) (asking readers to note the distinction between is and ought statements and to explain how one can be derived from the other – and nothing more nor anything less).

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norms.108 But proper normative inference,109 according to Hume, must be explicitly declared.110 In fact, the practical syllogism evident by the example of a famine is obvious. We must feed the poor not only for pleasant altruistic reasons, but also for practical ones: desperate people do desperate 107 “Hume’s point in the Inquiry, and in the ‘is-ought’ passage, if read in the light of his comments in the Inquiry, is not to deny that merit is cognitively derived from fact but to make sure that this derivation is not mistaken for deduction . . . The Inquiry, more so than the Treatise, shows Hume’s concern in this matter to be twoedged: to ward off the entrenched confusion of evaluative inference with demonstrative proof; and to show what cognitive procedure is instead . . . Hume’s point is that the facts as known are the basis, not of a formal, but rather of an experimental, proof.” Werner David Falk, Hume on Is and Ought, 6 Canadian J. Phil. 562–63 (1976). 108 “Hume makes it clear that he believes that factual considerations can justify or fail to justify moral rules.” A.C. MacIntyre, “Hume on ‘is’ and ‘ought,’ ” in The Is-Ought Question 485, 489 (W.D. Hudson ed., MacMillan 1969). 109 While Hume is skeptical about causality and thus deduction, he is even more radical in his critique of induction: “[A]n assumption that arguments must be either deductive or defective . . . is the very assumption, which underlies Hume’s skepticism about induction. And this skepticism is commonly treated as resting upon, and certainly does rest upon, a misconceived demand, . . . ‘the demand that induction shall be shown to be really a kind of deduction’. This is certainly an accurate way of characterizing Hume’s transition from the premise that ‘there can be no demonstrative arguments to prove, that those instances of, which we have had no experience resemble those of, which we have had experience’ to the conclusion that ‘it is impossible for us to satisfy ourselves by our reason, why we should extend that experience beyond those particular instances, which have fallen under our observation.’ Part of Hume’s own point is that to render inductive arguments deductive is a useless procedure. We can pass from ‘The kettle has been on the fire for ten minutes’ to ‘So it will be boiling by now’ (Strawson’s example) by way of writing in some such major premise as ‘Whenever kettles have been on the fire for ten minutes, they boil.’ But if our problem is that of justifying induction, then this major premise itself embodies an inductive assertion that stands in need of justification. For the transition, which constitutes the problem has been justified in the passage from minor premise to conclusion only at the cost of reappearing, as question-beggingly as ever, within the major premise. To fall back on some yet more general assertion as a premise . . . would be to embark on a regress, possibly infinite and certainly pointless.” Id. at 487. “[S]ince Hume holds in some passages on induction at least that arguments are deductive or defective, we could reasonably expect him to maintain that since factual premises cannot entail moral conclusions . . . there can be no connections between factual statements and moral judgments . . . [H]is remarks on “is” and “ought” are not only liable to receive but have actually received a wrong interpretation.” Id. at 488. 110 “What I have so far argued is that Hume himself derives ‘ought’ from ‘is’ in his account of justice. Is he then inconsistent with his own doctrine in that famous passage? Someone might try to save Hume’s consistency by pointing out that the derivation of ‘ought’ from ‘is’ in the section on justice is not an entailment and that all Hume is denying is that ‘is’ statements can entail ‘ought’ statements, and that this is quite correct.” Id. at 492.

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things; therefore, alleviating famine reduces the likelihood of being attacked or robbed. Positive reasons exist as well. By aiding the victims of famine, their descendants may be more favourable to our descendants. Of course, humanity also provides a practical justification to explain why the fact of famine implies the act of feeding. We are social animals, we are not cannibals, and part of what separates us from sharks is the fact that we have compassion for the weak. All of this shows that the practical measure of morality is whatever ensures species survival. For Hume and Kelsen, the difference between “is” and “ought” is ineluctable and essential. Hume presents this dualistic difference as a postulate: he does not seek to prove the existence of that difference. He sees it as fundamental (i. e., axiomatic). Hume thus does not raise or refute the idea that “ought” statements might also be fact – an alternative possibility this chapter presents. The idea that Hume’s “law” holds that statements of “is” and “ought” are fundamentally different and that the one cannot be derived from the other is an interpolation of Hume based on a presumption that he did not necessarily make.111 It is certainly not the only possible interpretation of Hume.112 Further, Hume’s dualism is not a necessary (i. e., 111 “Hume’s statements about moral sentiments are confused with his statements about moral judgments. It is this confusion, which largely accounts for the misinterpretations of (I-O). That (I-O) is not concerned with moral judgments but with moral sentiments is best seen in two ways. First, the entire section deals with a single problem: the attempt to show that moral distinctions or sentiments are perceived not as relations of ideas but as impressions. Second, the conclusions of (I-O) all deal with the analysis of moral distinctions as impressions. Since (I-O) concerns moral sentiments and not moral judgments, we may inquire into the cause of the confusion. At least one reason is that the paragraph is occasionally read or quoted in an incomplete manner . . . Once we accept the view that moral distinctions are impressions, we must also accept the fact that we can make inferences about such distinctions and even infer their existence from accompanying circumstances.” Capaldi, Hume’s Rejection of Ought as a Moral Category, supra note 102, at 135–36. 112 “[Hume] is arguing that if reason is viewed on the traditional conception, then reason does not determine us to have beliefs, e. g. about the unobserved. However, he does not stop with this result. Hume is trying to give an account of human nature based on an examination of how we in fact operate, and when he investigates the processes that go on in us in coming to believe things, he comes to a discovery that we do reason to our beliefs, but what goes on when we reason is not what was traditionally thought to occur. His empirical investigation, then, results in a different understanding of what reason is like, and when reason is viewed according to his interpretation it can be seen that in making the transition from the observed to the unobserved we are reasoning and inferring. I see Hume, then, as rejecting reason under one conception as inoperative in human affairs, but arguing that if conceived in another way, reason does cause belief and influence action. This interpretation, which I develop below, will resolve the paradoxes and explain the inconsistency between Book I and Books II and III.” Barbara Winters, Hume on Reason, in I Hume Stud. 229, 234 (1979).

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inevitable, position, and generates theoretical inconsistency). Moreover, courts do infer from facts to norms (induction)113 and from norms to facts (deduction) all the time. Those who interpolate Hume as arguing that “ought” can never be deduced114 from “is,” overstate Hume.115 He does not say that the derivation of “ought” from “is” is impossible.116 He certainly does not say there is no 113

“Under stare decisis, contrary to Hume’s law, courts may indeed derive, to some extent, an ‘ought’ from an ‘is,’ as the mere fact that cases were decided in a certain manner in the past lends normative force toward deciding like cases in a like manner in the future.” Steven Hetcher, Non-Utilitarian Negligence Norms and the Reasonable Person Standard, 54 Vand. L. Rev. 863, 866 (2001). 114 In fact Hume criticizes deduction because what is taken for causal may only be – perhaps even can only be – coincidence: “I have found that such an object has always been attended with such an effect, and I foresee that other objects, which are, in appearance, similar, will be attended with similar effects. I shall allow, if you please, that the one proposition may justly be inferred from the other; I know in fact, that it always is inferred. However, if you insist that the inference is made by a chain of reasoning, I desire you to produce that reasoning.” 4 David Hume, The Philosophical Works 30 (Green & Grose eds., Scientia Verlag 1964) [hereinafter Hume, The Philosophical Works]. “All inferences from experience therefore, are effects of custom, not of reasoning.” Id. “All our reasonings concerning matter of fact are founded on a species of Analogy, which leads us to expect from any cause the same events, which we have observed to result from similar causes. Where the causes are entirely similar, the analogy is perfect, and the inference, drawn from it, is regarded as certain and conclusive: nor does any man ever entertain a doubt, where he sees a piece of iron, that it will have weight and cohesion of parts; as in all other instances, which have ever fallen under his observation. However, where the objects have not so exact a similarity, the analogy is less perfect and the inference is less conclusive; though it still has some force, in proportion to the degree of similarity.” Id. at 85. “[M]en, learn many things from experience and infer, that the same events will always follow from the same causes.” Id. 115 For example, “The standard interpretation of this passage takes Hume to be asserting here that no set of nonmoral premises can entail a moral conclusion. It is further concluded that Hume therefore is a prime opponent of what Prior had called “the attempt to find a ‘foundation’ for morality that is not already moral.” Hume becomes in this light an exponent of the autonomy of morality and in this at least akin to Kant. In this paper I want to show that this interpretation is inadequate and misleading.” MacIntyre, “Hume on ‘is’ and ‘ought,’ ” supra note 108, at 486. 116 Falk noted: “He denies the deductibility of the latter from the former, as the ‘ought’ expresses ‘a new relation or affirmation’, ‘entirely different from the others’. And this is commonly taken as saying that the ought statement is ‘different’ and non deducible, because it is no longer a ‘purely factual statement,’ to wit one that makes another ordinarily testable truth claim. However, recent criticism, by W.D. Hudson and others, points out that Hume says other things seemingly inconsistent with this . . . How is one to understand Hume so as to save him here from incoherence? It is said by Antony Flew that Hume really meant that moral statements, rather than being about attitudes, serve to express them. The real Hume was the ancestor of

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connection between them. What Hume does say is that whoever wishes to make the transition from “is” to “ought” must explicitly enumerate exactly how they make that transition.117 In other words, Hume presents a prudential council:118 it is wise for a philosopher to explicitly show the connection between his normative and factual statements119 as this clarifies thinking both for the philosopher and his audience. Hume’s “law” is thus not a “law.” It appears, on closer examination, to be a mere prudential council. However, a critical examination will also show that Hume’s “law” is in fact a trap for the unwary.120 Hume does not say that moral values do not exist or cannot be cognized.121 Rather, Hume’s critique is a much more subtle122 challenge to all who wish to present noncognitivism and the ‘is-ought’ passage its early charter. By contrast, it is said by Alasdair MacIntyre that really Hume did not mean to deny deducibility. When he said that it ‘seemed inconceivable’, he meant that it only seemed so without really being so.” Falk, “Hume on Is and Ought”, supra note 52, at 551. 117 “Hume’s point . . . is not to deny that merit is cognitively derived from fact but to make sure that this derivation is not mistaken for deduction.” Id. at 562. 118 “Hume . . . in the celebrated passage does not mention entailment. What he does is to ask how and if moral rules may be inferred from factual statements, and in the rest of Book III of the Treatise he provides an answer to his own question.” MacIntyre, “Hume on ‘Is’ and ‘Ought’ ”, supra note 108, at 493. 119 “[I]n all reasonings from experience, there is a step taken by the mind, which is not supported by any argument or process of understanding.” Hume, The Philosophical Works, supra note 111, at 36. 120 “[O]ur willingness to accept the normative conception of ethics is so deeply embedded that, when someone such as Hume challenges it, we take the challenge as a classic defense. (I-O) is not the foundation of normative ethics but its death warrant. Perhaps the shock value of this revelation will lead us to reconsider what might be the most important issue in twentieth-century philosophy.” “Hume on Is and Ought” 508 (W.D. Hudson ed., MacMillan 1969). 121 “The famous passage in Hume’s Treatise concerning ‘is’ and ‘ought’ . . . has recently come in for some re-interpretation. Contemporary philosophers were accustomed to interpret Hume as condemning any attempt to deduce ought from is. However, A. C. MacIntyre and Geoffrey Hunter, amongst others, have assured us that he was doing no such thing. So far from condemning this move, he was in fact intent upon making it himself. In the famous passage he was simply complaining ‘that earlier writers have failed to explain how this deduction is possible’ (Hunter’s interpretation), or rejecting the way in, which religious moralists make the move, that is, ‘repudiating a religious foundation for morality and putting in its place a foundation in human needs, interest, desires, and happiness’ (MacIntyre’s interpretation). MacIntyre thinks that Hume’s attempt to make the move ‘shows us how it can be made’ (p. 258); Hunter, on the other hand, says that Hume was ‘mistaken’ (p. 151). But, in the view that he was attempting to make it, they are at one. I do not think that they have proved their point.” W.D. Hudson, “Hume on Is and Ought”, in Hume: A Collection of Critical Essays (V.C. Chappell ed., Univ. of Notre Dame Press 1968). 122 “Hume’s attitude to induction is much more complex than appears in his more skeptical moments and is therefore liable to misinterpretation – his remarks

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moral choices as objective values to explicitly do so. In other words, Hume merely and properly places the burden of proof upon the movant to show that moral values exist objectively as fact. As he presupposes a fundamental difference between “is” and “ought,” this burden of proof cannot in fact be met, at least not within Hume’s dualistic123 universe. The only way out of Hume’s trap is to recognize it as dualism124 and reject the presumption of dualism. It seems to me that Hume has not proven the existence of “is” versus “ought,” but rather presumes it. Therefore, just as Hume can rightly insist that the practical syllogism be founded on explicitly declared presumptions, we can also insist that Hume prove his dualist position. From a monist perspective, moral statements are simply statements of facts – another “is” statement. For example, just as it is a fact that the sun rises, it is also a fact that certain persons believe that others ought not to kill. Dualism runs throughout Western thought and is at the root of alienation, division, separation, and suffering. Plato’s “mind” (eidos) “matter” (hulé) distinction may be the first recorded example of dualism in Western thought. It is not the last. Plato essentially presumes the existence of the eidos as a postulate and never proves it, much as Hume similarly assumes a dualism, which he does not prove.125 In fact, Plato’s dualism cannot be proven, as material objects would not be the measure of proof of mental forms. Thus, Platonic formalism does not admit to proof by materialist on ‘is’ and ‘ought’ are not only liable to receive but have actually received a wrong interpretation.” MacIntyre “Hume on ‘Is’ and ‘Ought,’ ” supra, n. 108 at 488. 123 “Hume observes, that the good divides from the true. The standard for the latter is ‘eternal and inflexible’ in being founded on ‘the nature of things’; while that for the former is variable, in depending on ‘the internal frame and constitution of animals’.” Falk, “Hume on Is and Ought”. 124 “In short, Hume is rejecting any normative conception of morals.” Capaldi, Hume’s Rejection of Ought as a Moral Category. Is that statement circular? If normativity and morality are synonyms, then it is. Hume has been accused by recent scholars of equivocation. A view upholding a univocal reading of such terms, then attributes to Hume the position that we reason to and infer such beliefs, that such transitions are ones of reasoning, but that reason doesn’t produce the beliefs. And it must hold that, despite the fact that Hume concludes that animals have reason from the fact that they make some of the same inferences that we do, he believes that in the human realm such examples of reasoning are not produced by reason. It must claim that whatever faculty is, which Hume thinks reasons and infers, it is not reason.” Winters, Hume on Reason, supra note 104, at 233. 125 “All reasonings may be divided into two kinds, namely demonstrative reasoning, or that concerning relations of ideas, and moral reasoning, or that concerning matter of fact and existence.” Hume, The Philosophical Works, supra note 114, at 31.

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standards of science. Christianity makes a similar god/man duality. We also see dualism in Descartes, who separates mind and body, human and animal. Aristotle would, however, disagree with Descartes’ man/animal duality. For Aristotle, man is an animal – a rational talking animal. Cartesian dualism, however, is very convenient for scientific experimentation (vivisection), factory farming, and other abuse: if an animal has no soul and is, as Descartes argues, a mere automaton, then it cannot suffer. Those are the types of errors that dualism generates: distinctions between “self” and “other,” which allow dehumanization and destruction of the other in a sort of Weberian nightmare of bureaucratic specialization wherein each individual – from the worker in the munitions plant, to the pilot, to the bombardier – can ignore and deny that they are killing and maiming other humans. If dualism and (neo-)Platonic idealism are fatally flawed, what about monism and materialism? For the consistent empiricist, ideas do not exist apart from the people who think them. So to say moral values exist or do not exist is senseless. What can be said is that the vast majority of persons in all times and places hold certain fundamental values. It can also be said that ideas have certain objective consequences. In both senses ideas (and moral values are one type of idea) do exist, but they have no existence independent from the people who hold them. Ideas are reflections of objects. After all, our bodies are made of matter and our ideas, which are not congruent to material reality are soon corrected, whether we like it or not, by materiality. For the monist-materialist, “is” and “ought” are not distinct and irreconcilable. Rather, “is” swallows “ought” whole: “ought” statements are in fact just another form of “is” statements.126 How these critiques of postmodern epistemological and moral theory influence law is the topic of the next section.

D. Legal Method In parts I through III, the ontological, epistemological, and axiological bases of a theory for fundamental critique of American legal-political dis126 “Hume’s rejection of ‘ought’ as a special moral category is far more revolutionary than his rejection of the traditional concept of causal necessity . . . One can no longer chant the refrain that “ought is not deducible from is” because this presupposes the very thing that is to be proved, and it is the very thing that Hume rejects, namely the existence of peculiarly normative entities. In place of a normative conception, Hume holds the view that ethics is an empirical science.” See Nicholas Capaldi, Hume’s Rejection of ‘Ought’ as a Moral Category, 63 J. Phil. 126, 135–36 (1966). If that interpretation is correct, however, then Hume’s ethics are flawed by epistemological dualism.

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course were set out. A monist materialist ontology sets an irrefutable base for the possibility of objective truth as measured by correspondence between descriptions of reality and observations of reality. Monism and Platonic and neo-Platonic noetic formalism are contradictory. Materialism also leads to a rejection of Platonic forms. Additionally, materialism implies a rejection of nihilism. Epistemological relativism is rejected out of hand as illogical. Truth is possible and is measured as a correspondence between objective reality in the material world and descriptions of that reality in human language. Human language too escapes irrelevancy because of its connection to empirical reality. Thus, an objective morality is theoretically possible. Morality took on an objective sense when it, consequent to the materialist method proposed, is grounded not in erroneous formal noetic views, but rather as a dispassionate materialist calculus of what improves the life expectancy and caloric intake of humans. With an objective measure of morality we can make moral arguments that circumvent economism, as they look at something more fundamental than money: inalienable human dignity. Thus, the method proposed leads us out of the cold world of cash and into the world of humanitarianism. Human dignity is not fungible. Basic human rights are inalienable. Thus, they cannot be comprehended in economic terms. How does this understanding of ontology (materialist and monist), epistemology (not nihilism or relativism but scepticism), and axiology (cognitivism not relativism) influence legal methods of argumentation? Summarily, the realists’ rejection of formal logic was as much an error as their rejection of morality as a category. By rehabilitating philosophical (Aristotelian and scholastic) logic on a materialist basis, in place of its usual noetic formalist basis, it is possible to apply objective morality to the law. Thus, the author proposes a unique and, in fact, new form of natural law reasoning. A written law may conflict with customary moral law. However, unlike traditional views of natural law, the existence and resolution of conflict points between written law and unwritten law is determined by a materialist analysis – a contextualized examination of objective reality – and not by an idealistic deduction from amorphous ill defined pure concepts. This argument is vectored through the failed conceptual challenges posed by legal realism as the logical conclusion of Parts I through III. By reviewing legal realism’s failure, the necessity of a new way of thinking about the law becomes clear. Both formalism and realism were partial and imperfect solutions to the problem of legal interpretation. The theory of materialist natural law proposed by the author is the dialectical synthesis resulting from the opposition of formalism versus realism, a relative opposition occurring within the super-structural justifications of a given mode of production namely, late capitalism (which is also called fast capitalism or to put it bluntly – casino capitalism).

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Epistemological and axiological choices shape method. Legal realism was more or less the direct outcome of these various epistemological and axiological currents. Legal realism dominated United States legal thought from the 1930s to the 1980s, at, which point it began to be first challenged.127 It has now been overtaken by economic theories of the law.128 However, so great was the influence of the realists – in fact they set the stage for law and economics129 – that their methodology continues to heavily mark the law.

I. Legal Realism v. Formalism Epistemologically, legal realism130 opposed psychology,131 voluntarism, and hints of class conflict against classical logic. The realists quite successfully introduced a new terminology, substituting negative words to describe institutions they wished to replace and positive words to describe proposed replacements. Thus, classical logic was relabelled formalism.132 Binary reasoning was relabelled, at best, “bright line” analysis,133 at worst, “talismanic”134 and, in all events, as “rigid”135 and “inflexible. In contrast, the realists 127 John Hart Ely, Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different from Legislatures, 77 Va. L. Rev. 833, 849 n. 39 (1991). 128 Sharon K. Hom, Equality, Social and Economic Justice, and Challenges for Public Interest Lawyering, 8 N.Y. City L. Rev. 511, 516 (2005); Jess M. Krannich, The Corporate “Person”: A New Analytical Approach to a Flawed Method of Constitutional Interpretation, 37 Loy. U. Chi. L.J. 61, 88 (2005). 129 “Thus, critical race realism encompasses not only the goals and methodologies of the broader critical race and feminist projects, but also some of the shared goals and methodologies of legal realism and law and market economy theory (which I have integrated into my critical race work elsewhere).” Emily M.S. Houh, Critical Race Realism: Re-Claiming the Antidiscrimination Principle Through the Doctrine of Good Faith in Contract Law, 66 U. Pitt. L. Rev. 455, 457 (2005). 130 See e. g., Karl Llewellyn, Some Realism About Realism – Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931). 131 See e.g., Jerome Frank, Law and the Modern Mind 119–20 (Brentano’s 1970) (1930). 132 Oliver Wendell Holmes Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897). Holme’s article is oft cited and illustrates exactly the problem of modernity – the separation of law and morality consequent to relativism. 133 For example, “Some commentators discussing constitutional restrictions have suggested reasons for successive prosecution in addition to those discussed above. Professor Amar, for example, advocates ‘flexible, fact- and case- specific rules of due process, rather than global, rigid, bright-line rules of double jeopardy’.” Anne Bowen Poulin, Double Jeopardy Protection from Successive Prosecution: A Proposed, Approach, 92 Geo. L.J. 1183, 1284 (2004). 134 For example, “In the final analysis, the marriage movement will not relinquish the talisman of marriage as fixed and natural instead of ‘ultimately dependent upon

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were “flexibly”136 “balancing”137 competing “interests.”138 “Rules” were replaced with “standards”139 and “laws” were replaced with “norms.”140 Methodologically, the legal realists advocated flexible multi-factor balancing tests,141 which could and did consider interests not only of the plaintiff and defendant, but also of society and third parties as well.142 They opposed the (supposedly) rigid, deterministic, formally valid, but substantively empty logic of classical legal scholarship. Formalism, “rigid,” “inflexible,” and (supposedly) teleologically blind, could not defend itself in its own terms against the “flexible,” “visionary,” “balanced” realists because realism, unlike classical logic, pretended to understand and deploy psychology and to ignore the form of reasoning and look to the mechanics of the practical workings of power. Thus, realism could claim to perceive issues that formalism (in the interest of objectivity) ignored, and thus be a more accurate and persuasive worldview. social and economic structures’.” Richard F. Storrow, Rescuing Children from the Marriage Movement: The Case Against Marital Status Discrimination in Adoption and Assisted Reproduction, 39 U.C. Davis L. Rev. 305, 366 (2006). 135 “I have referred to mechanical jurisprudence as scientific because those who administer it believe it such. However, in truth it is not science at all. We no longer hold anything scientific merely because it exhibits a rigid scheme of deductions from a priori conceptions. In the philosophy of to-day, theories are instruments, not answers to enigmas, in, which we can rest.” T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 957 (1987). In fact instrumentalism is the essence of opportunists anywhere. If anyone was unscientific it was the realists and their progeny the post-modernists, not the formalists. The old values were the wrong values. That does not mean there are no values. 136 “Nor did balancing commit the Court to an overall theory of a constitutional provision. The old conceptualization could be discarded and a balancing approach could temporarily fill the theoretical void while the Court groped towards a conception more attuned to the times. Of course, there was the risk that balancing’s flexibility would be viewed as unprincipled adjudication.” Aleinikoff, supra note 135, at 961. 137 See, e. g., Paul W. Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell, 97 Yale L.J. 1 (1987). 138 Frank N. Coffin, Judicial Balancing: The Protean Scales of Justice, 63 N.Y.U. L. Rev. 16, 40 (1988). 139 Gregory E. Maggs, Karl Llewellyn’s Fading Imprint on the Jurisprudence of the Uniform Commercial Code, 71 U. Colo. L. Rev. 541, 543 (2000). 140 Sidney W. DeLong, Placid, Clear-Seeming Words: Some Realism About the New Formalism (with Particular Reference to Promissory Estoppel), 38 San Diego L. Rev. 13, 50 (2001). 141 Anthony V. Alfieri, Impoverished Practices, 81 Geo. L.J. 2567, 2624 (1993). 142 “Methodologically, legal realism is a pluralistic view that marshals a multidisciplinary analysis of the constitutionality of speech incorporating historical, linguistic, social and political insights.” Alexander Tsesis, The Boundaries of Free Speech, 8 Harv. Latino L. Rev. 141, 152 (2005).

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The realists argued that rigid formal logic generally led to substantive injustice.143 In its place they argued for flexible “guidelines” which, however, risk indeterminacy.144 But flexibility, while it permits the court to decide cases on their individual merits, can also be criticized as capricious,145 unprincipled, and prone to abuse. The legal methods of the realists, though “flexible” or “supple,” are also indeterminate. The legal realists reject binary “bright line” categorical analysis in favour of multivariate balancing tests.146 That rejection is not generally well-founded. Though the realists’ epistemology leads to an erroneous general methodological rejection of categorical analyses, the alternative methodology they propose is not necessarily more objective. Indeed, how could it be given the subjectivism of the realists’ epistemological and axiological assumptions? Both balancing tests and bright-line categorical analyses are not necessarily well founded, but they can be if their terms are certain. Terms are certain if they are empirically verifiable. However, empirical verifiability, in a world of subjective moral values, leaves but one standard – cash money. Thus, any attempt to use legal realism to impel necessary fundamental reform to an ossified constitutional structure is doomed from its inception. For realism ultimately compels us – perhaps surprisingly – to the marketplace. Contemporary legal epistemology follows the realists’ lead and tends (incorrectly) to reject “bright line” categorical tests and other methods derived from formal logic on the following grounds: While categorical analyses are unambiguous they are at best teleologically blind and at worst teleologically vicious: (a) When teleologically vicious, formal manipulations are nothing more or less than the mask of class dominance. (b) When teleologically blind, formal manipulations ignore whether substantive outcomes are in fact just and elevate the procedural form over the substantive result. The realists’ conclusion – laws of formal logic, such as tertium non-datur, the law of identity “A or not A,” and categorical “bright line” analysis – 143 For a brief overview of realism and an attempt to both criticize and ameliorate realist discourse, see Anthony D’Amato, The Limits of Legal Realism, 87 Yale L. J. 468 (1978). 144 Karl Llewellyn, Some Realism About Realism – Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931). 145 Lynne Marie Kohm, A Reply to “Principles and Prejudice”: Marriage and the Realization that Principles Win over Political Will, 22 J. Contemp. L. 293, 325 (1996). 146 For a discussion of balancing tests in legal theory and pedagogy, see James Boyle, The Anatomy of a Torts Class, 34 Am. U. L. Rev. l003 (l985).

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must be rejected in the name of substantive justice. In their place, “flexible” (or “manipulable”) “balancing tests” should be adopted.147 The rejection of formal logic is, however, ill founded. While some realists pretend to be post-modernists, applying value neutral language, they do in fact make moral choices: however, their moral values are not those of feudalism or even liberalism. Critical scholars reject patriarchy and capitalism, which is a normative (i. e., moral) choice.148 This explains why radical critique should not be quick to reject morality or normativity, as radical discourse is also normative and must be if it wishes to effectuate change. Categorical analysis, a formalist method, requires an exact methodology (i. e., terminological and empirical certitude and strict application of formal logic). We can recall, however, the linguistic critiques of Saussure and Quine, which explain why categorical logic was rejected by the realists. Since the realist revolution of the 1930s, categorical formal methods are criticized and generally rejected as “rigid,” “inflexible,” and “formalism.” However, early realists’ rejection of formal logic, which they characterize as rationalization, is simplistic: the realists ignore that formal logic and empiricism are perfectly compatible as methodological tools in the search for truth. If balancing tests, favoured by the teleological interpretation realism prescribes, can be evaluated and determined according to objective empirical evidence, then so too can “bright line” categorical analyses. There is no empirical difference between determining the “weight” to be assigned to a “factor” in a multi-variant balancing test and determining whether a “bright-line” “threshold” has been crossed. The realist argument that flexible “balancing tests” are better than “formalist” “bright-line tests” is, thus, empty. This chapter has just shown why the realist critique is overly-simplistic; that critique also goes too far. The realists argue that formal logic is at least abused, if not misused. Logic can, of course, be abused. However, the realists ignore that formal logic is only contingently, and not necessarily, manipulable.149 The manipulability of formal logic is contingent upon a combination of terminological inexactitude – which can exist – and intellectual dishonesty: it is not inevitable. If all formal logic were merely a manipulation designed to mask the raw exercise of power, then logical argument 147 See Eric Allen Engle, When is Fair Use Fair?: A Comparison of EU and U.S. Intellectual Property Law, 15 Transnat’l Law. 187 (2002). 148 How can we distinguish norm and morés? The norm is that, which is customary, habitual and thus seen as normal. These terms seem synonymous. 149 This argument requires that one understand that contingent truth is only potentially true depending upon circumstances whereas necessary truths are true in all times and places.

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would be pointless.150 Again, that would force us into fascism’s volonté de puissance.151 For the strong that is not a problem, but, supposedly, radical critique claims to want to advance the interests of the poor, the downtrodden, and the suffering. Consequently, radical critique will never be arguing from a powerful position where it can simply force its objectives on the agenda. Rather, all altruistic efforts at bettering the lot of those less fortunate must ultimately argue persuasively from compassion because the dispossessed lack the instruments of state power. Not only does regarding formal logic as mere manipulation – the mask of power – lead us to voluntarism and the fascist reductio, it also is selfcontradictory and leads to a conclusion, which, like the paradox of the unknowing knower, voids most nihilist discourse. Logical contradictions thus undermine most relativist theses, whether such discourse is presented as legal realism or post-modernism. Members of both schools of thought assert that there is no truth or that all truth is relative. That position leads to an antinomy. It is illogical to use logic to argue that one cannot use logic. If there were no truth, or if all truth were relative (to what?), then statements such as “there is no truth” or “all truth is relative” would be logically empty of meaning. However, if such statements are logically empty, they cannot be the foundation of an argument for the result is infinite regress. The antinomic conclusion is the inevitable conclusion, which most postmodern and realist epistemology leads to and must lead to if one takes their assertions of truth nihilism or relativism seriously, and not as a mere sensationalist foil for a healthy truth scepticism, which they generally are. Although post-modernism taken to its logical conclusion does in fact lead to an impermissible antinomy, a qualified realism is admissible. The statement “the abuse of formal logic leads to some injustice” is perfectly admissible (i. e., that statement is formally valid and is in fact empirically true and possibly even necessarily true). This qualified realism is admissible and does not overstate the realist critique.152 Truth sceptics and realists have some points – logic can be, and sometimes is, manipulated. However, truth sceptics and realists should be careful not to take their points too far lest nihilism annihilate their own discourse. That annihilation – the negation of the negation,153 so to speak – necessarily occurs whenever realists or post-modernists assert a truth statement purporting to negate the existence 150 A post-modernist paradox: If no truth exists, how can the truth that there be no truth exist? This alone should demonstrate the flaw of epistemological nihilism and/or moral relativism. 151 See text accompanying note 66, supra. 152 Though the statement “The abuse of formal logic can lead to injustice” is probably empirically true, it is not empirically true that “All formal logic is manipulable indeterminate” and its application, therefore, leads to injustice.

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of truth statements. This annihilation happens, for example, when they attempt to simultaneously assert that “all moral values are relative” and “no truth exists.” Those two statements are, in fact, logically incompatible. They cannot be asserted simultaneously in logical discourse. They are antinomic, the former, heterologically and, the latter, autologically. This leads to the conclusion that the realists overestimated the difficulties of linguistic indeterminacy and formalism’s elevation of form over substance. Thus, substituting interest balancing tests for “bright line” categorical tests may not have been necessary. Furthermore, interest balancing tests are generally ambiguous: What factors are chosen? What weight are the factors given? How is that weight measured? Thus, realism is an imperfect solution to an ill-defined problem: interest balancing is just as manipulable as “bright line” categorical hermeneutics.

II. Realism Set the Stage for Law and Economics Legal realism has given judges the necessary tools to allow the deployment of their subjective will – in the search for substantive justice – without, however, any moral telos (final design) to guide that will. Despite flaws in the relativists’ positions, their arguments have been so successful that contemporary values generally are only considered in market terms. Moral values are generally ignored as being subjective and/or indemonstrable and/or unscientific in contemporary legal discourse. As a result, economic analysis is ascendant. This is because economic analysis can claim to be objective, and thus scientific. Economic arguments appear to be objective because they appear to be empirically quantifiable, therefore verifiable, and thus objective. Of course a searching critical regard shows that economic analysis carries its own biases and that some objects do not admit of economic analysis – markets with very few or even no actors for an easy example. Externalities154 and the question of fungibility also explain why scepticism towards the universality of market values is justified. Economic agents are not always rational profit maximizers.155 Goods are not always fungible or alienable, nor should they always be. 153 Friedrich Engels, Anti-Dühring (1877), available at: http://www.marxists.org/ archive/marx/works/1877/anti-duhring/ch11.htm. 154 Efficient markets “require that participants have perfect information, incur no transaction costs, and that there are no externalities not reflected in the market information.” Patrick J. Ryan, Rule 14a-8, Institutional Shareholder Proposals, and Corporate Democracy, 23 Ga. L. Rev. 97, 169 n. 295 (1988). 155 “[F]ew (if any) sellers are always rational profit-maximizers.” Tasty Baking Co. v. Ralston Purina, Inc., 653 F. Supp. 1250, 1275 (E.D. Pa. 1987); see also USX Corp. v. U.S., 12 C.I.T. 205, 210 (Ct. Int’l Trade 1988).

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The teleological critique of formalism presented by realism depends upon an objectivist axiology, which realism helped to destroy.156 Realism’s inability to elaborate a viable axiology is one more reason why the realist critique of legal methodology, which is ultimately a critique of formalism’s supposedly absent teleology, failed. If all moral values are merely subjective, then only economic values are scientifically objective (i. e., quantifiable and verifiable). Thus, the judicial willpower realism unleashed is now exercised to serve the interests of the wealthy because only economic values can claim to be objective in a world that holds moral values are intersubjective. Moral values have been eclipsed by economic values because contemporary epistemology is generally sceptical toward the existence of truth and rejects the existence, or at least the cognizability, of objective moral values. If “no truth exists” or “all values are relative” – statements, which were shown to be illogical but, which are nonetheless in vogue because they are shocking (thus getting media attention) and their less extreme versions are well founded – then economic empiricism is the only remaining scientific argument. Taking the gambit of moral relativism in an attempt to change failed values is a dead end. It prevents elucidating any new values to replace the failed old ones. This vacuum is then filled by “objective” economic values, which merely ensure the continuation and even exacerbation of income inequality, patriarchy, and social injustice.

III. Critique of Realist Legal Method Rather than arguing within the presumption that economic value is the only value, or the only objective value, methodological critiques of economic analyses are more effective when they question the epistemology upon, which balancing tests are founded. An epistemological critique of the realists and post-modernists is possible because truth negationist epistemology is incorrect. True statements do in fact exist. It is true that not all arguments are verifiable and that not all arguments are falsifiable. It is also true, however, that some arguments may be verified, or at least falsified, and that not all arguments, which are falsifiable necessarily imply a verifiable contrary position. Thus, the critiques of formalism may not be as strong as commonly believed. Further, we can use formal logic to question the validity of balancing tests. Are balancing tests objective or are they predictable? If they are not, are they manipulable? What does that imply for the rule of law? 156 These facts help to explain some of the paralysis and cacophony in contemporary legal theory, especially in contemporary American legal theory.

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Limiting the inquiry here to the mechanics of legal balancing tests, the first question is whether the balancing tests proposed by realists are, or can be, on solid empirical foundations. When balancing tests are applied by relativists, they lose their material foundation. Even with a proper material foundation, however, balancing tests are still questionable. Are balancing tests truly objective? Do they lead to foreseeable, predictable outcomes? The manipulability even of empirically justified balancing tests arises in the answers to two questions: (1) Which factors are chosen to be balanced? (Note that a pure economic analysis will exclude certain factors and privilege others) and (2) What weight are the chosen factors given?157 The strength of economic analysis is its ability to provide an objective standard to weigh various factors in balancing tests – if we assume that markets exist and clear, goods are fungible, and there are no significant externalities, large assumptions. Sometimes some or all of those assumptions are true. However, more often than not, one or more of those criteria will be lacking in any market analysis. The answers to the questions “which factors” and “what weight” are ultimately determined not by democratic process (which at least would support intersubjectivism), but rather by judicial decision. One of the principled reasons for judicial reluctance to intervene in political issues prior to 1937 was that judicial decisions are un-democratic. Court judgments were seen as legitimate prior to the realists because they were the product of logic. However, if logic and judicial decision-making are unconnected or unconnectable, then judicial decision-making is an undemocratic exercise of raw power. If judicial willpower (as opposed to objective reasoning) determines “which factors” and “what weight,” then we are brought out of the pseudoobjective world of intersubjectivism into exactly the legal world the realists predicted and criticized – one in, which reason is rationalization. Realism thus scores at least two own-goals: first, it opens the door to law and economics, and, second, it is a self-fulfilling prophecy and reduces legal decision to mere rationalization. However, while legal realism’s prophecies appear self fulfilling, they are not. A monist materialism approach would lead to objectively verifiable and foreseeable outcomes. Another methodological critique of realism and its progeny looks within realism to compare (1) “vague,” “manipulable,” and “teleologically blind” outcomes generated by supposedly flawed formalism and categorical analysis, which (supposedly) ignore substantive justice against (2) the outcomes generated by balancing tests. In fact, we can see that balancing tests are no less vague and, in fact, more manipulable than so-called “bright line tests” 157 Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L.J. 1225, 1254 (1999).

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and “talismans.” Balancing tests imply multiple poles of interest and more terms of analysis, thus providing greater room for the exercise of de facto legislative power – by judges. Realism represents no progress toward objectivity. Despite these facts: (1) The realists’ epistemology can be defended, though only in a qualified manner. Although truth negationism is inadmissible truth scepticism is permissible. (2) The realists’ preferred methodology – balancing tests – can be just as objective as categorical bright-line analyses if, and only if, factors are specified and objectively weighed. (3) The realists’ methodology is no more capricious than categorical analyses because it is empirically grounded upon data, which are often, though not necessarily, quantifiable and verifiable. This explains why so much super-structural foment has had so little actual affect on relations of production within the United States. In the 1930s, America faced an economic crisis that with the exception of hyperinflation was just as serious as that facing Germany at that time. The democratic response to the economic crisis was less effective than the fascist response. The war fought and won, trends already begun in 1917 – the feminization of the workplace and the civil rights movement – intensified. Yet, these massive social movements had only little influence on the law. Likewise, the counterculture protests of the 1960s also were a radical change in sexual and race relations – with few formal legal impacts, especially when viewed in the long term. “Black is beautiful,” “affirmative action,” and “women’s liberation” have all been contained and defanged as bases for radical critique of the American empire. That fact is bad for Americans because then the only critique possible is the critique of the gun carried out by the Intifada, by Hamas, the insurgents, and those labelled terrorists. Is a boy throwing stones at a tank in his neighbourhood a terrorist? What about the jet jock 10,000 feet up raining death down on him and his relatives? Today we see the same types of radical protest gathering that rocked the world in the 1960s. If they are to have any impact on the legal system, then they require a correct theoretical base for arguments against the system that profits from oil wars. Under the right circumstances these subsurface waves of conflict break out into tempests in the “real world” of praxis. The war in Iraq and the abject failure of the U.S. federal government to do anything but squander resources may provide those circumstances. Conditions are aligning, which are going to force people into asking radical questions. Why is the United States fighting wars for oil? Why does it not consider alternatives, such as

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ethanol, bicycles, and trains? The real question of 9/11 is not who knocked down the towers, but rather why the towers were knocked down. The real question in Southwest Asia is not how to win an unwinnable war. The real question is why is the United States is fighting a war in a country that not only did not regard Bin Laden as an ally, but also saw him as an enemy and did not fund him? An even tougher question that deserves to be asked is why the C.I.A. funded Bin Laden in the first place? These facts show that the United States military industrial complex must be reined in. To do that requires fundamental reordering of American intellectual discourse around the idea of natural law. This chapter has attempted to show just how that can be done.

E. Conclusion: Beyond Legal Realism This chapter explains some of the foundations of contemporary legal method and shows how post-modernism tends to take these theories too far. It also shows that contemporary understandings of Hume go too far in attributing positions to him that he did not enunciate. Hume never refutes the existence or possible existence of morality, either as a concept or an object of cognition. Rather, Hume “merely” seeks to place the burden on whoever seeks to express moral choice to show the connection between normative and positive statements. However, that is a trap because the transition cannot be proven in Hume’s dualistic universe. Hume’s trap, while devastatingly subtle, is founded on a false dualistic postulate, which he presents as self evident, that there be a fundamental difference between statements of fact and statements about fact (i. e., between “is” and “ought”). Hume is one more example of dualism creating false dichotomies, “man/woman,” “master/slave,” “man/animal,” “self/other,” etc. Hume’s dualist ontology and epistemology158 (“is”/“ought”) parallels Descartes’ ontological dualism (god:man::man:animal) and Plato’s epistemological dualism (form>matter). The bitter irony is that the very people who claim to recognize and wish to end the problem of suffering arising out of dualism are doing exactly what they should not. Post-modernism and legal realism, instead of concentrating on the dualism, which is the source of the problem of alienation and oppression, contents itself with ineffective and self-defeating gambits that backfire by unknowingly replacing moral values with economical ones. 158 “According to Hume, all mental activities are perceptions. Perceptions are of two kinds, impressions and ideas . . . Reason is of two kinds: comparing ideas (relations of ideas) and inferring matters of fact . . .” Nicholas Capaldi, “Hume’s Rejection of Ought as a Moral Category,” J. Phil. 63, 126 (1966). It is exactly this dualism, which the author regards as the source of conflict in Western theory and praxis.

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The cognition of moral values as statements of social fact (i. e., that X persons in Y region believe in the truth of statement Z) is a better explanation of how statements such as “there is insufficient food in Ireland” and “thus we must donate food” can escape from enthymeme and become well formed practical syllogisms. Hume does not overtly reject Aristotle’s practical reasoning (phronesis) and the practical syllogism that embodies it. Instead, Hume sets a trap for the unwary: he places the burden of proof that a normative or practical syllogism is well formed squarely on the shoulders of he who present it – where it belongs – and leaves open the relativist possibility as a gambit. Post-modernism took that gambit and falls into his trap. This explains why the heir to legal realism, Critical Legal Studies, is going nowhere.159 The implication of these theoretical positions for legal methodology is that legal methods predicated upon overly-broad interpretations of Nietzsche and Hume such as legal realism and post-modernism must be reconsidered. The post-war rise of legal balancing and the pejorative characterization of objective logic as “formalism” are errors in legal methodology, which rob law of objectivity and open it to accusations of perpetrating systemic injustice. Such accusations are often well-founded. However, to identify a problem correctly does not necessarily mean that one has also identified the correct solution. Such was the case of the legal realists and the post-modernists. Without the correct tools to combat injustice, no progress would be possible. To develop correct legal methods we must first understand and reject dualism and philosophical idealism (Platonic formalism and its eidos). Platonism is the usual root of natural law thinking, but not a necessary one. We must develop an objective axiology based on a monist-materialist foundation. With correct epistemology and axiology we can then examine legal methodology as it manifests in cases and constellations of cases to determine the best methods to attain both transactional (arithmetic) and social (geometric) justice. Undoubtedly, new legal methods will arise and old ones are reformed or rejected. Thereby, theory will be put into practice in the interests of justice. That is a much greater task than could be outlined in this chapter, but this chapter is a first step to attaining that goal.

159 Critical Legal Studies (“CLS”) failed due to a lack of radical commitment. CLS theory was closet Marxism and so went nowhere because it did not commit to Marx and was decimated by the same relativism that undercut realism. See, e. g., E. Dana Neacsu, CLS Stands for Critical Legal Studies, if Anyone Remembers, 8 J.L. & Pol’y 415 (2000).

Chapter 8

Law and Economics (1980–?) A. Introduction In the previous chapter, we saw how the U.S. left, by opting for moral relativism trapped itself into market economic arguments which it was destined to consistently lose. In this chapter, we examine the economic theories of law, which so completely displaced the radical left theories of law in the U.S. Economic theories of law are relevant in the very least to budgetary and tax policies. Though law is not -and should not be- a mirror of the market, there are places where economic methods of analysis can be useful for judges, for example when balancing competing interests, when determining objective monetary values. A comprehensive theory of law and justice cannot ignore economic theories of law, particularly because economic theories of law currently dominate American legal theory, with a corresponding global influence, and this since at least 1980. There are several competing schools of thought within law and economics. This chapter will outline their differences and try to draw out the differing implications they have for legal interpretation. I will especially try to point out the weakness of the various theories in order to make clear their limits. Though there are real methodological and prescriptive differences within the various schools of law and economics, they share a similar outlook and method: liberal individualism and distrust or outright hostility toward the state. They also share a model of homo economicus (the rational profit maximiser) and/or of efficient markets and/or a model of perfect information (cost-free, instantaneous, global information flow, facts known or at least knowable to all), though the more specific these propositions become the greater the divergences within the various schools of law and economics become evident. The differences among the schools will be exposed both to show the development of this complex of thought and to show the possibilities and limits of economic analyses of law.

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The position I take is that some methods of economic analysis, such as cost-benefit analysis and economic evaluation of balancing tests, can be usefully applied to law.1 Economic valuation of competing interests to be balanced renders tractable otherwise indeterminate legal decisional methods such as “interest balancing” by making the weighing of competing interests at least explicit, if not objective However, while there clearly is a place for economic models of valuation, there are also definite and serious flaws in the strongest assertions of the law and economics school of thought. Purely economic analysis of law does not in fact adequately describe or predict legal decision making because economic analysis of law is founded on invalid presumptions about the nature of the market. Because of the limits of economic analysis of law arising out of unrealistic presumptions about the nature of markets and market participants, economic theories of law have only met mixed reception outside the U.S. and other common law countries, and rightly so. Economic methods of analysis can have a valid application to legal decision making as a special theory confined to particular cases. The flawed presumptions of law and economics are so obviously wrong that one wonders how anyone who seriously examines them could accept them as a realistic model of what happens in the real world. Economic theories of law are not valid descriptors for a general theory of legal decision making. Thus, in the end, law and economics, like most efforts at a general systems theory of the last century (e. g., Einstein: general theory of relativity; Keynes: general theory of employment, interest and money; Kelsen, General theory of law and the State), collapse from a grandiose failed effort at a unified theory with universal validity back into a special theory with valid application only in specific instances and not generally. The economic theories of law split from each other to varying extents because of splits between classical and neo-classical economic theories. These are outlined below. Essentially, I hope by explaining those theories and their flaws in detail to help the reader understand both what are sound budgetary, tax and monetary policies (telos for legal interpretation and application) and also to understand the practical possibilities and limits of methods of economic analysis in law generally. Economic analyses of law can be useful but are no panacea to the problems of interpreting and applying laws. 1 E. g., Judge learned Hand’s Test finds a duty in tort where the cost to prevent an injury would be less than or equal to to cost to cure the injury Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 5.

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B. The Origin of Contemporary L&E in Classical Economists Contemporary theories of law and economics are based on Smith and Ricardo, who are exposed below.

I. Adam Smith Adam Smith illustrates how an aggregation (induction) of multiple individual data points can result in the attainment of a complete aggregate that is greater than the sum of its parts. Smith only implicitly treats methodological issues concerning holism and atomism in The Wealth of Nations. In general, his thinking appears to be atomistic: society is broken down into individual elements (i. e. individuals) who buy the goods needed to attain their individual well-being as they see fit. Their motivation is purely selfish. However, the sum total of their individual self centred decisions results, according to Smith, in the best possible social situation. For Smith, the aggregation of individual self interest results in the attainment of the best collective interest. In his example of the daily market – where the brewer and the baker attain their own well-being by offering those goods necessary to meet the needs their customers2 – we see a perfect example of atomism. From this point of view, the collective does not exist, only its components yet out of that individual interest a best possible collective interest results. Smith also presents an example of the famous pin factory.3 Here, he shows that cooperation and specialization of workers allow 10 people to collectively produce 48000 pins a day – even though in isolation these same people could not produce 20 each.4 Smith induced collectivist conclusions from an apparently atomistic position: specialization of individuals in the collective is more productive than individual artisanal production. Smith discovered that specialization increases productivity. That discovery is problematic for atomism and demonstrates why holism is the more accurate theory.

2 WN: B.I, Ch. 2, Of the Principle which gives Occasion to the Division of Labour in paragraph I.2.2. 3 WN: B.I, Ch. 1, Of the Division of Labor in paragraph I.1.3. 4 WN: B.I, Ch. 1, Of the Division of Labor in paragraph I.1.3.

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II. David Ricardo Ricardo affirms and deepens the point that specialization through trade results in peace and prosperity.5 Trade leads to interdependence and prosperity and thus makes war less likely.6 Ricardo’s main contribution was proving that free trade is good for both parties even where one party has an absolute advantage in all goods traded so long as a relative advantage remains between at least one of the traded types of goods.7 Together Smith and Ricardo form the common backbone of liberal trade and economic theory.

C. Law and Economics: Richard Posner The equivalence of economic and political theory, the idea of a school of political-economy, finds its roots in English political economy with Ricardo. In contrast, the conflation of law and economics is a newer phenomenon. The leading advocate of law and economics is Judge Richard Posner. Posner offers a purely economic analysis of law. He is one of the representatives of pragmatic materialistic thinking, which is fairly widespread in the English speaking world. As such he is not an “anarcho-capitalist”8 – he is statist. Starting from unrealistic neo-classical assumptions – that economic actors are rational profit maximizers9 operating under conditions of perfect information,10 Posner argues for even less tenable conclusions. For Posner, the common law is developed based on its ability to maximize social wealth,11 and law seeks to maximize the economic well-being of citi5 David Ricardo, On the Principles of Political Economy and Taxation 7.13–7.16 (John Murray 1817), available at: http://www.econlib.org/library/Ricardo/ricP2a. html#Ch.7,%20On%20Foreign% 20Trade. 6 James Buchanan, Yong Yen, The Return to Increasing Returns, Boston: University of Massachussets Press. (1994), p. 331. 7 Ricardo, at 7.13–7.16. 8 Richard Posner writes, “I hope to challenge the assumption, largely unquestioned since Hobbes, that a state (if only a minimal, ‘nightwatchman’ state) is necessary to maintain the internal and external security of society. I am not advocating anarchy. My argument is that a state is not a precondition of social order in the circumstances depicted in the Homeric epics – and even there, it is just barely not. In our circumstances, we could not do without a state.” Richard Posner, The Economics of Justice (Cambridge, Mass: Harvard University Press, 1981), p. 119. 9 Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 1. 10 “. . . a free market operating without significant externality, monopoly, or information problems.” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 5.

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zens.12 Alone that would not in itself be problematic. However, Posner goes on to argue further that the law mirrors,13 and should mirror, economic processes.14 Those views are not tenable. Essentially, the legal theory proposed by Posner can be summed up as law being swallowed whole by economics. Posner’s theory – the law is developed to maximize wealth – must ultimately define and measure this wealth. However, measuring the economy with precision is a very difficult task (the greater the precision the greater the difficulty). Furthermore, money is not the only indicator of individual or social well-being. Posner however bases his theory on economic market values and so his theory is one dimensional. All goods cannot be monetized. My second criticism of Posner is also methodological. Posner is reductionist.15 If we adopt his position then legal decisions boil down to an all too simple weighing of economic well-being i. e. economic interests – value, in dollars and cents. However, that view would completely ignore teleology, hermeneutics and exegesis when interpreting legal texts. Interest balancing – whether using abstract vague and manipulable “utilities” (whatever that means) or concrete economic values does not consider exegetical and teleological interpretations of law, which escape yet can shape marketplace evaluation. Further, Posner’s method does not explain why society does or whether society should in fact maximize wealth. Posner really provides no reason why society should maximize wealth. He begs the questions of: maximize wealth for whom? and why? 11 “. . . the common law is best explained as if the judges were trying to maximize economic welfare.” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 4. 12 Richard Posner, Overcoming Law, Cambridge: HUP (1995), p. 109. 13 “Evidence for the implicit economic structure of the common law has been found in many studies of legal rules, institutions, Procedures, and outcomes. These studies are not limited to the occasional instances where the courts have adopted a virtually explicit economic formulation of the law, as in Judge Learned Hand’s formula for negligence” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), p. 5. 14 “The hypothesis is not that the judges can or do duplicate the results of competitive markers, but that within the limits set by the costs of administering the legal system (costs that must be taken into account in any effort to promote efficiency through legal rules), common law adjudication brings the economic system closer to the results that would be produced by effective competition – a free market operating without significant externality, monopoly, or information problems.” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), pp. 4–5. 15 Lloyd’s Introduction to Jurisprudence (Vº Edition), London: Steven and Sons (1985), p. 431.

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My last critique of Posner is a deepening of the methodological weaknesses that we have just discussed. Posner’s method confounds and confuses justice and wealth16 and overemphasizes economic factors in legal decision making. His troubling equivalence between justice and wealth confuses wealth and morality.17 He thinks that markets are “efficient” but efficient for whom? For those who hold wealth of course. Making the wealthy wealthier may be a good thing but the point is this goal is simply assumed and goes unquestioned in Posner’s purely market driven universe. Axiological cognitivism enables us to criticize the assimilation of morality to market values; Posner is confusing cause and effect, as well as means and end. Law and economics shape each other as superstructural justification and rationalization (law) of a material base of productive forces (economics). They are in a mutual feedback situation, which is generally determined by the economy. Aristotle makes clear that, as concerns distributive (social) justice, the economic system (the principle of distribution) is positive and conventional – it is determined by the laws of man, not those of nature. That is, the economic framework (communism, socialism, capitalism, feudalism etc.) is selected by the legal system. In contrast, for Posner, the economic system is and should be strictly determinative of the legal system. Posner also confuses the means (wealth – goods) and the end (a satisfying life – the good). Ultimately, Posner cannot resolve these confusions inherent in his theory. Moreover, he has not accounted for Marx’s views on the relation between productive base and ideological justificatory superstructure. Posner also does not take into account the views of Aristotle on distributive (social) justice and commutative justice (justice in transactions; corrective justice) – he focuses all his energy on justice in transactions, i. e. commutative justice. Thus, he champions a reductionist theory, which can only partly explain the phenomena of the relation between economic forces of production and juridical relations about production. A determination of whether and where 16 “. . . the linchpin of the analysis is that what is efficient depends on what people are willing to pay but this in it s turn is dependent on what they are capable of paying. In other words, the more wealth one has the more one is likely to increase it. The economic analysis is attacked not just because it lends itself to this pattern but because, as Coleman puts it, ‘it is that economic analysis requires and sanctions such patterns of distribution under the guise of pursuing the presumably desirable goal of efficiency’. There is some truth in this criticism.” Lloyd’s Introduction to Jurisprudence (Vº Edition), London: Steven and Sons (1985), p. 431. 17 “. . . to summarize briefly . . . I have tried to develop a moral theory that goes beyond classical utilitarianism and holds that the criterion for judging whether acts and institutions are just or good is whether they maximize the wealth of society.” Richard Posner “The Economics of Justice”, 1983 dans Lloyd’s Introduction to Jurisprudence, at 526.

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he is atomist or holist could improve the quality of Posner’s contribution to legal science as would meeting these points. To conclude, Posner suffers from a sort of reductionist thinking. He overemphasizes the market. In the end, Posner’s theory is yet another example of a crisis in Anglo-Saxon thought resulting from a poorly integrated theoretical atomism and fixation on empiricist methodology, the inability to see a forest where there are trees. That view is incomplete, even from the liberal individualist economic point of view: The value of a community is – according to capitalists like Smith (specialization),18 Ricardo19, (trade) Aristotle (humans are a rational, social, talking, animal), and Hayek (money as resource allocation signal) – more than the value of its members due to synergies such as specialization20 and economies of scale. However, this is contrary to the atomist ontology characteristic of Anglo-Saxon thought. That contradiction leads to theoretical confusion in the case of Posner. Law can and should give all members of a society the means to the end of a good life. Part of the good life consists in adequate wealth to live decently. However, Posner does not seem to see Aristotle’s position, that wealth is a means to the end of the good life and not an end in itself. The good life is made possible by wealth but wealth is a necessary but not sufficient means to the end of the good life.21

D. The Chicago School (Supply Side Theory): Milton Friedman Supply side economic theory is a reaction to the failures of Keynesian theory and essentially antithetical to Keynesianism. Supply side thinking dominated the American scene between 1980 and 1992 and remains very powerful and influential. This theory of the Chicago school can be summarized as an affirmation of the market and a radical critique of state intervention. 18 Smith also presents the famous example of a pin factory. He shows that cooperation and specialization of workers allow 10 people to collectively produce 48000 pins a day – even though in isolation these same people could barely produce 20 pins each. WN: B.I, Ch. 1, Of the Division of Labor in paragraph I.1.3. 19 Ricardo takes and deepens Smith’s view in his analysis of comparative advantage in international trade. Ricardo stresses the consequences of a policy of free trade: that free trade results in more wealth even for countries, which are relatively inferior in all terms of trade. David Ricardo, On the Principles of Political Economy and Taxation, Ch. 7, On Foreign Trade para. 7.16. Available at: http://www.econlib. org/library/Ricardo/ricP.html. 20 WN: B.I, Ch. 1, Of the Division of Labor in paragraph I.1.3. 21 Platon, La République. Aristote, Politique.

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I. Supply Determines Demand Supply side theory suggests that the balance between supply and demand is determined by supply – unlike Keynes; supply in this perspective creates its own demand. In fact, for supply side theory, supply disequilibria are relevant only in the specific case of a crisis – and even then, monetary policy can prevent and correct the imbalances. The supply side view is correct because the information economy constantly creates new consumer goods, which are not basic necessities yet, which are at times capital goods and also greatly improved and continues to improve coordination of supply and demand for traditional products. Thus, supply side theory holds true, at least in the IT branch. Greatly improved coordination of demand and supply brought about by instant global communication explains the constant decrease in inventory stocks during the last thirty years. “Just in time trade” strongly confirms the supply side theory shows how improving the flow of information augments productive capacity.

II. The General Theory as a Special Theory According to Friedman, Keynesian theory is partially incorrect. For Friedman, Keynes’s theory in fact is focused on one particular case – a major crisis – and is not valid as a general theory.22 That can be seen from the stagflationary failure of Keynesian theory in the 1970s. Friedman rightly criticises the Keynesian proposition that a rise in employment can result from an increase in the supply of money23 – true in the short term, but false in the mid and long term. Hayek and Friedman are very similar in their rejection of the Phillips curve.24

III. Primacy of the Market 1. The Role of Prices The Chicago school argues that: (1) Economic behaviour can be best explained by the neoclassical theory of prices. 22 Friedman, Milton John Maynard Keynes Domestic Studies Program, Hoover Institution, Stanford University (1988). 23 Id. 24 Milton Friedman, Monetarist Economics, Oxford: Institute of Economic Affairs (1991), p. 67; Milton Friedman, La Monnaie et ses Pieges, Paris: Dunod (1993). P 249–261.

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(2) The competitive market is the best form of economic organization. (3) Hence, the state must refrain from any significant change in the allocation of resources.25 For supply siders, the market is the best regulator and more effective than the state because prices play the role of signals that make economic calculation rational and optimally allocate resources by avoiding waste. Money is seen as a quantum of information:26 Prices transmit information, they encourage resource users to be guided by this information,27 and they encourage owners of these resources to take account of this information.28 2. Monetary Policy Supply side theory is defined then by the key role given to supply as determining aggregate equilibria, as creating its own demand. Supply side theory also defines itself by its positions on taxation, monetary policy and fiscal policy. As a tax theory, supply side economics suggests that taxation does not acting on a static economy – rather, the economy reacts to any taxation. Thus, an increase in tax does not necessarily mean a transfer of wealth or increase in state revenues. Taxes can encourage or discourage the wealth creation – which is the condition of its previous distribution. Supply side theory of emphasises production of wealth and points out the risks that are inherent to a redistributive tax policy (which is not equivalent to a fiscal policy of redistribution). What are its positions on monetary and fiscal policy? To understand this should appreciate that supply side economics is also a theory of currency. 25 Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988).p. 307. 26 F.A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519 (1945). 27 M. Bruce Johnson, Hayek and Markets, 23 SW. U. L. Rev. 547, 548 (1994) (“Hayek argued that markets coordinate the various bits of information and knowledge scattered among individuals spontaneously, without design or comprehension by any human mind.”). This might seem to be what Adam Smith said. However, Smith focuses on self love as the driving economic force reasoning inductively. For Hayek, in contrast, the driving economic force is information. Thus, Hayek would reject the labor theory of value. Money to Hayek is just information. Smith, like Locke and Marx, argues that money is but crystallized labor (the labor theory of value). For Hayek, money is reified. It may represent labor, in its origin, but in its ends it is more than just labor. It is labor applied to projects. Hayek thinks this is best coordinated by decentralized market transactions. Money, for Hayek, has both a past (the labor it represents) and a future (the investments it will fund) and is also a signal (a quantum of information). This is why Hayek does not, in my opinion, reject the labor theory of value. His theory of money and trade, in my opinion, goes beyond what Smith, Locke and Marx were saying. 28 Prix et Théorie économique, M. Friedman. Paris: Economica, 1983.

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a) Money as a Signalling System According to Friedman, the role of money in the capitalist economy29 is to set standards of production, to organize production,30 to channel and coordinate production.31 Currency serves to maintain and increase the productive apparatus and adjusts short term consumption to production. Currency is used as a signal in the economy. Thus, distortions of that signal are very bad. For this reason, Friedman proposes an anti-inflationary monetary policy.32 Inflation is bad for the economy, a ‘disease’33 because it is distortionary. The cause of this disease is bad monetary policy.34 b) Money as an Instrument of Economic Management But currency plays a second role, because it is also a good.35 It is both use value and exchange value. The price of money is measured in its interest rates.36 It has both a stable demand37 and is inelastic38 – according to Keynes demand for currency is elastic39 – and Keynes was wrong there. An increase in the amount of money (an increase of M1) will have the effect of triggering inflation,40 but ultimately will not have an effect on reducing unemployment.41 According to Milton Friedman, a change in the price of money – that is, a change in interest rates – to address the exogenous shocks is valid as a solution to unemployment only under conditions of a great general crisis such as in 1929.42

29

Milton Friedman, La Monnaie et ses Pieges, Paris: Dunod (1993), p. 9. Milton Friedman, La Monnaie et ses Pieges, Paris: Dunod (1993), p. 9. 31 Milton Friedman, Capitalism and Freedom. Chicago: U.Chi. Press (1962). 32 Milton Friedman, The Optimum Quantity of Money, Chicago: Aldine Publishing (1970), p. 1. 33 Milton Friedman, La Monnaie et ses Pieges, Paris: Dunod (1993), p. 191. 34 “Inflation is always and everywhere a monetary phenomenon”. Milton Friedman, Monetarist Economics, Oxford: Institute of Economic Affairs (1991), p. 16. 35 Milton Friedman, The Optimum Quantity of Money, Chicago: Aldine Publishing (1970), p. 52. 36 Id. at 51. 37 Id. at 62. 38 Id. at 143. 39 Id. at 142. 40 Id. at 95. 41 Id. at 106. 42 Id. at 107. 30

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c) Monetary Policy must Prevent Inflation (and Deflation) Due to the fact that the market for money is not neutral,43 that money is both a means by, which other goods are exchanged and itself a good, inflation (as well as deflation) is by nature bad for the economy.44 For this reason the State budgets must be balanced.45 And, if inflation must be controlled, the mechanisms to attain stable growth with minimal cyclical downturn are the monetary and fiscal policy, not regulation of prices46 or wild printing of fiat currency (M1). Moreover, monetary and fiscal policy are linked47 because an inflationary policy will have an effect of being a hidden tax.48 In other words, distortionary market interventions, such as controls on wages and prices, are unproductive.49 Governmental economic interventions cannot create a stable level of full employment.50 Fortunately, effective remedies for the disease of inflation exist: indexing prices and interest rates to take into account inflation and fiscal discipline.51 Inflation cannot be used effectively to address unemployment and in fact even increases unemployment according to Milton Friedman. Thus Friedman – like Marx – believes in a natural rate of unemployment.52 As to exchange rates, they must be freed from artificial regulatory standards and determined by the free market.53 Thus the collapse of the Bretton Woods system was not inherently problematic according to supply side economics.

43 Milton Friedman, Monetarist Economics, Oxford: Institute of Economic Affairs (1991), p. 15. 44 Milton Friedman, The Optimum Quantity of Money, Chicago: Aldine Publishing (1970), p. 265. 45 Id. at 264. 46 Id. at p 264. 47 Milton Friedman, Monetarist Economics, Oxford: Institute of Economic Affairs (1991), p. 11. 48 Id. at. 25. 49 Milton Friedman, The Optimum Quantity of Money, Chicago: Aldine Publishing (1970), p. 264. “Monetary and fiscal measures are the only appropriate means of controlling inflation.” 50 Id. at 117. 51 Milton Friedman, Monetarist Economics, Oxford: Institute of Economic Affairs (1991), p. 30. 52 Milton Friedman, La Monnaie et ses Pieges, Paris: Dunod (1993). P 261. Nous n’adoptons pas cette position. Certes la déflation déclenche la chômage: mais l’idée que le chômage est inévitable ne semble pas démontré. 53 Milton Friedman, The Optimum Quantity of Money, Chicago: Aldine Publishing (1970), p 157.

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d) Opposition to State Intervention The logical consequence of a preference for markets is an opposition to state intervention. However, the Chicago school does not argue for anarchism, it too is statist. Opposition to State intervention is however reflected in supply side monetary theory: The creation54 of currency55 and the manipulation of interest rates56 alone cannot stimulate57 economic growth.58 The exactitude of these findings is verified by the experience of the 70s. The controls on wages and prices then only encouraged inflation and unemployment by causing distortions in the price structure, which reduced the effectiveness of the system. The resulting decrease in production increases the adverse side effects of the fight against inflation rather than reducing them. Controls on prices and wages waste manpower.59 The manipulation of money supply – or the interest rate – does not lead to increased employment. This is not to say that there is no role for the state in the economy. Under the condition of a non-inflationary monetary policy and a balanced budget the state can allocate, lend or borrow in order to make effective collective economic policies. Thus, fiscal policy is a better tool for state intervention than monetary policy. Monetary policy is “defensive” assuring stability, a condition precedent for prosperity. Fiscal policy in contrast is “active” and allows effective State interventions.60

E. The Vienna School Contemporary Anglo-Saxon legal thinking is dominated by echoes of the theorists of the Scottish enlightenment in social contract thinking (Hobbes, Locke) and in economic theories of law (Smith, Ricardo). However, within 54 “Le taux de croissance de la masse monétaire est le principal déterminant du taux d’inflation.” Studies in Monetary Economics, K. Brunner et H. Meltzer. 55 Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988), pp. 314–315. 56 “La cause immédiate de l’inflation est toujours et partout la même: un accroissement anormalement rapide de la quantité de monnaie par rapport au volume de la production.” Calmann Lévy, Inflation et Systèmes monétaires, 1969. 57 “La politique monétaire est une action structurelle et non un réglage conjoncturel.” Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988), p. 309. 58 Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988), pp. 311–312. 59 La Liberté du Choix, M. Friedman, Belfond 1980. 60 Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: editions sirrey – p. 317–(1988).

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economic thinking about law, the Austrian school of economics attempts, unsuccessfully, to present alternatives to the intellectual progeny of the Scottish enlightenment. Although the Vienna circle started in the 1920s in Vienna, most Vienna circle theorists went into exile during the Second World War. After the war most intellectuals remained in exile settling in the USA – including Kelsen, and Hayek; further, most of the Vienna circle’s post war publications were in English. The Vienna Circle is defined around an attempt to create a new epistemology. Vienna epistemology denies the existence of ideal and metaphysical entities, so it is consistent with modernity (materialism) and expresses the same atomism and scepticism that we have already seen since William of Occam. The Vienna circle is essentially hostile to government because of atomism and radical individualism, a tendency reinforced by the experiences of totalitarianism during the second war. The Vienna circle’s attempts to build an innovative epistemology – whether by considering entities only in their relationship with each other and not in terms of themselves, or by an attempt at deconstruction of thought, or by a rejection of the empirical were ultimately abandoned as too obscure and ultimately failed to serve as the basis for a way of thinking independent of the modernity from, which it issued. Thus, Mises and Rothbard are marginalized because of their radical subjectivist epistemology, whereas Hayek moved to prominence because he abandoned his attempt to adopt or apply Vienna circle methodology to neoclassical theory. The Austrian school’s attempt to break from the epistemology of late modernity via a radical constructivism and its consequence, a pure theory, failed as seen most clearly in the irrelevance of Kelsen. The need for theory to be grounded in the praxis, in the real world of every day life (Marx) explain the empirical failure of the Austrian school’s economic theories and Hayek’s choice to abandon the more radical positions of the School of Vienna.61 Whatever the differences within the theory of law and economics between the school of Chicago, Virginia, and Vienna, their proposals on the practical level are similar. Theorists of the Vienna school are against any state intervention in the economy. They presuppose that economic choices are sound and are done in the framework of free competition. They oppose state economic planning and collective action because, in their view, these 61 Hayek ultimately criticized Kelsen’s epistemologie becuase Kelsen isolated theory from practice making verficiation impossible and thus rendering theory useless. Friedrich Hayek. Droit Legislation et Liberté, vol. 2. PUF (1976), p. 57.

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acts impede the flow of information, increase transaction costs and hinder individual62 from achieving all they can. They believe everyone is motivated by profit.63 In other words, the presuppositions of the differing schools of economic thought are sufficiently similar allow them to be analysed under one rubric, law and economics. The economic wing of the Austrian School includes anarcho-capitalists such as Rothbard and Mises but also statists like Hayek. The Vienna school also includes Freud, Jung, and Kelsen who, though opposing state power, do not seem to be anarchists. The anarchism wing of the Vienna school must be qualified as but a partial anarchism – which brings to mind Nozick, underscoring our position that the similarities among the schools of Virginia and Chicago on the one side and the school Vienna on the other are greater than the differences.

I. Mises and Rothbard Sometimes Rothbard is characterized as an anarcho-capitalist – because he proposes the replacement of the State by a total privatization of public functions.64 Rothbard is very hostile toward the State. He regards the state as an armed gang of criminals65 and rejects the state as legitimate form of social organization.66 Yet David Friedman, who is also an anarchist, is not in the Vienna school for methodological reasons – his economics are neoclassical. 62 Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988).p. 283. 63 Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988).p. 295. 64 “. . . Unlike Locke, however, the anarcho-capitalists do not find such a state of nature without a common judge inconvenient or uncertain. They maintain that even the minimal State is unnecessary since the defence of person and property can be carried out by private protection agencies. Anarcho-capitalists, http://dwardmac.pit zer.edu/dward/newrightanarchocap.html. 65 Sur Rothbard: ‘If you wish to know how the libertarians regard the State and any of its acts,” he wrote in For A New Liberty: The Libertarian Manifesto (1973), ‘simply think of the State as a criminal band, and all the libertarian attitudes will logically fall into place.’ He reduces the libertarian creed to one central axiom, ‘that no man or group of men may aggress against the person or property of anyone else’. Neither the State nor any private party therefore can initiate or threaten the use of force against any person for any purpose. Free individuals should regulate their affairs and dispose of their property only by voluntary agreement based on contractual obligation.” Anarcho-capitalists, available at: http://dwardmac.pitzer.edu/dward/newrightanarcho cap.html. 66 Rejecting the State as a ‘protection’ with an illegitimate claim on the monopoly of force, Rothbard would like to see it dissolved, as would Friedman, into so-

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Should the Austrian school be regarded as a serious alternative to neoclassical thought?67 The Austrian school offers a subjectivist methodology and a constructivist epistemology. Classical economic theory is in contrast objective. Subjectivism condemns the Vienna school to powerlessness, isolated from practical experience, as clearly illustrated in the case of Kelsen’s pure theory of law (hereafter RR). Subjectivism leads to a rejection of statistical reliability.68 The epistemology of the Vienna School is materialist, but it cannot be verified by material experiences due to subjectivism. Thus, Viennese positions are purely formal. Statistical methods, rejected by the Vienna school, are a prerequisite for a verifiable study of the past and also for predictions. The ability to predict is abandoned by the Austrian theory.69 The Austrian school, despite its rejection of epistemological realism, should be seen as purely formal representation – and thus, this is doomed to sterility. Rothbard and Mises also reject certain presuppositions of neoclassical economics,70 in particular that agents are rational economic actors,71 that cial and market arrangements. “Anarcho-capitalists”, http://dwardmac.pitzer.edu/ dward/newrightanarchocap.html. 67 “. . . le Cercle de Vienne refondent le concept de signification, et tentent de construire un langage (unifié) de la science (unifiée) qui permet de formuler tous les énoncés scientifiques légitimes, sans qu’on puisse l’utiliser pour des théories métaphysiques. Cela conduit à formuler la démarcation entre science et métaphysique et permet ainsi de libérer la Science vraie de la métaphysique (par exemple, la psychologie devient alors le behaviorisme). Selon les positivistes logiques, tous les états mentaux doivent (pouvoir) être physique. Pour cette raison, les besoins et les préférences des agents se trouvent automatiquement évacués du champ d’analyse scientifique – ce que rejette Hayek pour l’économie ([1943]) La méthodologie du Cercle de Vienne repose en définitive sur l’induction . . . Cette approche ne satisfait pas Hayek, ce qui explique en partie son engouement pour la Logik der Forschung de Popper . . . qui autorise Hayek à poursuivre dans la voie subjectiviste” Schmidt, David Versailles, Une théorie hayekienne de la connaissance économique? Revue d’Economie Politique Nº 6, XI/1999 Paris: Dalloz, p. 822. 68 Mises and Rothbard oppose the state and favor market transactions because market interactions are positive sum whereas state interactions are zero sum (e. g. an election) or negative sum (war). “The Austrian Search for Realistic Foundations”, Bryan Caplan, Why I am not an Austrian Economist. Available at: http:// www.gmu.edu/departments/economics/bcaplan/whyaust.htm. 69 “Les positions de Hayek et Mises sur l’économie comme science compositive (leur individualisme méthodologique hérité de Carl Menger) les conduisaient à la conclusion abrupte d’une imprédictabilité plus ou moins radicale dans les science sociales.” Schmidt, David Versailles “Une théorie hayekienne de la connaissance économique?” Revue de’Economie Politique Nº 6, XI/1999 Paris: Dalloz, p. 820. 70 “A persistent criticism of neoclassical economic theory is that it is founded on severely unrealistic assumptions. Friedman’s (1953) reply that unrealistic assump-

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human needs have no limits, but also the ability to objectively measure market values. Their methodology is unique as it is a priori and non-empirical.72 This method cannot verify propositions and so must be rejected – it cannot propose pragmatic solutions to real problems. Starting from their rejection of the neo-classical approach, the Vienna school tries to develop a new methodology,73 without success.74 In the end a rejection of a statistical methodology75 dooms the Vienna circle to irrelevance.76 The most striking example of irrelevance and impotence is Kelsen – who, incidentally, is strongly criticized by Hayek.

tions are acceptable if they yield correct predictions leaves many unsatisfied. Gerard Debreu, for example, argues that because economics is “denied a sufficiently secure experimental base, economic theory has to adhere to the rules of logical discourse and must renounce the facility of internal inconsistency.” (1991, p. 2). While some of these criticisms may stem from hostility to theory as such, one project the Austrian school of economists has pursued is to rebuild economics on realistic, nonneoclassical assumptions.” Bryan Caplan, The Austrian Search for Realistic Foundations Department of Economics and Center for the Study of Public Choice http://www.gmu.edu/departments/economics/bcaplan. 71 Bryan Caplan, The Austrian Search for Realistic Foundation, http://www. gmu.edu/departments/economics/bcaplan. 72 Xavier Greff (éd.), Economie, Paris: Economica, 1990, p. 16. 73 Bryan Caplan, The Austrian Search for Realistic Foundations, http://www. gmu.edu/departments/economics/bcaplan. 74 “Ludwig von Mises and his student Murray Rothbard, explicitly reject the foundations of modern neoclassical consumer and welfare theory and try to construct a systematic alternative. . . . I argue that their effort to rebuild economics on non-neoclassical foundations fails, and that their critique of neoclassical foundations is either wrong or strongly overstated.” Bryan Caplan, The Austrian Search for Realistic Foundations, available at: http://www.gmu.edu/departments/economics/bca plan. 75 L’école autrichien est subjectiviste: sur les valeurs morales, sur le capacité à mesurer économique, et même (ou au moins chez Hayek) sur l’épistémologie. “Innumerable Austrian essays and books use the word ‘subjectivism’ in the title. This leaves one with the impression that other economists fail to embrace subjectivism – an impression that is simply false. What neoclassical economist claims that the value of a good derives from its labor content, or its intrinsic goodness, or anything other than individuals’ preferences? . . . This conclusion is amazing, for Mises repeatedly insists that economic theory gives only qualitative, not quantitative laws”. Bryan Caplan, The Austrian Search for Realistic Foundations, available at: http://www.gmu.edu/departments/economics/bcaplan. 76 Id.

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II. Hayek Hayek’s positions are prudent and reasonable, in part because of the fact that Hayek breaks with the positions of other issues Austrians. Hayek, who opposes the totalitarian state, had no objection to the State itself and can not be considered an anarchist. 1. Hayek on Inflation Hayek’s position on inflation is quite clear: inflation, at the macro-economic level, especially over time, is disastrous for the economy. The experience of Germany between 1923 and 1930 is empirical evidence of this. The American inflation between 1973 and 1981 – which triggered hyperinflation, for example in Argentina and Israel – are other examples of what is now orthodoxy: that inflation distorts economic signals. A neutral monetary policy – zero inflation – encourages productivity.77 2. Hayek on Epistemology Hayek’s epistemology is noteworthy:78 Sometimes his epistemology brings him closer to the other theorists of the Austrian School, usually it far surpasses them by its brilliance. For Hayek the question of the economy is in fact a question of information.79 The problem of economic science is to develop a heuristic to man77

Friedrich von Hayek, Money, Capital, and Fluctuations, London: Routledge (1984), p. 161. 78 “Self-designated Austrian economists have two different views of modern neoclassical economics. Some, such as F.A. Hayek, take issue with certain aspects of neoclassical economics, without rejecting its fundamentals. . . . in large part he viewed his work as a complement to, rather than a substitute for, the neoclassical approach. He offered a bundle of insights on information economics, the theory of the firm, monetary economics, and comparative systems (Hayek [1984]), not new and better foundations for economic analysis. Perhaps to counter misunderstanding of his work, late in his career Hayek expressed his desire to: “avoid giving the impression that I generally reject the mathematical method in economics. I regard it as indeed the great advantage of the mathematical technique that it allows us to describe, by algebraic equations, the general character of a pattern even where we are ignorant of the numerical values determining its particular manifestation. Without this algebraic technique we could scarcely have achieved that comprehensive picture of the mutual interdependencies of the different events in the market.” ([1979], p. 28), Bryan Caplan, The Austrian Search for Realistic Foundations http:// www.gmu.edu/departments/economics/bcaplan. 79 “The ambiguity of the title of this paper is not accidental. Its main subject is, of course, the role, which assumptions and propositions about the knowledge pos-

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age information disseminated and known only partially.80 In other words, the information economy is far from perfect – which condemns both socialism (a planned economy is impossible) – and the theory of efficient capital markets. The Chicago school’s efficient theory capital markets hypothesis proposes that markets function perfectly and thus information flow is also sessed by the different members of society play in economic analysis. However, this is by no means unconnected with the other question, which might be discussed under the same title – the question to what extent formal economic analysis conveys any knowledge about what happens in the real world. Indeed, my main contention will be that the tautologies, of, which formal equilibrium analysis in economics essentially consists, can be turned into propositions, which tell us anything about causation in the real world only in so far as we are able to fill those formal propositions with definite statements about how knowledge is acquired and communicated. In short, I shall contend that the empirical element in economic theory – the only part, which is concerned not merely with implications but with causes and effects and, which leads therefore to conclusions, which, at any rate in principle, are capable of verification – consists of propositions about the acquisition of knowledge.” Freidrich Hayek, “Economics and Knowledge”; Presidential address delivered before the London Economic Club; November 10 1936; Reprinted from Economica IV (new ser., 1937), 33–54. 80 Friedrich Hayek, The Use of Knowledge in Society, Reprinted from the American Economic Review, XXXV, No. 4; September, 1945, 519–30. “What is the problem we wish to solve when we try to construct a rational economic order? On certain familiar assumptions the answer is simple enough. If we possess all the relevant information, if we can start out from a given system of preferences, and if we command complete knowledge of available means, the problem, which remains is purely one of logic. That is, the answer to the question of what is the best use of the available means is implicit in our assumptions. The conditions, which the solution of this optimum problem must satisfy have been fully worked out and can be stated best in mathematical form: put at their briefest, they are that the marginal rates of substitution between any two commodities or factors must be the same in all their different uses. This, however, is emphatically not the economic problem, which society faces. And the economic calculus, which we have developed to solve this logical problem, though an important step toward the solution of the economic problem of society, does not yet provide an answer to it. The reason for this is that the data from, which the economic calculus starts are.never for the whole society given to a single mind, which could work out the implications and can never be so given. The peculiar character of the problem of a rational economic order is determined precisely by the fact that the knowledge of the circumstances of, which we must make use never exists in concentrated or integrated form but solely as the dispersed bits of incomplete and frequently contradictory knowledge, which all the separate individuals possess. The economic problem of society is thus not merely a problem of how to allocate given resources – if given is taken to mean given to a single mind, which deliberately solves the problem set by these data It is rather a problem of how to secure the best use of resources known to any of the members of society, for ends whose relative importance only these individuals know. Or, to put it briefly, it is a problem of the utilization of knowledge, which is not given to anyone in its totality.”

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perfect (instantaneous, global, with no transaction costs). Hayek sees however that in reality information flow is imperfect, that there are always transaction costs (e. g., translators, lawyers) and communication is neither cost-free nor instantaneous. His perception of the limits to information explains both the need for minimal regulation but also the impossibility of an effective planned economy. Hayek’s epistemology will have further implications, and must be examined in depth yet to identify them. We begin with a deepening of Hayek’s theory on information, i. e. his epistemology. According to Hayek: – there is a vast amount of information – it is impossible for any one agent to know all information. – information known by a company is greater than the information held by any individual person. – there is little difference between the absolute difference of a well-informed person and an ill-informed person (This is a questionable proposition – Warren Buffet would disagree with it). However, the relative difference between the knowledge of an ill-informed and well-informed person – a value of the derivative form of (x) is crucial to economic acts (i. e. despite the fact both are ill informed relative to any company and the market as a whole the better informed person can outperform the less well informed person) These epistemological points explain in detail why a planned economy or an anarchic state are less productive than an unplanned economy in a State. A planned economy cannot manage all the information available and will produce too much or too little. However, an entirely anarchic economy will be unable to efficiently distribute information and face heightened transaction costs: for example in an anarchist system transaction costs will be raised by the need to employ private agencies for security and other similar conflicts will reduce the availability of information. It seems that Hayek has managed to achieve Aristotle’s golden mean, literally, in the field of economics. Hayek’s epistemology allows him to surpass other Austrians, and lead him to the following conclusion: – the formation of consciousness operates at a level below the conceptual81 level and not at the symbolic level. 81 “A[rtificial]. I[ntelligence]. research has for some time been dominated by two competing methodologies, resting on two distinct paradigms as to what intelligence might be and what sort of computer might best be employed to simulate or re-instantiate it.

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Rather than compare our sensory perceptions with our concepts (whether innate – materialism – or learned – behaviouralism), our perception is triggered by the object. If that object is quite distinct, (sensory impression > threshold of perception) it is conceptualized as an object our conscience. The objects of understanding, from this perspective, are built for and by us. This form of constructivism is not subjective but ultimately denies the opportunity of verification – some objects will exist but not be cognized as such due to being below the requisite perceptual threshold. This radical subjectivity brings Hayek epistemologically closer to Rothbard and Mises, but was ultimately abandoned by Hayek in practice for the simple reason that its consequence is the erasure of knowledge and its replacement by subjectivity. On the one hand is the older and more orthodox ‘symbolic’ or ‘symbol-processing’ paradigm, which sees intelligence as a matter of the sequential manipulation of meaningful units (terms, concepts, ideas) of roughly the sort with, which we are familiar in reasoned introspection. The upholders of this paradigm seek to construct artificially intelligent systems out of entities that are symbols (have both semantic and syntactic properties), operated upon in ways, which model the rational processes studied by logic. On the other hand is the more modern, and in some respects more challenging, ‘connectionist’ or ‘sub-symbolic’ paradigm. This sees intelligence as a matter of the processing of units much more finely grained in character than those with, which we normally suppose ourselves to be familiar in conscious experience. Such processing is to be conceived by analogy not with processes of reasoning as standardly understood, but with the massively parallel processing of electrical impulses by the billions of nerves distributed through the human brain, nerves bound together in networks of a sort, which are subject to a constant and subtle forming and re-forming of connections. In the corresponding simulations, sub-symbolic entities participate in numerical – not symbolic – computation, and inter-nerve connections are modelled by applying variable weightings to the numerical values (for example signal intensities) which pass through the system from node to node. The models here are derived from neuroscience, but also from statistical thermodynamics and from other disciplines dealing with processes of a holistic sort. . . . Hayek tells us that the problem of The Sensory Order is that of establishing the relation between the ‘two orders’ of the subjective, sensory, perceptual, phenomenal, on the one hand, and of the objective, scientific, physical on the other. The main thesis of the work is indeed an ambitious extrapolation of Mach’s own thesis concerning the nature and status of sensations. Hayek wants to show that all attributes of mental experience can be explained by the place in a system of connections of corresponding groups or patterns of nerve-excitations. He wants to show, in other words, that those mental properties with, which we suppose ourselves to be acquainted through introspection, through the observation of other people’s behaviour, through history, poetry, etc., are – lock, stock and barrel – a matter of certain structural or relational properties of the nervous system. Barry Smith “The Connectionist Mind: A Study of Hayekian Psychology” Department of Philosophy and Center for Cognitive Science, University at Buffalo French translation forthcoming in Intellectica. http://maelstrom.stjohns.edu/CGI/wa.exe?A1=ind9711&L= hayek-http://maelstrom.stjohns.edu/archives/hayek-l.html.

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I reject the Vienna school on constructivism because truth exists outside the observer as an objective fact. Despite the criticism of Vienna style constructivism, Hayek’s theory influences theories of artificial intelligence especially in cognitive science and it is radically different from a materialist conception (where the object of perception will have a real existence apart from the observer, for example Marx), or idealistic (where the object of observation is in fact an instance of a noetic emanation, e. g. Plato). Hayek’s epistemology is consistent with one of the final positions of the School of Vienna: that knowledge is subjective, and created by the observer (which is not my position). The aporia raised by this theory is that the epistemology of the subjectivist Vienna circle,82 which also refers to values,83 is contradictory to a nomothetic economic theory. Thus, Vienna economic propositions, if consistent with Vienna school epistemology, must be purely formal. For this reason a consistent Vienna economics cannot have a practical application – which makes the Vienna school powerless in practice. This impotence is more evident in Rothbard and Mises than Hayek, obviously. However, it should be remembered that Hayek essentially broke from the Vienna school as outlined above. In summary, for Hayek, information is unevenly distributed and only partially known.84 That is to say: there is a plenitude of information, but this vast “ocean” of information is known only partially by any economic agent – including a government. He is correct there. An obvious implication of that fact is that transaction costs exist, and are inevitable. Another is a healthy scepticism toward universalist proposals. Hayek rejected planned economies because of the fact that information available to the planner will be too limited to meet the needs of consumers.85 But he also rejected the Chicago theory of the efficient capital market because that theory proposes that information is perfect and that regulation of capital markets is ineffective, which is not the case. Verifying Hayek’s epistemology directly is difficult if not impossible. Our verification is indirect and consists of a verification of correspondence be82 Carlo Zappia, Radical Subjectivism and Austrian Economics (June, 1996). Paper contributed to the forthcoming volume: Mongiovi G. and Koppl R. (eds.), Subjectivism and Economic Analysis. London: Routledge. 83 According to Hayek costs are subjective and incommensurable. Hayek, “Economics and Knowledge”, LSE Essays on Cost James Buchanan, G. Thirlby (eds.), New York: NYU Press (1981), pp 14–15. 84 Schmidt, David Versailles “Une théorie hayekienne de la connaissance économique?” Revue de’Economie Politique Nº 6, XI/1999 Paris: Dalloz, p. 819. 85 Schmidt, David Versailles “Une théorie hayekienne de la connaissance économique?” Revue de’Economie Politique Nº 6, XI/1999 Paris: Dalloz, p. 820.

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tween his economic model and the empirical reality. Hayek’s position on inflation is exact.86 The empirical verification comes from historical experiences, notably in Germany in the 1930s. The verification shows Hayek’s theory is correct. Rectitude here is defined as a correspondence between reality and a description developed from reality. Hayek’s descriptive conclusions are correct: the difficulty is that they are based on an epistemology, which appears, in a theoretical sense, contradictory.87 This contradiction – which we believe is only apparent – arises because of the fact that the epistemology of the School of Vienna is subjective.88 But this contradiction is only apparent. Hayek does not insist that Austrian economics is fundamentally different from neoclassical economics. Thus he can use statistical methods and other tools of neoclassical economic analysis. He could also explain this contradiction by using the distinction between practical reason (phronesis) and theoretical reason.89 Hayek’s epistemology will then be theoretical rationality, but his economic thinking will be practical reason (phronesis). By way of either of these two loopholes the theoretical contradiction in Hayek’s work disappears.90 3. Hayek’s Prescriptions As to his prescriptions, like other neoclassical theorists Hayek too advocates privatizing certain state functions.91 Yet, Hayek reserves a role for the 86 Friedrich A. Hayek, Can We Still Avoid Inflation? dans Austrian Theory of the Trade Cycle and Other Essays This essay was originally given as a lecture before the Trustees and guests of the Foundation for Economic Education at Tarrytown, New York on May 18, 1970, and was first published in the first edition of this book (1978). Available at: http://www.mises.org Auburn, Alabama 36849–5301. 87 Friedrich von Hayek, Money, Capital, and Fluctuations, London: Routledge (1984), p. 184. 88 De fait Hayek a rompu avec l’épistémologie du Mises en 1937. Christian Schmidt, David Versailles “Une théorie hayekienne de la connaissance économique?” Revue de’Economie Politique Nº 6, XI/1999 Paris: Dalloz, p. 822. 89 Si Hayek fait cette distinction nous n’avons pas le rencontré: ceci est que notre hypothèse. Kelsen, suivant Hume, spécifiquement rejette la distinction raison pratique/raison théorique. 90 Pour vraiment déterminer cette question il fallait une étude d’épistémologie qui comparera la matérialisme, l’idéalisme, et la pensée de Hayek – ce qui n’est pas notre objective ici. Notre hypothèse est que cette épistémologie puisse être correcte. Vu qua pensée de Hayek soit exacte sur l’économie, il est très probable que son épistémologie soit précise et correcte. Sa théorie de l’information semble correcte et nous l’adoptons tentativement. Sa théorie de la conscience doit être explorée en détail avant une conclusion quelconque. 91 F. von Hayek, “Toward a Free Market Monetary System” Journal of Libertarian Studies, 1979, p. 1 (disponible sur internet, http://www.infoseek.com: terme de recherche “Hayek”.

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state to provide essential goods.92 In contrast to other neoclassical economic theorists, Hayek appears to be holist – he recognizes that human society is more powerful than one man alone.93 Hayek notes that freedom and equality are concepts in tension and even opposed.94 He proposes privatization of the monetary function of the State. Of the neoclassical theorists his thinking is definitely the most interesting and is likely influenced by Schumpeter.

F. The School of Public Choice: James Buchanan Is there a democratic path to move from individual preference to a rational collective choice where citizens are not victims of external pressures, such that everyone is free to make choices?95 The School of public choice tries to find (affirmative) answers to this question. Public Choice aims to apply the tools of economic analysis to policy issues. Thus, one can speak of a “political marketplace”96 of “electoral prices”, 92 Friedrich Hayek, The Constitution of Liberty, and Anarcho-Capitalists in The Constitution of Liberty, Chicago: University of Chicago Press, 1960 (1960), he rejected the notion of social justice and argued that the market creates spontaneous social order. However, while he wished to reduce coercion to a minimum, he accepted the need for the coercion of a minimal State to prohibit coercive acts by private parties through law enforcement. He also accepted taxation and compulsory military service. While a harsh critic of egalitarianism and of government intervention in the economy, he was ready to countenance a degree of welfare provision, which cannot be adequately provided by the market. His views have had an important influence on neo-Conservatives, especially those on the right wing of the Conservative Party in Britain.” http://dwardmac.pitzer.edu/dward/newrightanarchocap.html. 93 “What a free society offers to the individual is much more than what he would be able to do if only he were free. . . . it is largely because civilization enables us constantly to profit from knowledge, which we individually do not possess and because each individual’s use of his particular knowledge may serve to assist others unknown to him in achieving their ends that men as members of civilized society can pursue their individual ends so much more successfully than they could alone. “Quotes from F.A. Hayek” http://www.freedomsnest.com/index.html, ou bien http://www.freedomsnest.com/quotes.html. 94 “6. Equality of the general rules of law and conduct, however, is the only kind of equality conducive to liberty and the only equality, which we can secure without destroying liberty. Not only has liberty nothing to do with any other sort of equality, but it is even bound to produce inequality in many respects. This is the necessary result and part of the justification of individual liberty: if the result of individual liberty did not demonstrate that some manners of living are more successful than others, much of the case for it would vanish.” Hayek, “Quotes from F.A. Hayek” at: http://www.freedomsnest.com/quotes.html. 95 Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988), p. 139. 96 Id. at 137.

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“fiscal prices”97 and “fiscal markets.”98 In this market, one can distinguish supply (a policy) and demand (the vote of citizens or their representatives).99 Public choice is based on three fundamental assumptions. First, only property rights can best ensure the rights of individuals in the framework of the market.100 Second, the existence of market failures in resource allocation does not justify government intervention, except in a very few cases. That is why it is necessary to allow individuals to establish “quasi-markets” that could lead to an optimal situation. Third and finally, according to Public Choice, the market is the real factor of stability “social systems”.101 Are these views valid?

I. The Analysis of “Political Markets”102 Public choice is a neoclassical individualistic theory.103 It can be compared to Posner’s theory of law and economics because it establishes equivalence between the economic and the political. However, it differs from Posner in that it does not create an analogy between justice and economy. Instead, it makes an analogy of politics and the marketplace. Buchanan proposes an anarchical individualist theory104 based on the social contract directed105 to an anarchic individualist utopia.106 However, 97

Id. at 226. Id. at 225. 99 Jean-Claude Martinez, Lettre Ouverte aux Contribuables, Paris: Albin Michel (1985), p. 37. 100 James Buchanan Post Socialist Political Economy, Cheltenham, UK: Edward Elgar. Pour Buchanan la propriété privé assure un lien étroit entre le possedeur et le possédé, qui assure ainsi une gestion optimale du bien. On peut bien sur envisager des régimes du contrôle autre que la propriété. Par exemple la relation entre un soldat et les choses sous son contrôle n’est pas propriétaire mais est encore plus contraignante qu’une relation propriétaire. D’autres regimes que la propriété privé sont possibles; mais selon les perspectives libéraux ils seront moins efficace ou plus contraignantes. 101 Poussard Dany Écotaxe: La fiscalité comme instrument de politique publique, entre incitation et efficacité, Mémoire du DEA, Université Paris I (1995), p. 30. 102 James Buchanan Les Limites de la Liberté, Paris: LITEC (1975), pp. 178– 184. 103 James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 297. 104 James Buchanan, Les Limites de la liberté, Litec (1992), p. 63. 105 “. . . our work falls broadly within the broadly defined limits of the contractarian tradition” James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U. of M. Press. 1965, p. 318. James Buchanan Les Limites de la Liberté, Paris: LITEC (1975), p. 41. 98

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Buchanan admits the social contract model is unrealistic.107 Buchanan justifies this contradiction, by arguing that the social contract is ‘just a simplified model’.108 Buchanan recognizes the fact that man is a necessarily social animal109 – in spite of the individualism he advocates. He takes up the atomist model conscious of the alternative organic and holist model.110 Buchanan adopts a clear atomist perspective while also considering the possibility of a holistic model, which he nevertheless rejects. He does not prove his atomism, rather he sees the choice of atomism or holism as an indemonstrable postulate. He proposes to study policy phenomena with an analysis based on an analogy between the market111 and the “public choice”.112 Taxes are simi106 “. . . l’utopie est forcement anarchique” James Buchanan Les Limites de la Liberté, Paris: LITEC (1975), p. 3. 107 “The contractarians have discussed the original formation of government out of the voluntary consent of rational previously “free” men. Their critics seem to have considered the contractarians demolished when they showed that such an original contract was, for all intents and purposes, a purely intellectual construction with little or no basis in reality.”James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 318. 108 “Societies form governments and change governments for a variety of reasons, many of, which remain mysterious and far below the level of objective, scientific analysis. Political institutions, like languages, get changed, almost beyond recognition, by the gradual and largely unconscious modification imposed on them by the movement through time. In this sense political society can be said to develop and to grow organically; and if the purpose of investigation is solely that of explaining such growth, there is perhaps little purpose in inventing the contractual apparataus. James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 318. 109 “La vie sociale permet d’atteindre nos objectifs individuels.”James Buchanan Les Limites de la Liberté, Paris: LITEC (1975), p. 1. 110 James Buchanan, Public Principles of Public Debt. Richard Irwin: Illinois (1958), p. 152. 111 “The analytical models introduced in this book have embodied the central assumption that individual choice behavior in the fiscal process is in some sense analogous to market choice, at least to the extent that the latter may serve as an appropriate benchmark for comparative purposes. This assumption requires some defense, even at the expense of what may appear as a lengthy digression on the ‘pure theory of public goods’. Specifically, it seems necessary to demonstrate that individual choice behavior is amenable to scientific analysis and explanation despite the acknowledged indivisibility of benefits from public goods and services among individuals, and, in consequence, the indivisibility of collective decisions regarding the supply and financing of such goods and services.” James Buchanan, Public Finance in Democratic Process. Chapel Hill: UNC (1967), p. 113. 112 James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 323.

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lar to the purchase price of services and public goods.113 In this perspective, the government is akin to a household: it must develop its own financial policy based solely on its resources.114 If one considers the fact that resources are limited and needs endless – the model of homo economicus – the government faces a dilemma: by asking voters whether to increase spending, the latter will always respond in the affirmative.115 On the other hand, whenever the government asks the voters whether to raise taxes, voters will always adopt a negative response. Buchanan’s position is simply that these two issues of employment and taxation should be considered simultaneously.116 Public choice offers the public a principle of resource allocation117 to avoid otherwise inevitable fiscal illusions118 such as retention at source of income tax.119 Regarding procurement policies, Buchanan proposes that the legislation is tantamount to a property purchased – directly or in the form of donations, contracts, etc. However, this proved to be a rather ambiguous position that indirectly condones corruption – which seems paradoxical. We see here the problem the (supposed) equivalence made between economics and law. If one accepts that pressure groups are making tacit or implied agreements with voting representatives in parliaments, then how to distinguish what is legitimate what is not? Finally, public choice admits that the markets do sometimes fail, including political failure. 113 James Buchanan, Public Finance in Democratic Process. Chapel Hill: UNC (1967), p 88. 114 Id. at 131. 115 James Buchanan, Public Finance in Democratic Process. Chapel Hill: UNC (1967), p. 97. 116 Id. 117 “The alternative to single purpose or dedicated, revenue sources for public services is, of course, general fund financing. In the one case, that of earmarking, the individual “votes for” designated taxes to finance specific public outlay. In the other, general fund financing, he “votes for” the same taxes to finance, not a single service, but a budgetary bundle of several services . . . If the individual can make seperate fiscal choices for each public goods program, which a structure of earmarked taxes conceptually allows him to do, directly or indirectly, he is informe as to the alternatives that he confronts . . . The problem that he faces is clearly less than that, which is present in the comparable decision on a ‘bundle’ of public goods or services” James Buchanan, Public Finance in Democratic Process. Chapel Hill: UNC (1967), pp. 72–73” Earmarking versus general fund financing: Analysis and Effects”. Notre position est que l’affectation des recettes est bien en principe car il aura l’effet de mieux focaliser les questions de depense. 118 James Buchanan, Public Finance in Democratic Process. Chapel Hill: UNC (1967), p. 97. 119 Id. at 139.

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1. Political Failure From the economic analysis of politics, public school finds failures in public institutions analogous to those encountered in private institutions.120 Thus, the inevitable problems of externalities,121 monopolies and transaction costs – resulting from the imperfections122 of information123 – must also be considered under the “political marketplace”.124 Public choice rightly questions whether and how the state can be neutral and if not what that implies for legitimacy of the state. However, the existence of externalities – unlike the Austrian School – is not criticized because externalities also apply to political markets.

120 “One of the most important conclusions of public choice theory is that for any imaginable ‘market failure,’ we can imagine a parallel ‘government failure.’ Thus, market create externalities like pollution, but the democratic process creates externalities like special interest legislation. Markets do not supply public goods, but the democratic process fails to reward public goods like intelligent voting.” Bryan Caplan, The Economics of Non-State Legal Systems (doctoral thesis), available at: http://economics.gmu.edu/bcaplan/thesis3.txt. 121 James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 45. 122 “Le marché connaît des défaillances.” L’école de choix publique admets l’existence des imperfections du marché, mais il affirme que ces mêmes problèmes d’information et coûts de transaction abîme déforme l’action Etatique. Basle, Histoire des pensées économiques, vol. II, “Les Contemporains”. Paris: Sirrey (1988), p. 364. 123 “It is widely recognized that even for day-to-day market choices the individual may not be in command of anything approaching complete knowledge about the alternatives that he faces. There are several reasons for this ignorance. First of all, given the fact that securing information is costly, the optimal degree of investment in search may produce results that fall far short of genuine omniscience. Secondly, choices may be such that uncertainty cannot be eliminated even under maximum investment in information gathering. Thirdly, the individual may operate under an illusion that he is more informed than he actually is; he may be ignorant but not be aware that he is. It becomes difficult, if not wholly impossible, for the external observer of individual choice behavior to make distinctions between these several situations. In any one of them, the rationally motivated behavior of the individual may produce results that are not desired or intended.” James Buchanan, Public Finance in Democratic Process. Chapel Hill: UNC (1967), p. 182. 124 “Imperfect Information: If markets have imperfect information (as in the Akerloff lemons model), so do goverments (for example, voters are usually ignorant about politicians’ voting records and sources of funding, as well as the likely consequences of a given piece of legislation).” Birgir Runalfsson Solavson, Doctoral Thesis, http://web.archive.org/web/20030608044300/www.hi.is/~bthru/contents.html.

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2. Bureaucracy Public choice argues that the government’s main customers are in fact lobbyists125 and bureaucracy who seek after their own interests.126 Thus, public choice is consistent with supply side theory. Although the School of Vienna and public choice are both opposed to state intervention – and support its privatisation – their presuppositions are different. 3. Public Bads The School of public choice affirms the existence of externalities and imperfect trade because of transaction costs127 and because money influences the political processes.128 Public choice affirms the existence of externalities and that trade is imperfect due to transaction costs.129 Indeed, public goods do exist, according to public choice, and they are defined by the characteristic of their collective benefit130 (impossibility to exclude). Thus, public goods such as the administration of justice, defence, coining currency and minting money are legitimate functions of govern125 James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 283.”For example, special interest groups lobby for legislation that injures all tax-payers slightly, even though the aggregate damage is high.” Birgir Runalfsson Solavson, Doctoral Thesis, http://web.archive.org/web/2003 0608044300/www.hi.is/~bthru/contents.html. 126 Source: A. Silem, Encyclopédie Économique et de la Gestion. Paris: Hachette (1991), p. 372. 127 “Information costs make it difficult for voters to know, which politicians are really acting in their interest, and the public-good problem means that it is rarely in the interest of voters to pay the costs and buy the information necessary to recognize and support ‘good’ politicians.” David Friedman “The Political Marketplace”, Public Choice: Economic Analysis of the Political Market, Sec. V, Ch. 19. 128 “As mentioned earlier, local public goods could be supplied by housing developers. Are the remaining public goods that could not be privately supplied so valuable that they outweigh the abuse of legislative power? The answer is far from clear. The fourth complaint was competitive enforcement would would make voting atrophy or disappear. Wealth would be the only measure of social value. Public choice theory undermines this complaint by showing that campaign contributions and wealth strongly influence democratic politics. David Friedman “The Political Marketplace”, Public Choice: Economic Analysis of the Political Market, Sec. V, Ch. 19. 129 Basle, Histoire des pensées économiques, vol. II, “Les Contemporains”. Paris: Sirrey (1988), p. 366. 130 James Buchanan The Public Finances, Homewood Illinois: Richard Irwin (1960), p. 539.

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ment.131 That is why we believe – despite his criticism of the state – that Buchanan does not reject ultimately shape the state itself – unlike the anarcho-capitalists. 4. The Political Market If the political market, populated by the homo politico-economicus,132 is a market like any other, with its own law of supply and demand133 the instrument to bring the supply and demand curves into equilibrium is money and the vote.134 Thus the vote is one of the key for comprehending economic cycles. Given the political influence on the economy the school of public choice asks if political influence is neutral. Public choice admits the existence of market failures.135 At the same time, it asks whether the political market also has failures136 and answers in the affirmative.

II. Consequences of the Analysis 1. Balanced Budget Given the trend of electorates to want public services without paying corresponding taxes there is a definite tendency towards debt financing by government.137 However, budgetary imbalance encourages inflation; ba131

Id. at 19–21. James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 23. 133 Natural sciences are nomothetic (exact); human sciences are probabilistic (dialectical). 134 “The Market for Legislation: Consider, then, the market for legislation. Individuals perceive that they will be benefited or harmed by various laws. They offer payments to politicians for supporting some laws and opposing others. The payments may take the form of promises to vote for the politician, of cash payments tobe used to finance future election campaigns, or of (concealed) contributions to the politician’s income. The politician is seeking to maximize his long-run income (plus nonpecuniary benefits, one of, which maybe ‘national welfare’), subject to the constraint that he can only sell legislation for as long as he can keep getting elected.” David Friedman, Chapter 19 “The Political Marketplace”, Public Choice: Economic Analysis of the Political Market Sec. V. 135 Basle, L’Histoire des Pensées Economiques. Vol. II: Les Contemporains. Paris, Sirrey (1988), p. 364. 136 Id. at. 365. 137 James Buchanan, The Public Finances, Homewood Illinois: Richard Irzin (1960), p. 121. 132

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lanced budgets discourage inflation.138 A balanced budget allows stability for economic business planning.139 This is the tension in budget policy, which should have implications for prudent legal interpretations of tax and budgetary laws. Ultimately, public school choice advocates fiscal responsibility140 – one of the pillars of the new economic orthodoxy. Inflation in effect operates as a hidden tax pushing taxpayers upward into higher tax brackets.141 Thus balanced budgets and zero inflation are desirable economic goals. 2. Privatization of Legal Functions The school of public choice concludes from applying economic methods to political phenomena that that efficiency goals are general better served by a privatization of public functions and budget transparency. Their logic is: (1) States are at least as flawed as market as an allocation mechanisms. (2) Public goods do not exist, or if they do, non-public goods are at least as well distributed by markets as by the state. Since public goods are rare to non-existent and since states are not superior at allocation than markets then why should one rely on the state as an allocation mechanism?142 Thus, privatization and non-intervention is the 138

Id. at.88. Id. at.122. 140 Id. at.139. 141 Id. at. 359. 142 “Almost all scholars regard the supply of law as a pure public good that simply must be supplied by the government. Yet there are many present-day and historical counterexamples: arbitration, the law merchant, trade associations, ostracism and boycott, security guard companies, and so on. Puzzled by these counter-examples, scholars such as Posner, Landes, Becker, and Stigler investigated the theory behind the private supply of law, distinguishing three aspects of law: dispute resolution, rule formation, and enforcement. This thesis considered non-state provision of each of these conceptual legal branches. Corresponding to each branch is a theory that describes how the system would work in the absence of market failures; a description of the most obvious market failures from, which each branch suffers; and a discussion of the severity of the failures. The overall conclusion of this paper is that, while each branch – dispute resolution, rule formation, and enforcement – has flaws, the problems are rarely overwhelming. Scholars are usually too quick to dismiss them on the grounds of market failure, without first considering the magnitude of the market failure, or whether the government could realistically do any better. Most scholars find much to praise and little to criticize in private dispute resolution. It reduces transaction costs, gives parties greater flexibility, and helps ease the case burden of the public courts. It would not be difficult to open up a wide range of 139

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implicit conclusion from public choice theory. This is not in contradiction to libertarian anti-statist policies.

III. Critiques of the School of Public Choice Within its own terms, public choice is coherent. However, I critique the school public choice on three points:143 (1) I reject utilitarianism because utility, divorced from money, is not objectively able to be measured. (2) I question certain presuppositions of neoclassical theory taken up by public choice. (3) The theory of public choice is anti-democratic.144 (1) Public choice is a utilitarian theory. However, the Vienna school is correct on utilitarianism:145 The incommensurability of utilities – because of their subjectivity – indicates that utilitarian analysis is subjective and invalid scientifically. Utility cannot be the foundation of a scientific demonstration – because it cannot be measured nor verified. (2) The theory of public choice presupposes – like all neoclassical thought – the existence of a homo economicus.146 This model is often criticized disputes to private resolution. As the public courts grow more clogged, we can expect alternative dispute resolution to expand. If the public courts give arbitrators sufficient autonomy and enforce their decisions as a matter of policy, the expansion might startle us. In contrast, there is considerable skepticism about private rule formation. Posner and Landes point out that the production of precedents is a public good. Since a patent system for precedents is not feasible (parties could use precedents without citing them, as Posner suggests), it is difficult to see where the incentive to supply . . .” Birgir Runalfsson Solavson, Doctoral Thesis. 143 “Les Marchés n’excluent pas l’action des gouvernements”, Robert Rubin (Ancien ministre des finances américain), Courrier Internationale, X/99, p. 39. “Les gouvernements ont encore un rôle, certes différent de celui du passé, mais capital. Ils doivent assurer les fonctions que les marchés, de par leurs nature, ne veulent ou ne peuvent remplir de manière optimale, et ce sont précisément ces domaines qui fournissent les bases et le cadre de l’économie de marché.” Id. 144 The same criticism can be made of Hayek. In La Route de la Servitude, Paris: PUF (1985), Hayek argues that democracy is an inferior principle to freedom (p. 57) because democracy is the means to the end of freedom (p. 56) and because democracy is fallible (p. 57). For Hayek the general interest is ambiguous (p. 47) and can be manipulated. 145 James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 45. 146 Sylvain Allemand, Qui est l’homo oeconomicus? La documentation Franc ¸ aise, 50 Ans de Problèmes Economiques, 22–29/IV/1998, p. 122.

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as unrealistic147 simplification.148 Buchanan even acknowledges that it is reductionist.149 (3) The theory of public choice is anti-democratic.150 Questioning democracy is not in itself a “heresy”. However, implicit in public choice is the uncomfortable idea that democracy is only an illusion, which implies that the political system is finally determined by wealthy and for the wealthy. Thus, public choice can be criticized as merely a defender of oligarchic plutocracy. At this level, at least, it loses its ability to legitimacy in a system based – at least in theory – on the general consent and democracy.

G. Conclusions I. Valid Applications of Economic Methods in Law – “Weak” Law and Economics 1. Balancing Tests Because the ideas of Smith151 and Ricardo152 are, with qualifications, basically accurate, law and economics as a special theory to resolve parti147

Id. at. 123. “Public choice theory is simply economics applied to a market with peculiar property rights. Just as in the economic analysis of an ordinary market, individuals are assumed to pursue their separate objectives rationally; just as in that analysis, one may first make and later drop simplifying assumptions such as perfect information or zero transaction costs.” David Friedman “The Political Marketplace”, Public Choice: Economic Analysis of the Political Market Sec. V, Ch. 19. 149 James Buchanan and Gordon Tullock, The Calculus of Consent. Ann Arbor: U of M Press. 1965, p. 17. 150 “One might also note that intelligent voting is a pure public good (society benefits if I inform myself before I vote, but I pay all of the cost of informing myself), and is therefore undersupplied under democracy. With these facts in mind, one might doubt that democracy is as wonderful as usually believed, especially if non-political alternatives could work. Complaints five and six, which doubt that market enforcement could ever win the loyalty and trust of most people, are more difficult to answer. Even in areas where markets are perfectly workable, voters routinely prefer government ownership and control. They have more confidence in the legitimacy of the government than they do in the legitimacy of the market. Perhaps imperfectinformation is the problem.” Birgir Runalfsson Solavson, Doctoral Thesis, http://www. hag.hi.is/~bthru/contents.html ou http://www.hag.hi.is/~bthru/kafli5.htm. 151 People are self interested, but by achieving their own self interest the best collective interest is obtained thereby. WN: B.I, Ch. 2, Of the Principle which gives Occasion to the Division of Labour in paragraph I.2.2. 148

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cular cases can well be valid. Economic analysis can be used to ground otherwise vague and manipulable balancing tests via market values back into the real world. The monetization of competing and conflicting interests of plaintiffs, defendants and third parties to a legal conflict allows vague and manipulable balancing tests to be coerced into objective forms, provided monetary valuation is possible – a saleable good with adequate buyers and sellers to constitute a market is a necessary precondition to accurate market valuation. 2. Cost-benefit Analysis The economic valuation of costs and benefits is another way economic analysis can be used to determine the weight of competing interests. Hand’s test is the most famous example of an economic argument used to determine a real world legal problem – if the cost to prevent the damage is greater than the damage that would result then, according to Hand’s test, there is no duty at tort. Cost benefit analyses are a defensible method brought to legal decision making from economics and is certainly more objective than the indeterminable manipulations of legal realism or post-modernism. The use of economic analytical methods such as market valuation of competing interests, cost benefit analysis and even actuarial tables, present value of future income stream calculations as well as the law of supply and demand are valid ways to help decide legal cases because, though specific, they can be applied in context of other values, which escape market valuation, often due to market failure (no buyers, or sellers, imperfect information, transaction costs, disequilibria of supply and demand etc.). I call the limited and specific use of economic methods weak law and economics. Weak law and economics, the limited use of certain methods of economic analysis to help solve legal disputes is a perfectly defensible method of resolving at least some legal disputes. Economic methods of “weak” law and economics such as those described have a place in legal decision making. I now however wish to explore and expose the stronger claims of law and economics as a general theory of law, a general method for resolving any legal dispute – those propositions, which I call strong law and economics are simply untenable.

152 Trade creates interdependence and prosperity and thus ensures peace. Solomon W. Polachek, Carlos Seiglie, Trade, Peace and Democracy: An Analysis of Dyadic Dispute, Institute for the Study of Labor Discussion Paper No. 2170 (2006).

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II. Invalid Claims: “Strong” Law and Economics Economic theories of law arose in the late 20th century to try to deal with the problems presented by legal realism – a general indeterminacy arising from a) moral relativism b) linguistic prescriptivism c) epistemological relativism d) a general crises in the economy, namely two depressions and two attendant world wars. Of course, the economic facts, which created a crisis of confidence in legal determinicity are well known: but strong law and economics is not arguing that economic forces are the material base upon, which the juridical superstructure is erected – that would be Marxism – and, moreover, a perfectly defensible position. Rather, strong law and economics argues that laws mirror the market; that all legal conflicts resolve into economic conflicts – and the position that law and economics provides a general method for resolution of all legal disputes is clearly indefensible. Law and economics grew out of the mixed bag of economic thought sketched above. On the one hand Smith and Ricardo, who are well thought out, are the basis for the unrealistic claims of Pareto and Coase. The result of this mish-mash is a theory unable to maintain its totalizing claims. Law and economics theorists argue that law is developed as a function of its tendency to maximize social wealth and that legal mechanisms parallel economic mechanisms. The “strict” or “strong” view of L&E argues that law reaches economically efficient outcomes and essentially mirrors results that would have been reached had laws and outcomes been negotiated on an open market.153 The weaker version of L&E in contrast only looks to economics for methods of analyzing the law in order to inform the law as to what decision would be best. As a description, economic theory of law argues that all rights are de facto, and should be, de jure, fungible because they believe that the competition to buy and sell rights leads to wealth maximisation. Law and economics relies on untenable presumptions about the nature of man, the market and information, which are exposed and refuted below. Economic analysis of law, as a general theory, is severely flawed due in part to a contradiction at the ontological level between holism on the one 153 Richard A. Posner, Economic Analysis of Law 491–99 (3d ed. 1986) (common law operates like a market; common law maximizes social wealth); William M. Landes & Richard A. Posner, A Positive Economic Analysis of Products Liability, 14 J. Legal Stud. 535, 535 (1985) (common law fosters efficient markets); Richard A. Posner, A Reply to Some Recent Criticisms of Efficiency Theory of the Common Law, 9 Hofstra L. Rev. 775 (1981) (common law rightly seeks wealth maximization). I do not go quite as far as Posner. The state exists to enable us to live and to live well. Wealth is a means to this end but is not an end in itself.

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hand and atomism on the other. Economic analysis of law tends to be atomistic not holistic. Holistic theory argues that entities should be studied in toto. A study that is not starting by encompassing the individual in their entire social context is inevitably doomed to failure; essentially, for holists, the whole is greater than the sum of its parts. According to the holistic perspective, the collective forms its members who can then flourish within the collectivity and at least survive outside the community. Strong L&E is demonstrably false because it is based on erroneous theories about information and markets. Thus, legal processes cannot, do not, and should not mirror outcomes on an open market. You say “unregulated open market” and I respond: 1929. That is not the only example of market failure, just the most famous one. 1. Homo Economicus – An Unrealistic Model of Human Behaviour in the Real World Law and economics, at least in its strong version, assumes the existence of a homo economicus. Homo economicus is a rational profit maximiser.154 That assumption is questionable.155 Economic actors are often irrational.156 Maximization of well being is highly individual157 and may be generally beyond (and at times surely is beyond) objective monetary evaluation.158 The better theorists admit the homo economicus is unrealistic and not a 154 Andrei Shleifer, Inefficient Markets: An Introduction to Behavioral Finance 4 (2000) (noting that “market efficiency prevails because of competitive selection.”). According to Milton Friedman, irrational investors are ultimately driven out of markets by natural selection – they lose their shirts or adapt and become rational investors. 155 Maurice Baslé et al., Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988).p. 142. 156 “En fait, la rationalité tire non seulement sa force, mais sa signification même du contexte social dans lequel elle est ancrée. Elle est d’autant plus plausible que les conditions sont idéales. En dehors de telles conditions, les hypothèses de rationalité sont mises à rude épreuve et peuvent même devenir contradictoires. Elles supposent en tout cas une aptitude au traitement de l’information qui dépasse de beaucoup le domaine du possible, et que l’on peut difficilement justifier comme l’aboutissement de processus d’apprentissage et d’adaptation. . . . Non seulement il est possible de concevoir des modèles complets de l’économie d’hypothèses autres que la rationalité, mais, en fait, ma quasi totalité des théories pragmatiques de la macroéconomie est en partie fondée la sorte.” Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988), p. 143. 157 That is, subjective utility may diverge from objective monetary value. 158 Herbert Simon “attaque aux fondements mêmes de la microéconomie en définissant un autre type de rationalité pour les agents économiques”. Individuals are guided by personal preferences, and informations is neither free nor perfectly avail-

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reflection of reality.159 Profit maximization is only one of many possible goals of an economic actor and maximization of well being, utility or even income may well be incapable of market evaluation. Finally, just as there may be no buyers and sellers to constitute a market, the relevant goods may not be divisible and fungible. Market failure happens. 2. Presumptions about Markets – And Failure to Account for Market Failure Neoclassical economic thought presupposes that goods are able to be evaluated in monetary terms and that they are fungible. To function, markets also require willing buyers and willing sellers. Without an adequate number of buyers and sellers trading in fungible goods markets do not exist. And without markets no economic solution is possible. Wherever markets fail law and economics would also fail, which alone should explain what law and economic is no realistic contender for the role of total unifying theory of law and justice. Not all goods are fungible. Certain goods cannot in fact be priced even by a market economy. Other “goods” (“bads” in fact) should not be marketable and other goods are inalienable. Markets do not always exist and even when they do sometimes markets fail to allocate goods efficiently – gluts, shortages and depressions are part of the economy. In sum, strong law and economics is descriptively incorrect. Courts are not mini-markets mimicking or mirroring the marketplace nor should they be both due to the methodological limits of economic analysis and due to the non-economic character of much in the law (e. g., inalienable rights, interpretation of texts). Because of the weaknesses in economic analysis of the law, which inevitably arise from any simplified descriptive model, strong L&E is not very useful as a tool to describe legal reality and is quite useless as a prescriptive model of how legal reality ought to be. Yet, a weak form of L&E, borrowing some methods of classical economics, can be a useful tool for legal analysis. For example, the cost-benefit analysis in law is a result of weak L&E.

able. Thus rationality of economic actors is limited. Maurice Baslé et alia, Histoire des pensées économiques – les contemporains. Paris: Editions Sirrey (1988). p. 146. 159 Friedrich von Hayek, LSE Essays on Cost “Economics and Knowledge”, James Buchanan & G. Thirlby eds. New York: NYU Press (1981), p. 44. Hayek criticizes modelling the economy as an idealized fully quantifiable finally objectifiable thing.

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3. Information Theory For law and economics, money is simply a quantum of information – monetary flows reflect information flows (Hayek). This is one of the contributions of L&E to social sciences. Other aspects of L&E information theory are however problematic. Strong L&E embraces the pernicious and inaccurate view that information flow is perfect (i. e. instantaneous and complete) and that there are no transaction costs, such as lawyer’s fees, brokers commissions, translation fees, etc.160 Likewise neoclassical economics argues that information is perfect with no transaction costs – that is simply not the case.(32) The Chicago school’s efficient capital market hypothesis is built on this of this erroneous theory of information (perfect information, no transaction costs) Though information is almost instantly available at very low costs, finding and using that information is neither instant, nor costless, nor evenly distributed. Further, the Chicago theory ignores the existence of false and misleading information, as well as the inevitability of transaction costs such as legal formalities and translations. The Chicago theory also ignores market entry costs. Although thinly capitalized start up companies are normal in the English speaking world, this is not the case in civil law jurisdictions. Moreover, even if a thinly capitalized company can enter the market with low costs, it is still limited by material capital requirements for production, such as machinery, vehicles, and land. So while information costs are dropping all the time, entry costs and transaction costs have not been eliminated. Thus capital markets are not perfectly efficient. The ECMH is in fact only partially correct because some market imperfections are inevitable due to the inevitability of cyclicity and unemployment and is just one example of how law and economics fails as a theory either to describe what reality is or to prescribe what it should be. In sum, information flow is not perfect. Transaction costs are inevitable. Thus strong law and economics cannot hold.

160 See Theresa A. Gabaldon, Assumptions about Relationships Reflected in the Federal Laws, 17 Wis. Women’s L.J. 215 (2002). She critiques the model not because it is objectively unrealistic, but because it stereotypes the roles drawn from it – the false image of professional stock traders as cold and greedy, preying on uninformed women such as widows. That is, the insider trading prohibition is founded on some sexist assumptions and Martha Stewart illustrates what happens to people who go against the grain and upset social bias.

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III. Why Law and Economics? Economic analysis of law rose to prominence in the common law in part because of the common law’s tendency to pragmatism and tendency to monetise.161 Economic analysis was one response to indeterminicity in legal realism’s proposed solution to formalism, multipronged interest balancing tests. Balancing tests are flexible, so flexible as to be indeterminate. Flexibility permits the court to decide cases on their individual merits but can also be criticized as capricious, unprincipled, and prone to abuse-a critique, which can be levelled at balancing tests generally. However, economic analyses are sometimes only pseudo-empirical because it is at times difficult or even impossible to objectively evaluate worth. Economic analyses of law can be superficial and are in all events no judicial panacea. Some values defy market valuation (no market, either due to lack of buyers or sellers), other values are not fungible (fundamental human rights are inalienable) and several of the presumptions of economic analysis are questionable when not outright wrong. However, economic analyses at least appear objective and this explains why they rose to prominence to meet the problem of legal indeterminicity brought about by moral relativism.

IV. A Reductio to Refute Strong Law and Economics The limits of economic reasoning about the law can be shown by a reductio: If there were no personal sphere of existence apart from the economic than slavery162 and contract killing would be permitted as leading to the efficient use of slaves and the useful elimination of uneconomic actors. Similarly: if the act of executing an innocent person would increase collec161 See, e. g. Landes, Posner, The Economic Structure of Tort Law, Cambridge: Harvard Univ. Press (1987). 162 “Suppose A, perhaps to provide money for his family (bur the reason is unimportant), sells himself into slavery to B; or C borrows money from D with a penalty clause that in the event of default D can break C’s knees. From a wealth-maximization standpoint there is no economic basis for refusing to enforce either contract unless some element of fraud or duress is present. Nor would the economist think either contract so irrational as to create an irrebutable presumption that it was procured by fraud or duress or is vitiated by insanity or other incapacity. If some white person categorically refuses to associate with blacks because prior experience with some black people has caused him to form an unfavorable impression of’ them in general, and the costs to him of individualized consideration of blacks exceed the expected benefits, there is no basis in economic theory for criticizing his conduct . . . it is wealth maximizing.” Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977), pp. 86– 87.

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tive wealth, Posner’s logic would, at least on the face of things, affirm the death penalty for the innocent person. In sum, Posner’s thinking is reductionist.163 He argues that all legal principles can and/or should be able to be derived from an economic analysis. This over-determinism deserves to be criticized164 Hopefully, this refutation is adequate.165

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Lloyd’s Introduction to Jurisprudence, p. 431. David Friedman, “Anarchy and Efficient Law” in For and Against the State, John Sanders and Jan Narveson eds. Copyright 1996 by Rowman and Littlefied Publishers, Inc. La critique de Posner par Friedman se trouve dans l’annexe, ou bien à: Friedman (Price Theory), Chapter15, Posner (1992), pp. 13–16.” 165 “In this essay I consider and reject a political theory about law often called the economic analaysis of law . . . The economic analysis of law has a descriptive and a normative limb. It argues that common law judges, at least, have on the whole decided hard cases to maximize social wealth and that they ough to decide cases in that way . . . Wealth maximisation, as defined, is achieved when goods and other resources are in the hands of those who value them most, and someone values a good only if he is both willing and able to pay more in money” Ronald Dworkin, “Is Wealth a Value” in Lloyd’s Introduction to Jurisprudence, 517. 164

Chapter 9

Kelsen We have seen how left legal theory in the U.S. failed, and was replaced by a radical right theory of law as economics. What about Europe? In Europe, rather than an ideological debate, we observe detached scientific neutrality which really cannot bring any solution to the basic normative conflicts in the U.S. In this chapter, I examine Kelsen’s contribution to legal theory, and unfortunately must conclude that even if Kelsen does not contribute to the problems of legal uncertainty and the justification of judicial power, he also does not contribute to their solution. Similarly to Dworkin, his basic terminology and assumptions are gravely flawed. Kelsen proposes a mix of moral relativism (that values are subjective) with the idea of absolute truths. He is thus relativist as far as moral values are concerned, but cognitivist as to epistemological truths. The idea of absolute objective truth seems inconsistent with the idea of the (supposed) subjectivity of moral choices,1 and is certainly awkward. This basic inconsistency is at the base of other errors in the work of Kelsen. It is the ultimate source of a certain confusion and incoherence in his work which renders it useless as a tool to understand or resolve the conflicts in legal theory occurring in the United States. Kelsen’s inconsistency deforms his work and condemns it to being powerless. In addition to the essential internal contradiction of a relativist axiology and objectivist epistemology, Kelsen’s theory is self-contradictory because his basic term of analysis the “norm” is polysemic and Kelsen uses that polysemicity to equivocate at various places. Polysemicity and equivocation force Kelsen to multiply analytical terms beyond those strictly needed to explain the phenomena – Kelsen violates Occam’s principle of parsimony. Kelsen’s terminological proliferation only increases the confusion, which was the consequence of the polysemic use of the term norm. Kelsen’s ambiguity is also manifested in the fact that at some times he characterises the state as having a monolithic and unitary will, while at other times he admits the state is fragmented and has various conflicting 1 A reductio shows the contradiction: the choice to value truth and to characterize it as objective and absolute can also be described as a subjective value choice.

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and competing priorities. Moreover, Kelsen often begs questions, presenting debatable positions as axioms or proofs therefrom without in fact defending or even properly defining his presuppositions.

A. Normative Inference For Kelsen, the law is a matter of willpower and thus one cannot infer between norms. Even on a quick first view his position presents problems. Historically, the law is defined as being the product of reason and the enforcement of morality. In contrast, for Kelsen, law is merely a product of will. The two positions, the classical view and Kelsen’s, are contradictory; either one, or both, are false. They cannot be simultaneously true. I regard the former view as fair and the latter view the root of caprice.

I. Rejection of Normative Inference At first glance it might seem that the possibility to infer between norms would be central to Kelsen’s thesis. His basic norm must be the source of other general and individual norms in Kelsen’s unified hierarchical view of law. Since the basic norm, for Kelsen, is the source of all other norms, one would imagine it would be possible to somehow infer other norms from the basic norm either directly or indirectly, say by using inductive or deductive logic. According to Kelsen, in a static normative system: “[n]orms are immediately evident because they can be derived from a specific basic norm, in the same way as from the general one deduces the particular”.2 By way of contrast, in a dynamic system of norms, “The diverse norms of the system cannot be derived from the basic norm by mental operation. The basic norm only establishes a certain authority, which can in turn enable other authorities to create norms. The norms of a dynamic system must be created by acts of will of individuals authorized to create norms by virtue of a superior norm. This authorization is equivalent to a delegation of power.”3 For Kelsen, law is a dynamic system of norms. The derivation of norms in a dynamic system finds its validity in its conformity to higher norms right up to the basic norm.4 The reasoning Kelsen uses to deny the application of normative inference between norms is as follows: Norms, which are acts of will, have as such 2 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant (1997), p. 166. 3 Id., pp. 166–167. 4 Id., p. 167.

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no truth value.5 They are neither true nor false.6 Logic only concerns itself with values, which can be determined to be either true or false.7 Thus, logic does not apply to the determination of the validity of norms.8 Nevertheless, according to Kelsen, one can make an analogy between imputation9 (which concerns the consequences of acts of will)10 and causality11 (which concerns things)12; this in turn permits applying principles of logic indirectly to legal norms.13 On the other hand, for Kelsen, one cannot make an ana5

“. . . les principes logiques, et en particulier la principe de non-contradiction sont applicables à des assertions, lesquelles peuvent être vraies ou fausses; et une contradiction logique entre deux assertions consiste en ce qu’une seul d’entre elles peut être vraie, ou la première ou la seconde; et si l’une d’entre elles est vraie, l’autre doit nécessairement être fausse [ici Kelsen fait l’erreur Aristotélicienne d’une présomption de décidabilité binaire entre ou vérité ou fausseté (1 0), et ne considère pas la possibilité, d’aborde qu’une proposition peut être indécidable, et ensuite que les seul valeurs possible sont vérité et fausseté]. Mais une norme n’est ni vraie ni fausse, une norme est valable ou non-valable. Par contre, ce qui peut être vrai ou faux, ce sont les assertions qui décrivent un ordre normatif.” Kelsen, Hans, Théorie Pur du Droit, p. 274. 6 Hans Kelsen, General Theory of Norms, Clarendon Press (1991), at 180. 7 Hans Kelsen, Théorie Générale du Droit et de l’Etat. Paris: Bruylant, LGDJ (1997), p. 192. 8 Hans Kelsen, Théorie Générale du Droit et de l’Etat. Paris: Bruylant, LGDJ (1997), p. xliii. 9 Hans Kelsen, General Theory of Norms, Clarendon Press (1991); Théorie Pur du Droit, p. 105. 10 Hans Kelsen, General Theory of Norms, Oxford: Clarendon Press (1991), p. 233. 11 Hans Kelsen, Théorie Générale du Droit et de l’Etat. Paris: Bruylant: LGDJ (1997), p. 1997. 12 “Cependant, si l’on analyse les assertions que les hommes énnoncent rélativement à la conduite humaine, il apparaît que nous unissons des actes de conduite humaine les uns aux autres, et avec d’autres faits, non seulement d’après le principe de causalité, c’est à dire selon la relation de cause à effet mais également d’après un autre principe, foncièrement différent de celui de la causalité . . . Dans la description d’un ordre normatif de la conduit réciproque d’êtres humains vient à application cet autre principe d’ordre différent du principe de causalité, que l’on peut dénommer imputation (Zurechnung). Une analyse de la pensée juridique permet de montrer qu’effectivement, dans les propositions juridiques, ces propositions par lesquelles la science du droit décrit son objet, le droit (que ce soit un droit national ou le droit international) – un principe est appliqué, qui, tout en offrant sans doute une analogie avec le principe de causalité, s’en distingue néanmoins de fac¸on très caractéristique. L’analogie consiste en ceci que le principe en question joue dans les propositions juridiques un rôle tout à fait semblable à celui que le principe de causalité joue dans les lois naturelles.” Hans Kelsen, Théorie Pur du Droit, p. 105. 13 “Si les normes juridiques ne peuvent être ni vraies ni fausses, parce qu’elles constituent des prescriptions . . . la question se pose de savoir comment il est possible d’appliquer aux rapports entre normes juridiques (ainsi que l’a fait depuis tou-

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logy between the validity of a norm and the validity of a logical proposition14 and those two positions seem contradictory. If the syllogistic form15 can be applied to norms by analogy16 then one must distinguish between theoretical and normative syllogisms. Kelsen does jours la théorie pure du droit) des principes logiques, en particulier la principe de non-contradiction, et les règles du raissonement; selon les idées traditionnelles en effet, ces principes ne sont applicables qu’à des assertions, qui peuvent être soit vraies, soit fausses. La réponse à cette question est la suivante; les principes logiques peuvent être appliqueés aux normes juridiques, sinon directement, du moins indirectement, en tant qu’ils sont applicables aux propositions qui peuvent être vraies ou fausses. Deux normes juridiques se contredisent; et une norme peut être dédute d’une autre norme juridique, si les propositions juridiques qui les décrivent peuvent entrer dans le cadre d’un syllogisme logique.” Hans Kelsen, Théorie Pur du Droit, p. 102. [Hereafter RR] 14 “Si l’on croit que l’on peut appliquer aux normes les principes de logiques de non-contradiction et d’inférence, bien que ceux-ci ne soient ni vrais ni faux, ce ne peut donc être à cause de leur relation avec la vérité, mais à cause de leur relation avec une propriété particulière d’une norme. Il doit nécessairement exister des normes qui ont cette propriété spécifique et des normes qui ne l’ont pas. Et cette propriété des normes devrait nécessairement être analogue à la vérité des énoncés. . . . De même que la verité d’un énoncé peut entraîner logiquement la vérité d’un autre énoncé, de même la propriété, analogue à la vérité d’une norme pourrait entraîner logiquement cette propriété d’une autre norme. Les diverse tentatives visant à prouver l’applicabilité des principes logiques aux normes se sont engagées – comme on l’a montré précédemment – dans deux directions. La première établit une analogie entre la validité de la norme et la vérité d’un énoncé, et la second établit une analogie entre l’observance de la norme et la vérité d’un énoncé. Pour ce qui concerne la première direction, on a déjà constaté ici qu’une analogie entre la vérité d’un énoncé et la validité d’une norme n’existe pas parce que la validité ou la non-validité d’une norme n’est pas une propriété de la norme comme la vérité ou la fausseté est une propriété d’un énoncé. La validité d’une norme est son existance idéelle spécifique, et une norme qui n’est pas valide ou non valide n’est pas une norme existante, tandis qu’une énoncé faux est un énoncé existant.” Hans Kelsen, Théorie Générale des Normes, Paris: PUF (1996), pp. 287–288. 15 “In this model the applicable rule of law is the major premise of a given piece of legal reasoning, the relevant facts of the case constitute the minor premise, and the conclusion (the decision that the judge is to make) is arrived at by a straightforward and airtight piece of deductive reasoning.” Theodore Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 2. 16 “La fondation de la validité d’une norme positive, c’est à dire posée par un acte de volonté et qui prescrit une certain conduite, a lieu par une procédure syllogistique. Dans ce syllogisme, la majeure est une norme considérée comme objectivement valable, ou plus exactement: l’énonciation l’assertion d’une telle norme, aux termes de laquelle on doit obéir aux commandements d’une certaine personne, c’est à dire se conduire conformement à la signification subjective de ces actes de commandement; la mineure est l’énoncé du fait que cette personne a prescrit que l’on doit se conduire de telle ou telle fac¸on; et la conclusion: l’assertion de la validité de la norme que l’on doit se conduire de la fac¸on ainsi déterminée.” Hans Kel-

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in fact make that distinction.17 For Kelsen, premises of a normative syllogism do not have the quality of truth, but do have the quality of validity.18 The theoretical syllogism, in contrast, consists of premises and a conclusion, which can be true or false.19 According to Kelsen, logic does not apply except indirectly to legal norms. Here Kelsen follows the thought of Hume on the relationship between reason and passions. According to Hume, logic is a tool of passion20 – a view, which is in opposition to that of Aristotle, who believed man was a rational talking animal in mastery of his passions via a rational principle. For Aristotle at least, one of the functions of reason is mastery of passions. Kelsen’s view on the subordination of reason to passion (will), in combination with Kelsen’s anti-cognitivist position, denies the possibility of applying logic to norms. For Kelsen, the norm is an act of will, not reason. Thus, for Kelsen, logic does not apply to norms. In effect, acts of will, being neither true or false cannot (according to Kelsen) be analyzed by logic. This is because Kelsen is echoing Hume who ignores the distinction between theoretical rationality and practical reasoning. Aristotle would however disagree, arguing that the acts of will are subject not to theoretical rationality but to practical reasoning (phronesis). Kelsen, following Hume, does not distinguish practical reasoning from theoretical rationality and sees logic instead as unitary. Aristotle has the better view because his view corresponds more closely to reality and creates a better world to live in. Kelsen’s refusal of logic as governing the relationship among laws raises these questions: which principles, if any, govern the relationship among norms? Kelsen gives us two answers. First, logic does not directly apply to norms (and on this point his view changed from RR1, where he did apply logic to the relations among norms21 and ATN where he rejected logic as sen, Théorie Pur du Droit, p. 268. Mais en révanche: ‘il est impossible de fonder la validité de cette norme [la norme fondamentale] par un procédé syllogistique.” Hans Kelsen, Théorie Pur du Droit, 269. 17 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), p. 231. 18 Id., p. 233. 19 Id., pp. 228–229. 20 Hans Kelsen, General Theory of Norms, Oxford: Clarendon (1991), Note 65 & 69, pp. 312 et 316. 21 “La fondation de la validité d’une norme positive, c’est à dire posée par un acte de volonté et qui prescrit une certaine conduite, a lieu par une procédure syllogistique. Dans ce syllogisme, la majeure est une norme considérée comme objectivement valable, ou plus exactement: l’énonciation, l’assertion d’une telle norme, aux termes de laquelle on doit obéir aux commandements d’une certaine personne,

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governing the relationships among norms22). However, while logic does not govern the relationships among norms it can be applied to propositions about norms.23 Logic, for Kelsen, cannot apply to the language of law because he is a volontarist – law, for Kelsen, is only a product of will. Logic can however apply to the meta-language of the science of law according to Kelsen. The second limitation on the refusal of logic’s applicability to the relationships among norms is that norms are linked to each other via chains of authority.24 Thus, a contradiction between inferior norms with respect to a superior norm is, for Kelsen, impossible25, not because of the logical postulate of non-contradiction,26 but because of the fact that such a contradicc’est à dire se conduire conformement à la signification subjective de ces actes de commandement; la mineure est l’énoncé du fait que cette personne a proscrit que l’on doit se conduire de telle ou tell fac¸on; et la conclusion: l’assertion de la validité de la norme que l’on doit se conduire de la fac¸on ainsi déterminée . . . La norme que la majeure pose – proposition qui procure le fondement – comme une norme objectivement valable est une norme fondamentale si sa validité objective ne peut plus faire l’objet d’une question. Elle ne peut plus faire l’objet d’une question si elle ne peut plus être fondée par le moyen d’un processus syllogistique. Et elle ne peut plus être fondée de cette fac¸on si l’assertion du fait que cette norme a été posée par l’acte de volonté d’une personne ne peut plus constituer la mineure d’un syllogisme.” Hans Kelsen, Théorie Pure du Droit, p. 268. 22 Comme on l’a précédemment remarqué, le syllogisme théorique, dont la majeure est un énoncé général et dont la conclusion est un énoncé individuel correspondant à l’énonce général, ne mène pas à un acte de pensée dont cet énoncé individuel est la signification. Le prétendu syllogisme normatif, dont la majeure est une norme générale et dont la conclusion est une norme individuelle correspondant à la norme générale, mène encore moins à un acte de volonté, dont la norme individuelle est la signification.” Hans Kelsen, Théorie Générale des Normes, Paris: PUF (1996), p. 317. 23 “Dans cet exemple, la prémisse majeure, la prémisse mineure et la conclusion du syllogisme ne sont pas des normes, mais des assertions sur des normes. De telles assertions sont soumises, non seulement à la règle d’inférence, mais aussi au principe de non-contradiction.” H. Kelsen,: “Le Droit n’obéit pas à la logique” in La Positivisme Juridique, M. Troper, C. Grzegorczyk (editeurs), Paris: LGDJ (1992), p. 344. 24 “La validité d’une norme ne peut avoir d’autre fondement que la validitié d’une autre norme. En termes figurés, on qualifié la norme qui constitue le fondement de la validité d’une norme sur le fait qu’elle a été posée pare quelque autorité” Hans Kelsen, Théorie Pure du Droit, p. 256. 25 “. . . entre une norme de degré supérieur et une norme de degré inférieur, c’est à dire entre une norme qui régit la création d’une autre et cette dernière il ne peut pas exister de conflit, puisque c’est la norme du degré supérieur qui est le fondement de la validité de la norme du degré inférieur.” Hans Kelsen, Théorie Pure du Droit, p. 278. 26 “Un tel conflit des normes existe lorsqu’une de ces normes dispose qu’une certaine conduite doit avoir lieu, alors que l’autre dispose que doit avoir lieu une conduite inconciliable avec le première . . . ce conflit ne consiste pas en une contra-

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tion denies the authority, which empowers the norms27 (although that contradicts the idea that the general norm and the individual norm are somehow two different acts of will . . .). According to Kelsen, the basic norm empowers (ermächtigt) subordinate norms, which in turn empower other inferior norms right down to individuated norms. This chain of authority is described as being a dynamic system28 in that the content of norms is variable. The basic norm determines the rules for the creation of subordinate norms,29 but not their content.30 In contrast, general moral norms imply the diction logique au sens strict du terme, bien que l’on ait accouotumé de dire que les deux normes “se contredisent”. Car les principes logiques, et en particulier le principe de non-contradiction, sont applicables à des assertions, lesquelles peuvent être ou vraies ou fausses; et une contradictionn logique entre deux assertions consiste en ce qu’une seule d’entre elles peut être vraie, ou la première ou la seconde; et si l’une d’entre elles est vraie, l’autre doit nécessairement être fausse. Mais une norme n’est ni vraie ni fausse, une norme est valable ou non-valable. Par contre, ce qui peut être vrai ou faux ce sont les assertions qui décrivent un ordre normatif.” Hans Kelsen, Théorie Pure du Droit, pp. 273–274. 27 “La forme d’alternative que se revêt la norme supérieure qui détermine la norme inférieure exclut toute possibilité de contradiction entre norme supérieure et norme inférieure. Une contradiction avec la première des dispositions possibles de la norme supérieure n’est pas une contradiction avec la norme supérieure proprement dite. En outre, toute contradiction entre la norme inférieur et la première disposition possible de la norme supérieure n’est pertinante qu’à condition d’être établie par une autorité competente.Toute opinion concernante l’existence d’une contradiction qui n’émanerait pas de l’autorité compétente n’est pas pertinente du point de vue juridique. L’autorité compétente établit l’existence juridique d’une telle contradiction en annulant la norme inférieure.” Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: LGDJ (1997), p. 214. 28 “Les systèmes de normes qui se présentent comme des ordres juridiques ont pour l’essentiel un caractère dynamique. Une norme juridique n’est valable parce qu’elle a un certain contenu, c’est-à-dire parce que son contenu peut être déduit par voie de raissonemen logique d’une norme fondamentale supposée, elle est valable parce qu’elle est créée d’une certaine fac¸on, et plus précisement, en derniere analyse, d’une fac¸on qui est déterminée par une norme fondamentale, norme supposée” Hans Kelsen, Théorie Pur du Droit, p. 261. 29 “Sec. 27 System as System of Norms: The law qua system – the legal system – is a system of legal norms. The first questions to answer here have been put by the Pure Theory of Law in the following way: what accounts for the unity of a plurality of legal norms, and why does a certain legal norm belong to a certain legal system? A plurality of norms forms a unity, a system, an order, if the validity of the norms can be traced back to a single norms as the ultimate basis of validity. This basic norm qua common source constitutes the unity in the plurality of all norms forming a system. That a norm belongs to a certain system follows simply from the fact that the validity of the norm can be traced back to the basic norm constituting this system. Systems of norms can be distinguished into two different typse accord-

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content of their specific instantiations – one can infer among moral propositions even though – according to Kelsen – one cannot infer moral principles from norms,31 nor infer the norms themselves.32 ing to type of basic norm constituting the system. Norms of hhe first type are ‘valid’ by virtue of their substance; that is, the human behavior specified by these norms is to be regarded as obligatory because the content of the norms has a directly evident quality that confers validity on it. And the content of these norms can be traced back to a basic norm under whose content the conten of the norms forming the system is subsumed, as the particular under the general. Norms of this type are the norms of morality. For example, the norms ‘you shall not lie’, ‘you shall not cheat’, ‘keep your promise’, and so on are derived from a basic norm of truthfulness. From the basic norm ‘love your neighbour’, one can derive the norms ‘you shall not harm others’, ‘you shall help those in need’, and so on. [p. 55] The basic norm of a given moral order is of no further concern here. What matters is knowing that the many norms of a moral order are already contained in its basic norm, just as the particular is contained in the general; thus, all particular moral norms can be derived from the general basic norm by way of an act of intellect, namely, by way of a deduction fom the general to the particular. The basic norm of morality has a substantive, static character.” Hans Kelsen, An Introduction to the Problems of Legal Theory (RR1), Oxford: Oxford University Press, 1992, pp. 55–56. 30 “Ce qui caractérise en effet ce type dynamique, c’est le fait que la norme fondamentale présupposée ne contient rien d’autre que l’institution d’un fait créateur de normes, l’habilitation d’une autorité créatrice de normes, ou – cela revient au même – une règle qui détermine comment doivent être crées les normes générales et les normes individuelles de l’ordre qui repose sur cette norme fondamentale. . . . Le norme fondamentale ne fournit que le principe de validité des normes qui forment ce système; elle ne fournit pas le contenu de ces normes.” Hans Kelsen, Théorie Pur du Droit 259–260. 31 “La validité d’une norme ne peut avoir d’autre fondement que la validité d’une autre norme.” Hanse Kelsen, Théorie Pur du Droit, p. 256. 32 “Sec. 28 The Legal System as Chain of Creation: Norms of the second type of system, norms of the law, are not valid by virtue of their content. Any content whatever can be law; there is no human behaviour that would be excluded simply by virtue of its substance from becoming the content of a legal norm. The validity of a legal norm cannot be called into question on the ground that its content fails to correspond to some presupposed substantive value, say, a moral value. A norm is valid qua legal norm only because it was arrived at in a certain way – created according to a certain rule, issued or set according to a specific method. The law is valid only as positive law, that is, only as law that has been issued or set. In this necessary requirement of being issued or set, and in what it assures, namely, that the validity of the law will be independent of morality and comparable systems of norms – therein lies the positivity of the law. And therein lies the essential difference between the positive law and so-called natural law. For the norms of natural laws, like those of morality, are deduced from a basic norm that by virtu of its content – as emantion of divine will, of nature, or of pure reason – is held to be directly evident. The basic norm of a positive legal system, however, is simply the basic rule according to, which the norms of the legal system are created; it is simply the setting into place of the basic material fact of law creation. This

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Kelsen calls a given system of norms static whenever the content of a norm therein is determined from its inception in the definition of the moral norm. This raises the question of the relationship between moral norms and juridical norms. Kelsen admits that such a relation can exist but does not believe such a relationship is either inevitable or necessary.33 Kelsen also admits that logic can be applied indirectly to determine the relationships between norms. Specifically, he admits that logic applies to basic norm, the point of departure for that process, has a thoroughly formal, dynamic character. Particular norms of the legal system cannot be logically deduced from the basic norm. Rather, they must be created by way of a special act issuing or setting them, an act not of intellect but of will. There are manifold forms for issuing or setting legal norms – custom or [56] legislation in the case of general norms, adjudicative acts and private law transactions in the case of individual norms. Law creation by way of custom contrasts with all other forms of law creation, which, unlike custom, yield enacted law [jus scriptum]; custom is therefor a special case [jus non scriptum] of the making of law. Tracing the various norms of a legal system back to a basic norm is a matter of showing that a particular norm was created in accordance with the basic norm. For example, one may ask why a certain coercive act is a legal act and thus belongs to a certain legal system – the coercive act of incarceration, say, whereby one human being deprives another of liberty. The answer is that this at was prescribed by a certain individual norm, a judicial decision. Suppose one asks further why this individual norm is valid, indeed, why it is valid as a component of a certain legal system. The answer is that this individual norm was issued in accordance with the criminal code. And if one asks about the basis of the validity of the criminal code, one arrives at the state constitution, according to whose provisions the criminal code was enacted by the competent authorities in a constitutionally prescribed procedure. If one goes on to ask about the basis of the validity of the constitution, on, which rest all statutes and the legal acts stemming from those statutes, one may come across an earlier constitution, and finally the first constitution, historically speaking, established by a single usurper or a council, however assembled. What is to be valid as norm is whatever the framers of the first constitution have axpressed as their will – this is the basic presupposition of all cognition of the legal system resting on this constitution. Coercion is to be applied under certain conditions and in a certain way, namely, as determined by the framers of the first constitution or by the authorities to whom they have delegated the appropriate powers – this is the schematic formulation of the baic norm of a legal system (a single-state legal system, which is our sole conern here).” Hans Kelsen, An Introduction to the Problems of Legal Theory (RR1), Oxford: Oxford University Press, 1992, pp. 55–57. 33 “Il est parfaitement possible qu’un seul et même système de normes combine le principe statique et le principe dynamique: si, par exemple, la norme fondamentale supposée est de type dynamique et ne fait qu’habilité une autorité créatrice de normes, mais que celle-ci ou une autorité instituée par elle ne pose pas uniquement des normes qui délèguent d’autre autorités créatrices de normes mais pose également des normes qui prescrivent une certain conduite des sujets soumis aux normes et qu de ces normes, d’autres normes peuvent être déduites par une opération logique, comme le partioculier du général.” Hans Kelsen, Théorie Pur du Droit, 261.

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phrases about norms. In contrast, Kelsen does not admit the possibility of an indirect application of logic to the norms by analogy. Nor will he admit the possibility of an analogy between the truth or falsehood of a logical proposition and the validity or invalidity of a norm. Again, it is a matter of the fact that norms, for Kelsen, cannot be true or false and that logic only applies, according to Kelsen, to statements, which are either true or false.34 Moreover, the validity or not of a norm is relative and variable. In contrast, the truth or falsehood of a proposition of theoretical logic is absolute and fixed35 (theoretical logic, unlike practical reasoning, is a-temporal). Another reason Kelsen considers it impossible to infer between the general norm and specific norms is the fact that the two norms are the consequences of different acts of volition.36 Thus, according to Kelsen, it is impossible to infer a specific norm from the general norm.37 34

“L’applicabilité des principes de la logique aux normes est quelquefois fondée sur une analogie, qu’on pense pouvoir présupposer, non certes entre la vérité d’une assertion et la validité d’une norme, mais entre la vérité de l’une et l’observation de l’autre. . . . il existe une différence fondamentale entre les affirmations et les prescriptions, à savoir qu’une prescription ne peut être susceptible d’être vraie ou fausse. C’est pourquoi la règle logique d’inférence n’est pas applicable aux prescriptions.” H. Kelsen,: “Le Droit n’obéit pas à la logique” in La Positivisme Juridique, M. Troper, C. Grzegorczyk (editers), Paris: LGDJ (1992), p. 336. 35 “Ainsi, chacune des deux normes en conflit peut être aussi bien observée que non observée et toutes deux peuvent présenter un certain degré d’efficacité. L’incompatibilité entre l’observation d’une norme et l’observation d’une autre est limitée au comportement d’un seul et même homme à la période d’observation d’une seule des deux normes en conflit. Au contraire, de deux assertions contradictoires, l’une ne peut être à la fois vraie et fausse ou vraie pour un homme et fausse pour un autre. . . . On ne peut donc pas établir une analogie réelle entre la vérité d’une assertion et l’observation d’une norme.” Hans Kelsen: “Le Droit n’obéit pas à la logique” in La Positivisme Juridique, M. Troper, C. Grzegorczyk (editers), Paris: LGDJ (1992), p. 337. 36 “Pour être valide, la norme individuelle . . . doit nécessairement . . . être un acte réel de volonté, qui est différent de l’acte réel de volonté, dont la norme générale, à laquelle la norme individuelle corresponde est la signification. La validité de cette norme individuelle ne pourrait être implicite dans la validité de la norme générale . . . que si l’acte de volonté, dont la norme individuelle est la signification, était également implicite dans l’acte de volonté dont la norme générale est la signification. Mais ce n’est pas le cas. A cet égard, il existe une différence essentielle entre la vérité d’un énoncé et la validité d’une norme.” Hans Kelsen, Théorie Générale des Normes, Paris: PUF (1996), p. 317. 37 “La norme individuelle ‘le voleur Smith doit être mis en prison’ ne pourait être implicite dans la norme générale ‘tous les voleurs doivent être mis en prison’ que si l’acte de volonté dont la norme individuelle est la signification était implicite dans l’acte de volonté dont la signification est la norme générale. Mais le législateur aui veut que tous les voleur soient mis en prison ne peut pas vouloir que Smith, qui a volé un cheval à un fermier, soit mis en prison, car il ignore qu’une personne nommée Smith existera un jour et qu’elle volera le cheval du fermier. On ne peut

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Kelsen also refuses to assign efficacity of a legal order as being a condition precedent to the validity of a norm and denies any analogy between the efficacity of a norm and the truth of a logical proposition.38 The best way to understand Kelsen’s propositions is to focus primarily on his basic unit of analysis, the norm, and secondarily on the moral relativism implicit in Kelsen’ non-cognitivism. The source of Kelsen’s non-cognitivsm is found in the thought of Hume. Hume opposed reason to passion and elevated passion above reason. To refute Hume’s epistemology one need only return to Aristotle who, as already noted, correctly saw that reason served to master passion allowing us to evade our own worst follies such as blind desire. However, simply reaffirming Aristotle’s thought is not a complete refutation of Hume and raises other problems since Aristotle was racist sexist and homophobic. To be clear, Aristotle’s morality is the morality of master over slave, of masters to other masters, Nietzsche’s Herrenmoral. Classical theoretical logic is indeed binary as Kelsen notes and thus is fundamentally limited since it forces all propositions to be taken as either true or false or outside of the system. In reality, some propositions are unknown or unknowable. Thus Aristotle’s binary theoretical logic (all values are true or false) cannot help us – but his probabilistic practical reasoning, also known as phronesis, wherein variables are probabilistically true, can. Since values can be likelier than not true. Kelsen, following Hume, rejects practical reasoning and so makes an enthymematic error, presuming that all values must be either necessarily true or false ignoring completely probabilistic and analogical reasoning thereby.

II. The Normative Syllogism Kelsen imposes two major limitations on his system of thought; first, for him, logic does not apply to norms. Second, norms can only have imen effet pas vouloir une chose dont on ignore tout . . . Seul la tribunal, qui a établi que Smith a volé un cheval au fermier, peut vouloir qu’il soit emprisonné comme voleur. Et le juge ne se confond pas avec le législateur.” H. Kelsen: “Le Droit n’obéit pas à la logique” in La Positivisme Juridique, M. Troper, C. Grzegorczyk (editeurs), Paris: LGDJ (1992), p. 341. 38 “L’efficacité de l’ordre juridique tout entier est la condition nécessaire de la validité de chacune des normes particulières de cet ordre. C’est une condition sine qua non mais non une condition per quam. L’efficacité de l’ordre juridique global est la condition, mais non la raison de la validité des normes qui le consituent.” H. Kelsen: “L’efficacité n’est pas une ‘condition per quam’ de la validité” en La Positivisme Juridique, M. Troper, C. Grzegorczyk (editeurs), Paris: LGDJ (1992), p. 326.

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putations39 that are not causal.40 Thus, rather than apply practical reason41 to norms42, Kelsen tries to create a new form of syllogism – the normative syllogism43 to get around the limitations resulting from rejecting the idea of practical logic (phronesis). However, this creation leads to useless complexity. The premises (norms) of the normative syllogism have no character of truth but do have a quality of validity.44 Each element being volontarist, this ‘syllogism’ cannot in fact lead to any conclusion. Therefore, it is useless. The practical or theoretical syllogism, in contrast, has premises and a conclusion, which can be true or false.45 There is no similarity between Kelsen’s normative syllogism and the practical syllogism or the theoretical syllogism aside from the syllogistic structure, empty of content and borrowed from classical logic. They look similar, and by using the same term Kelsen repeats the very confusion, which required the creation of a new term in the first place. Such complexity is pointless and sterile and results from a basic confusion within Kelsen’s concept of norm itself. Kelsen tries to assimilate two different intentional entities – his normative syllogism, a volontarist entity, and the logical syllogism, a conditional statement of fact – using the same form in the search of a non-existent unity apparently needed by or at least desirable for his (supposedly . . .) unified general theory. It cannot hold of course and so he sinks back into rejecting logical inference among norms even though such must be implicit in his system of norms chained from and unified by a basic norm. Kelsen explains his rejection of logic as applied to norms by their volontarist and undecidable character. This undecidability is in its turn the result of a refusal to apply practical reasoning to norms. Kelsen, following Weber 39

Hans Kelsen, General Theory of Normes, p. 24. Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), p. 97. 41 “For Hume, there is no such thing as practical reason.” Hans Kelsen, General Theory of Norms Oxford: Clarendon Press (1991), Ch. 20 “Is and Ought in Hume’s Philosophy”, p. 86. Hume affirme aussi que les prescriptions ne peuvent pas être développées des descriptions. Id. 42 Hume a abandonné cette idée, qui impliquant un pareil abandnnement chez Kelsen. 43 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), p. 231. 44 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), p. 233. 45 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), pp. 228–229. 40

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(who misinterpreted Hume . . .) wants to separate and demarcate law, the science of law, morality and the science of morality46 in order to create an autonomous science of law and thereby to underline the ‘purity’ (i. e. value neutrality) of his science of law. The term pure here means freedom from moral influence which would be possible only because law is seen as separate (autonomous). In fact ‘purity’ functions to purge first, practical reasoning, and finally theoretical rationality from the relations among norms. Kelsen admits that the science of law and the science of morality use syllogistic in their meta language. However, he refuses to apply the syllogism, even in a normative form, to the creation and application of the object language (law).47 This leads to a volontarism, which, in combination with moral relativism, permits and even implicitly justifies tyranny. Moreover, Kelsen’s description is not empirically true. Judges use the syllogistic form constantly in their decisions. These decisions are, for Kelsen, norms, and they are created by applying principles of logic. Cicero is much closer to describing what happens in the real world than Kelsen. Kelsen appears to affirm that it is impossible to develop a conclusion from a normative syllogism and normative premises because, according to Kelsen, that implies an implication of an ‘ought’ (a prescription) from an ‘is’ (a description). In sum, Kelsen’s position is this: (1) Norms are acts of volition.48 (2) Acts of volition have no truth content: acts of volition are neither true nor false.49 (3) Logic only concerns that, which is true or false.50 (4) Thus logic does not apply to norms.51 There are two points where one can oppose that view: (1) At the empirical level – in law, judges habitually use inferencing even among “norms”. 46

Hans Kelsen, General Theory of Norms, Oxford: Clarendon Press (1991), p. 1. Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), p. 226. 48 Hans Kelsen, General Theory of Norms, Oxford: Clarendon Press (1991), p. 233. 49 General Theory of Norms, at 180. 50 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), p. 192. 51 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), p. xliii. 47

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(2) At the theoretical level – which proposes that the basis of authority of legal rules is found in morality (but a morality very different than that, which existed prior to World War I).

III. Demonstration of Legal Inferencing Having multiplied the types of norm to cover the theoretical limitations created by rejection of practical logic, Kelsen must also multiply, as a consequence, the types of syllogism – even though he does not apply syllogistic to norms. The reason Kelsen abandoned the syllogism is that he is volontarist and anti-cognitivist. Being neither volontarist nor anti-cognitivist and as a consequence not opposed to syllogism, I argue that law in reality is developed in this method: – Condition (per Kelsen, general norm) – Fact (per Kelsen, individual norm) ... – Conclusion – either the condition is fulfilled – or the condition is not fulfilled In my opinion, the moral implies the legal, which is expressed as a conditional in the indicative (statutory laws, for example) ex ante, or as an imperative (legal decisions and commands of the executive, for example), usually ex post. Thus, we can define a chaining (which is not necessarily hierarchical or unified) among norms. My hypothesis is that a legal syllogism is valid if it follows the above model (major premise, minor premise, and conclusion) according to the principles of classical logic. From the perspective of Anglo-American law, Kelsen’s theory lacks practical interest/use. Civilianist law is developed deductively from specific decisions (case law) and general principles (codes). In contrast, Anglo-American law seeks to develop itself inductively through empirical experience i. e. case law. To solve a legal problem Anglo-American jurists examine earlier decisions (precedents) and argue analogically from and about them. General principles of law do not exist as a source of law in common law, which explains why the declaration of rights of man (1789) and the universal declaration of human rights (1949) have not been taken up as much in the English speaking world as in the civilianist world. Aside from the question of the competence of the legislator (a question of sovereignty), even if one admits that the universal declaration of human rights has at least persuasive authority there is still a big problem: how does one develop cases relative to this

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declaration, since those cases will in fact be binding precedent. Kelsen does not admit that rules can be developed by inference. However, this is just the process by, which we see the law develop in reality. Kelsen’s thought lacks empirical validity regarding normative inferencing. One could explain this limit by the insularity of the Anglo-Saxons. However, the Scandinavians have in fact also had some influence on the common law. Good translations of Kelsen’s works do exist in English. However, his theory is slightly less incorrect in a system of civil law where reasoning by analogy from cases is les important as a source of law (in the civilianist systems case law does not have de jure precedential effect though in the Germanic civilian systems it may de facto).

B. Critique Kelsen’s views are contradictory, ambiguous, and confusing. His errors appear at terminological, analytical, and synthetic levels. They are the result of a fundamental incoherence between his axiological relativism and his epistemological cognitivism.

I. Terminology 1. Polysemy The main critique directed at Kelsen is that his terminology is ambiguous and polysemical (Hartney). That leads to ambiguity,52 confusion,53 and equivocation (Raz). In fact, the term norm has at least two significations: (1) A thetic signification, which supposes the existence of a norm in a certain space and time. This contingent entity has no truth value; it is neither true nor false. In contrast, its existence is temporally conditioned: it can be created or destroyed. (2) An axiological signification, which has a truth value (it is always either true or false) and, which supposes that a given action would be proscribed in a given legal order. However, this signification has no temporal character even though it could be true or false. (Hartney).54 52

Hans Kelsen, General Theory of Norms. Oxford: Clarendon Press (1991), pp. xxiii, xxvii (Translator’s introduction). 53 Hans Kelsen, General Theory of Norms. Oxford: Clarendon Press (1991), p. xxvi (Translator’s introduction).

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Stanley Paulsen admits that this ambiguity exists in RR1 but he thinks that it can be resolved in RR2 by making the distinction between Rechtsnorm (legal norm, the thetic signification) and Rechtssatz (axiological proposition, lit. ‘statement of law’).55 But this ambiguity still haunts the ATN (Hartney).56 The definition of Kelsen’s basic unit of analysis, the norm, is thus variable and confused. The norm is used variously as indicating: a schema of interpretation, an act of volition, a signification expressing an ‘ought’ or, finally, a signification designating a juridical quality or characteristic. The elements of the definition are contradictory and the definition is in sum polysemical. This polysemicity leads to ambiguity,57 confusion58 and equivocation.59 One could even with some justification accuse Kelsen of being evasive.60 Similarly, the term Sollen (ought) is also polysemical indicating not only an order (command, with implicit or explicit punishment for noncompliance) but also advice or opinion (indicative with no implicit punishment). 2. Ambiguity As we have seen, the term ‘norm’ is polysemical and thus ambiguous.61 Ambiguity results because the term includes both commands to individuals (ex post statements) as well as conditions of general applicability (ex ante 54 Hans Kelsen, General Theory of Norms. Oxford: Clarendon Press (1991), p. xxvii (Translator’s introduction). 55 Hans Kelsen, An Introduction to the Problems of Legal Theory (RR1), Oxford: Oxford University Press, 1992, p. xxxi (translator’s introduction). 56 Hans Kelsen, General Theory of Norms. Oxford: Clarendon Press (1991), p. xliii (Translator’s introduction). 57 Bodenheimer, Edgar “Law as a Bridge Between Is and Ought” Ratio Juris, Vol. 2 No. 1 July 1988, p. 138. Joseph Raz, The Authority of Law Oxford: Clarendon Press (1979), p. 134. 58 Kelsen himself admits to confusing his own terms. Joseph Raz, “The Purity of the Pure Theory” in Lloyds Introduction to Jurisprudence (Lloyd and Freeman, eds.), London: Stevens and Sons (5th Edition, 1985), p. 392. 59 Raz, Joseph The Authority of Law. Oxford: Clarendon Press (1979), p. 137. Aussi, Raz, J. “The Purity of the Pure Theory” in Lloyds Introduction to Jurisprudence (Lloyd and Freeman, eds.), London: Stevens and Sons (5th Edition, 1985), p. 393. 60 Raz, J. “The Purity of the Pure Theory” in Lloyds Introduction to Jurisprudence (Lloyd and Freeman, eds.), London: Stevens and Sons (5th Edition, 1985), p. 390. 61 Michael Hartney notes this confusion in his translation Hans Kelsen, General Theory of Norms, Oxford: Clarendon Press. (1991), p. xliii (Translated by Hartney) (Hereafter ATN).

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statements). Ambiguity also arises from the fact that the act of volition, which created and maintains a norm can be considered either general or individual. For Kelsen, the individual norm (for example, a case) and the general norm (for example, a section of the civil code) are two different acts of will, which may, or may not, be related to each other via an imputation. Thus, if one admits that the decisions, for example of a judge and a legislator, are two different acts of will it is not possible to infer between those norms. Kelsen affirms that, in the law, the individual norm cannot be inferred from the general norm because the norms (whether general or individual) because they are the result of two different acts of will. According to Kelsen the law and the state are identical.62 But Kelsen also insists on the fact that the will, for example of the legislator, is different from that of the judiciary. Thus his separation of state volitions contradicts his supposedly unitary theory of the state – a contradiction, which could only be overcome if normative inferencing were somehow possible, but as we have seen for Kelsen it is not. This internal contradiction has ugly consequences for the coherence of Kelsen’s thought. His identity of law and state contradicts his idea of two differing volitional acts. In the end, this separation of wills is but an assertion and is not demonstrated. Kelsen does not sufficiently consider the alternative: one could just as well have characterised the will of the state as unitary. According to that perspective, the judge’s decisions are a manifestation of the will of the legislator. However, this alternative, which is coherent with Kelsen’s monism, would destroy the idea of the general and particular norm as products of two different volitions. It demonstrates the problematic character of the term norm, consequent to polysemicity. 3. Confusion Confusion in the term “norm” results from using the same term to indicate both descriptions of judgements and the judgements themselves. Because of that, we are forced (again.) to derive and guess at just what Kelsen means. An imperative and a conditional are entirely different grammatically speaking. To describe these two different concepts using one term leads to pointless and avoidable confusion. The term ‘norm’ includes not only statute laws but also judicial decisions. Kelsen gathers together several different intentional entities and lumps them all together under one term (‘norm’) 62 Hans Kelsen, Théorie Générale du Droit et de l’Etat, Paris: Bruylant LGDJ (1997), pp. 245–246.

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in order to impose an in fact non-existent unity via a non-existent entity (‘the basic norm’). The result is confusion. Unlike Kelsen, I argue that Laws are conditional contingent phrases in the form of ‘if . . . then’. They are not imperatives,63 rather they are descriptions. Decisions made according to those rules are commands (imperatives). Kelsen’s admixture of imperative and conditional, general and specific, ex ante and ex post statements under one term, norm, creates needless avoidable confusion leading to error. It also erases the distinction between executive (imperative), legislator (ex ante) and judiciary (ex post) – the result is a unitary government, which while paralleling the supposed unity of the norm also goes well with absolutism and authoritarianism. Kelsen unwittingly undermines the separation of powers, one of the principles, which guarantees a democratic government. 4. Neutrality? The choice of the term norm is probably found in the etymology of the term, which itself invokes the idea of volontarism and also in the search for neutrality. Thus Kelsen avoids terms like rule, law (positive law) and right (which would imply a natural law perspective). This neutral language is necessary for a reasonable and objective discourse. At the same time however it is not the term, which is the error. The error exists rather in the fact of a term, which tries unsuccessfully to unify several different phenomena. The result is unavoidable confusion because the term is polysemical. To overcome the ambiguity and polysemy and to compensate for the rejection of practical reasoning (phronesis), Kelsen, in search of an unnecessary neutrality consequent to Weber’s misreading of Hume, multiplies the qualifications associated with the term “norm” in order to try to attain an 63 The imperative and conditional distinction is simply the distinction between the imputation of a changed legal relation ex post and the ex ante prediction that if the conditional occurs then an imputation will follow. C.f. “. . . as we know, imperatives can very well be expressed through sentences in the indicative, depending on the setting and on the matter of uttering them. The grammatical form of the sentences adduced by Austin as examples of performatives is therefore no obstacle to interpreting them as imperatives. However, if they are really are not addressed to another person: no body is commanded to do, or forbear from doing something when it is said that a particular word shall be the name of the ship, that the woman shall be the wife of the bridegroom, or that the watch shall be the property of the brother. . . . These effects are supposed to follow from the pronunciation of the imperatives in question provided this is done in the right circumstances: and as it seems, the imperatives would make no sense if the effects could not take place. “Karl Olivecrona, Law as Fact, London: Stevens & Sons (1977), p. 218.

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effective analytical tool. Even though it appears that the term norm itself implies an implicit presumption of normality – and thus an affirmation of the validity of the status quo, the implicit legitimacy of the regime analyzed. Norms for this reason seem to enjoy a presumption of validity especially since the existence of a norm is, for Kelsen, independent of the efficacy of that norm.

II. Useless Complexity The complexity in Kelsen’s thought reveals itself to be globally useless for the following reasons: 1. Terminological Multiplication The multiple qualification of the term “norm”64 is the only exit possible in the face of an inherent ambiguity in the term “norm” itself. This ambiguity exists because of a fundamental distinction between physical acts and speech acts. A norm could be a description of consequences defined as that, which result from a conditional (the norm as command), or it can be seen as acts, which actuate those conditional (the norm as a means of enabling other norms). These two intentional objects are different. The one is a conditional, or a conditional, which creates other conditionals, the other is an imperative, the consequence of a conditional. They are both intentional objects but each has a different character to the other. To “unite” them under one sole term “norm” necessarily creates needless and useless confusion. 2. Multiplication of Syllogisms Kelsen may also have thought it necessary to create a new form of syllogism (normative syllogism) to avoid the confusion between the validity of propositions in the syllogism and the validity of the structure of the entire syllogism.65 The validity of propositions in a syllogism (the syllogism’s major and minor premises) is not found in the syllogism itself.66 But logicians and jurists already know that the validity of premises of a syllogism is not a condition for the validity of the syllogism itself. Complexity and 64 E. g., juridical norms, moral norms, logical norms, general norms. Hans Kelsen, General Theory of Norms, p. 1. 65 Hans Kelsen, General Theory of Norms, p. 229. 66 Varga, Lecture à Reyjkjavik.

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needless duplication of effort combine here to obscure the field under investigation. 3. Imputation: A Useless Distinction According to Kelsen, the connection between facts and acts of volition is not causal. He describes the link as imputative. There is no necessary connection between an act of volition and a human behaviour because humans have free will. For Kelsen, the syllogism applies to facts (the things, which necessarily develop) and not to will (which is always contingent, conditioning and conditional, i. e. arbitrary). According to Kelsen one cannot infer between norms but one can impute their relations. This distinction, which does not hold a dominant place in his theory, leads to needless complexity. 4. A Special Juridical Logic? One particular question is whether there is a particular juridical logic67, unique to legal science as a subset of classical logic.68 For Kelsen, volition is the definitive source of law,69 so there is no specialized legal logic for Kelsen70, which is Tamello’s position as well.71 But regardless whether one considers legal logic as one domain of logic or as an autonomous science with its own rules one is trying to develop an objective system of thought from subjective perceptions of objective experiences. The distinction seems a bit pointless. 5. The Posthumous Character of the ATN Some of the difficulty in the ATN surely arises because it was published after Kelsen died.72 Consequently, one is forced to guess where Kelsen was making breaks from his earlier works and whether any given proposition in ATN should be presumed to be consistent with his earlier works and interpreted accordingly. This just adds to the confusion. 67 Hans Kelsen, Théorie Générale du Droit et de l’Etat. Paris: Bruylant LGDJ (1997), p. 245. 68 Ilmar Tammelo, Modern Logic in the Service of Law, Springer Verlag, New York (1978), p. 1. 69 Kelsen, Hans, Théorie Pur du Droit, p. 7. 70 Ibid, p. 245. 71 Ilmar Tammelo, Modern Logic in the Service of Law. Springer Verlag, Xien & New York (1978), p. 1. 72 Hans Kelsen, ATN at xiii.

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III. Methodological Aporia According to Kelsen (RR1) science constitutes its objects. He affirms, moreover, that the methodology of a given science is determined by its subject. However, those two positions are logically incompatible. Taken together they lead to circularity where method determines object, which determines method: which came first, the chicken or the egg? According to Hartney, the thesis of the constitutive role of science disappeared with the ATN; there science describes its object but does not create it thereby.73

IV. Problem of Postulates In two places Kelsen begs questions: 1. Separation of Law and Morality The first question begged concerns the separation of law and morality. If we ask “why separate law and morality”, Kelsen would respond that morality is subjective, individual, and relative. However, if we continue asking: “why is morality relative?” we reach a dead-end. Kelsen does not even try to explain the foundations of his moral relativism. Thus, one is entitled to view it as a postulate and a questionable one at that. The supposed subjectivity of morality is definitely not self-evident. 2. The Basic Norm Similar question begging occurs as to the basic norm. If we ask ‘Why are norms valid?’ the answers it that norms are valid because they were created according to the (there can be only one . . .) basic norm. If we then ask why the basic norm is valid we discover that the basic norm is a fiction,74 a postulate, a hypothesis, (which?) in any event a necessary (why?) foundation to explain the validity of other norms. Although the idea of a basic norm is necessary to avoid the problem of infinite regression (at least in a system of non-contradictory norms . . .), the existence of that problem does not explain why norms are valid75 especially since one can observe 73 Hans Kelsen, General Theory of Norms. Oxford: Clarendon Press (1991), p. lii (Translator’s introduction). 74 Hans Kelsen, General Theory of Norms, p. 256. 75 “Kelsen’s answer is that this norm is the Grundnorm, the basic norm or ultimate premiss of the whole system, and that for legal purposes, we cannot go behind

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legal conflicts of law all the time, not merely lacunae, but also between dualist national orders and international law. Norms are not unitary, they are plural and in conflict.

V. Tautology of the Basic Norm The relation of the general and individual norms to the basic norm is circular. Circular definitions are empty. They have no descriptive power themselves and tend to undermine whatever other descriptive power a theory otherwise holds. The basic norm defines other norms in that it determines the way they are created. However, the general and individual norms define the basic norm and are the evidence of its existence. That demonstration is in fact circular and logically empty.

VI. Rationalisation Another difficulty linked to the idea of a basic norm is that the proof of its existence is flawed. Kelsen uses Kant’s analytical method. According to this method, presuming we can know norms, how is such knowledge possible? To verify and to found his system he presupposes the existence of a basic norm. However, this hypothesis is not the only (or even the most likely) one we could envision. An anarchic and indeterminate system, with no basic norm or ultimate power or any finality is another explanation of the law. A polyarchical system is also possible, with many norms but no final ultimate norm and no hierarchically determined ordering of the competing and conflicting norms. Both those alternatives seem more like what happens in reality than the idea of one basic universal norm. The logical form of Kelsen’s error as follows: – If a basic norm exists then the general and individual norms can exist. – The general and individual norms exist. – Thus the basic norm exists. That is a basic logical flaw. To rationalize is to form ones premises in function of the conclusions they lead to. Here, although Kelsen is employing Kant’s analytical method his reasoning is faulty. He is confusing ‘if’ with ‘if and only if’. The analytical method in contrast does apply to this following argument: it. It is rather like the idea of the world, supported on an elephant, the rules not permitting you to ask what supports the elephant.” Dennis Lloyd, The Idea of Law, p. 194.

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– p if and only if q, – p, – thus, q. This would be as follows: – Knowledge of norms is possible if and only if there is a basic norm. – We have knowledge of norms. – Thus a basic norm must exist. However, I have already explained we do not have knowledge of norms and why. Though, at least it would be more logical than the position of Kelsen – Kelsen simply asserts that knowledge of norms is possible and it is only possible if we have a basic norm. However, there are other possibilities, an anarchical or polyarchical or pluralist system of rules, for example. It is a matter of the difference between the possibility and necessity of having knowledge of norms.

VII. From Subjective to Objective Signification Kelsen does not explain the passage from a subjective signification of a norm to its objective signification. For example, revolutionaries form a new government. Before their victory, for Kelsen, their pretentions to power are “subjective”. But, if they seize power and form a government their pretentions are no longer pretense and are considered “objective”. When and how does this transition occur and why? Kelsen does not seem to say when.

C. Conclusion The contradictions76 in Kelsen’s work reveal basic theoretical confusion. Kelsen seeks to resolve those problems without considering their ultimate source – the relationship among the transcendantals (universals, i. e. truth, the good). This philosophical error condemns his theory to a certain powerlessness. Kelsen provides no aid to understanding or resolving any of the problems in contemporary legal theory. His theory is not only ‘pure’, it is also sterile, powerless, and does not accurately describe legal reality.

76 His perspective on the unity of State and law, and the plurality of the will of the organs of state is also a contradiction. That Kelsen develops a hierarchized and relative system, which he then uses as the basis for a unitary and absolutely valid basic norm.

Chapter 10

After Modernity? – Critical Legal Studies A. The Origins of Critical Legal Studies: Legal Realism The origins of critical legal studies (the U.S. version of freie Rechtslehre) are to be found in the American legal realist1 movement of the 1930s (the U.S. version of Interessenjurisprudenz). The underlying contradictions of American democracy were revealed by the worst economic crisis in American history. The reactionary jurisprudence of the US Supreme Court led President Roosevelt to attempt to “pack” the U.S. Supreme Court. US Supreme Court justices enjoy life tenure and cannot be removed from office. However, the US constitution is silent as to the number of justices. Since Roosevelt could not remove the justice whose constitutional interpretations were undermining the relief policies of the New Deal (a program to install a modest welfare state in America) he attempted – unsuccessfully – to appoint many new judges. Although the President’s legal but unorthodox attempts to “pack” the court failed his message did not. After the court packing incident the interpretations of the court became markedly less hostile to the exercise of federal power in the name first, of ending the depression, and then later of fighting and winning the second world war. At the same time as these judicial manoeuvres were going on – and in part because of them – a new school of thought arose in the United States known as “legal realism”.2 Legal realism is the intellectual forbear of Criti1 “American legal realists maintain that judges do in fact make law. However, against Bentham they maintain that judges should take a hand in making law, and against both Bentham and Blackstone they maintain that judges must be makers of law-and by ‘’must” is meant that judges necessarily make law, that this is intrinsic to the very process or activity of judging.” Theodore M. Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 1. 2 “The realists (or some of them, at any rate ) maintain that by approaching the study of law from the direction of the judicial process, we can gain insights that will yield a view of law quite different from the picture presented or implied by such [natural law] writers as Blackstone and Bentham.” Theodore M. Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 2.

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cal Legal studies. The object of this chapter is to discuss the relationship among legal realism, Marxism, Critical Legal studies, and post modernism. Legal Realism proposes a simple yet radical alternative view of legal interpretation. Recognizing the arbitrary character of judicial interpretation, the multiplicity of possible interpretations, and the Realpolitik of judicial appointed tenured judicial power, the legal realists stated, quite accurately, that natural law interpretations were in fact defective. This fact reveals positivist influences on legal realism. While legal realism is correctly seen as a “left” legal theory, it can be linked to the conservative justice Oliver Holmes. Holmes believed that law was nothing other than the power of the state to coerce behaviour. And while Holmes’s thought was definitely conservative, his positivism represented a radical break in traditional judicial interpretation. Prior theories of interpretation, based on a natural law or natural justice theory of the eternal and unchanging nature of universal justice were, to Holmes, nonsense. However, pure positivism replaces natural justice – a moralistic theory that states that all law to be valid and effective must be just – with natural law – the law of the jungle. The confusion of natural law (the law of the strongest) and natural justice (that only a just law can be effective) is one of the most glaring errors of naturalistic theory and explains in part why naturalist theory has been eclipsed by amoral theories, which are proposed as purely scientific positivism but, which are in fact only variants of Hobbes’ theory of natural law; the natural law is the law of the strongest. Once the identity of natural law (lex naturalis – the law of the jungle) and positivism3 is cognized, many of the false debates, which characterized twentieth century legal discourse4 are moved to their proper field – which is a debate between two naturalistic theories; natural law (Hobbes) and natural justice. Here, I use the term “natural law” to refer to the theory that law is effective because of force or the threat of force. I use the term “natural justice” to refer to the theory that law is valid only when just. Normative theories of natural justice propose that law should only be effective if it is just. 3 “The idea of a natural law derives from Antiquity, but the notion of positive law was developped during the Middle Ages. Exactly when this took place is not known.” Karl Olivecrona, Law as Fact, London: Stevens and Sons (1971), p. 7. 4 “Post-Modernism introduces the concept of ‘discourse’ as a category of knowledge. ‘Synchronic analysis however, requires that experience be abstracted and flattened so as to fit into whatever system (or ‘discourse’ or ‘code’ or ‘structure’) is deemed relevant. The result is a second loss, that of ‘depth,’ which is everywhere ‘replaced by surface, or by multiple surfaces’.” Robert Post, Reviewing Post Modern Temptations, 4 Yale Journal of Law and the Humanities 391, 393 (1992).

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While I do not propose to present the debate between theories of normative and positive natural justice such debates do exist and these are correct terms for describing this debate accurately and succinctly. Returning to the question of legal realism, the legal realists perceived the positivistic nature of legal decision in fact. Legal realism also proposed that judicial decisions are only a subjective expression of a judge’s preferences which are circular,5 tautological, and no objective expression of “reality”.6 So, to determine judicial decisions, rather than looking at law books,7 in search of judicial deduction8 (the inductive-deductive theory,9 it is argued, is really just a will theory), legal realism looks at the class origins of the judge and the litigants. I use “class” to refer to arbitrary but objective classifications of persons according to wealth, race, gender, sex, religion, and sexual orientation. Legal realists introduced class based and psychological analysis to U.S. legal reasoning. Rather than seeing the judicial decision as a logical and 5

Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 15. “. . . judges, far from being bound by rules, are free either to choose among rules where more than one applies -perhaps not arbitrarily, but by their own lights – or to decide cases on their own where there are no applicable rules at all.” Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 4. 7 “We can see here the kind of methodology employed by the realists. We are not to theorize about law by the exercise of a priori thinking that does not come to terms with the facts, and we are not to impose our preconceived ideas on the facts. We are instead to see what the facts are. If we want to know what legal reasoning is like, we must see how judges actuallv reason. What is it that we see when we look at the actual workings of the judicial process? What we see first of all, say the realists, is that rules of law do not play the kind of central role in legal reasoning that is claimed by the deductive model. For it is a notorious and noteworthy fact that different judges, employing their own reasoning processes, reach different results in similar cases and even in the very same case.” Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 3. 8 “In the deductivre model a judge first discerns the facts and then finds the applicable rule . . . statements expressing the facts constitute the minor premise in legal reasoning. However, this view of the role of facts is also wrong headed, according to Frank; The deductive model presupposes that the determination of the facts can be separated from the determination of what rules are to be applied to the facts. ‘’But these two parts of judging are usually not separated, but intertwined. Generally it is only after a man makes up his mind, that he attempts, and then artificially, to separate these two operations.” Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 5. 9 “In this model the applicable rule of law is the major premise of a given piece of egal reasoning, the relevant facts of the case constitute the minor premise, and the conclusion (the decision that the judge is to make) is arrived at by a straightforward and airtight piece of deductive reasoning.” Benditt, Law as Rule and Principle, The Harvester Press (1978), p. 2. 6

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objective expression of truth, the legal decision was seen as a subjective rationalisation of a structure of class relation. Because of the subjectivist strain of realist interpretation it is often dismissed or mocked as presenting a “breakfast table theory” – that the judicial decision is so subjective as to be the consequence of the judge’s indigestion. The most well known realist is Karl Llewellyn though he had several contemporaries. Unfortunately Llewellyn’s radicalism toned down in the post war era and his theories later became a mere affirmation of the American regimes legitimacy. As we can see the class based analyses used by legal realism recurs later in legal realism and parallels Marxism. Neither legal realism nor critical legal studies are overtly Marxist. Unlike Soviet government legal realism and CLS never held state power as movements. So we now look at overt Marxist i. e. Soviet legal theory.

B. Marxist Legal Theory Marxist legal theory (unlike Marxist theory generally) is largely ignored in American legal reasoning.

I. Antinomianism Marxist legal theory fundamentally opposes law because law is a barbaric expression of state power and as such must be transformed Proletarian dictatorship is thus intended as a temporary condition to permit the reform of the capitalist class and to allow the state to evolve first towards socialism (collective ownership of the means of production) and then to disappear as it is gradually replaced by voluntary communism. Marxists explain history using historical and dialectical materialism.

II. Historical (Dialectical) Materialism Historical materialism explains the failure of legal realism. Legal realism was unable to explain social facts. When World War II ended, the legal realists did not understand that the temporary peace and prosperity was founded upon the slaughter of the unemployed. Legal realism failed to identify the historical dialectic that created it and so it disappeared.

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III. Socialist Legalism Socialist legalism is the theory that while laws are only temporary instruments directed to advance towards socialism they must for this very reason be interpreted objectively. The rule of law in the Soviet state was always subjected to the reasoning of dialectical materialism. To that view, law can only be replaced after the evolution of the state toward communism. This evolution must be structured using law in order to avoid reactionary backlash and a recurrence of imperialism. The Soviet state was based on socialist legalism, a variant of the idea of the rule of law. The idea that law is objective is another difference between Marxism and legal realism.

IV. Criminal Theory Marxist theories of law seem most effective in the area of criminal law. Late capitalist regimes fail to provide coherent rationales of their criminal systems. Wavering between theories of deterrence and retribution, capitalist systems of criminology at best toy with the idea of rehabilitation. Arbitrary and unequal sentencing conditions, racism, and violence characterize capitalist penal systems. Prisons offer cheap labour. As a consequence, the American prison system is now the largest on the planet. Incarceration reduces unemployment statistics, offers cheap and exploitable labour with few or no health or safety concerns and provides jobs for construction, “security”, and police accessories such as handcuffs. There is big money in repression. Marxist penal theory has a different rationale. Rather than punish or exploit the criminal the object is to help the criminal to understand their crime and the antisocial character of their crime. Marxist penology correctly focuses on rehabilitation and reform. Legal realism succeeded in pointing out systemic contradictions within capitalism but did not determine the correct sources of those contradictions or offer real solutions to them and thus disappeared from roughly 1950 to 1970.

C. Critical Legal Studies The great depression was an example of the failure of capitalism. Business cyclicity led to mass unemployment and unrest. One consequence was legal realism.

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The Vietnam War was also a major political upheaval. Business cyclicity was less important as a cause of the war. The Vietnam War is an example of an imperialist war for raw materials: Vietnam produces oil and rubber. A more recent imperialist war can be seen in Iraq where in order to maintain access to petroleum capitalist economies waged war on the third world. These crises illustrate a serious defect of capitalism: that it encourages wars for profit. Just as the capitalist crisis of the 1930s led to legal realism, so the failed imperialist war in Vietnam led to Critical Legal Studies (CLS). CLS starts where legal realism left off: for CLS, rules are arbitrary and in fact the imposition of the will of one class over another (the “will theory” of law).10 However, CLS is more strident than legal realism. If legal realism is looking at symptoms in the judicial system of capitalist failures, critical legal studies is looking at the causes of those symptoms and is at times somewhat neo-Marxist. Capitalism requires an industrial reserve army (Karl Marx; Milton Friedman). Capitalist economies are cyclical (idem). Capitalism also requires wars to guarantee access to raw materials (Lenin) and tends to ever larger concentrations of wealth and monopolies (Marx). Capital tends to monopoly because of economies of scale, and examples of monopoly capital include Rockefeller’s Standard Oil, and Bill Gates’s Microsoft. Adam Smith does not discuss economic cyclicity so far as I have seen. While Smith’s competition theory may work in small scale semi feudal economies in large scale industrial economies it does not. Smith is of course a genius for pointing out the increases in productivity resulting from specialisation and the mutually advantageous character of trade. Marx seems only indirectly to address Smith’s theories. It seems that Marx believes that amplitude of economic cyclicity grows over time – which is simply untrue. However, economic cyclicity seems inevitably part of capitalist economy. A key question for post-war law is whether capitalism succeeded in reforming itself out of economic cyclicity (boom and bust) leading to war for markets and resources (war for profit). The answer is a qualified yes: in the first world we no longer see inter-imperialist wars resulting from market crash, the pattern of boom-bust-war. However, we We still observe this pattern of wars for profit and market share in the third world. 10 “The notion of positive law presented no great problem. Grotius is very brief on this point. The ius voluntarium is so named because its origin is in the will of men or God. The ius civile stems from the will of the sovereign. It consists of the sovereign’s prohibitions and precepts. Its duration is dependent on his will. Pufendorf is more explicit. Every positive law is grounded on the authority of a superior. Human positive law consists of the commands of the sovereign. It is, indeed, nothing but his will through, which he prescribes how the subjects are to act.” Karl Olivecrona, Law as Fact, London: Stevens and Sons (1971), p. 9.

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Where can or will CLS go? CLS can only present a truly radical critique of capitalism when it moves beyond mere criticism, trashing the system, and starts presenting positive agendas for change. CLS discourse is mostly negative, opposing the existing system without proposing alternatives. These alternatives could be “economic” (interest free banks – which are the norm in Islamic states) or “political” (electronic democracy). However, unless they consider the inherent problems of a for profit private enterprise economy their critiques will be ineffective.

D. Post Modernism How are the questions of the machinations of radical American legal theory pertinent to post modernism? For post modernists, the problems of the identity and objectification of the legal subject are key legal questions.11 Post-modernism uses deconstruction, derived from the Frankfurt school and post-structuralism to critique liberal law12 as it abandons universalism to instead construct individuated narratives in an admittedly vain attempt to try to capture an inherently ineffable reality.13 Post modernism proposes a world where all values are arbitrary14 where meaning is relativized and contingent,15 and thus where there is no objec11 “Sometimes it seems as if there is only one story in American legal thought and only one problem. The story is the story of formalism and the problem is the problem of the subject. The story of fomalism is that it never deals with the problem of the subject. The problem of the subject is that it’s never a part of the story.” Pierre Schlag, The Problem of the Subject, 69 Texas L. Rev. 1627, 1627 (1991). 12 “I will generally employ the term post-modernism and treat it as subsuming post-structuralism and deconstruction: post-structuralism identifies the ground-clearing theoretical critique of both Marxist structuralism and linguistic structuralism while deconstruction names the method employed in opening up ‘the text’, whether legal judgment, news story or novel, to reveal what it contains and what it blocks or excludes But the term post-modernism, even if it does not define the project, at least has the merit of projecting something of its flavour.” Alan Hunt, The Big Fear: Law Confronts Postmodernism 35 McGill L.J. 507, 508 (1990). 13 “. . . the radical self-conception of post-modernisnm arises from its claim that we must break with the kind of ‘big’ questions, which have traditionally motivated the intellectual projects of the previous epoch. It is not so much that modernism arrived at the wrong answers, but that its questions were unanswerable; they have been too broad, too abstract, riddled with a distinctive mix of naive humanism, an unwarranted faith in science and an over-optimistic view of the capacity of language to capture and share knowledge.” Alan Hunt, The Big Fear: Law Confronts Postmodernism 35 McGill L.J. 507, 509 (1990). 14 “Postmodernism assumes that different logics or paradigms, that is, different systems of discourse with their distinctive value axioms can coexist in the same so-

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tive morality. In so far as these ideas were proposed by David Hume (who believes that morality is simply a matter of personal taste) Saussure (the arbitrary character of the sign), Nietzsche (truth may not exist and is all too often merely fabricated), Willard Quine (who proposes that language is indeterminate for every term is defined in by some other term, which I would describe as global circularity) and Gödel (some true theorems cannot be proven while some false theorems cannot be disproven, though there do exist theorems, which are both true and demonstrable or false and refutable) they are in fact expressions of epistemological puzzles that have plagued modernity since the 18th century. Post modernism can however distinguish itself from modernity in that the modernistic discourse since the industrial revolution centres upon productivity, a universal grand narrative16 of “progress” and replication. Since Marxist theory is not morally “neutral” or relativist, and since Marxist discourse correctly focuses on progress as a valid goal (since 3/4ths of the planet is ill housed and ill fed) Marxist theory cannot be considered post modern.17 This is really a shame for post modernism does offer the opportunity of proposing radical critiques of late capitalism. Specifically: – Post modernism gives a voice to the ordinarily voiceless (but then does not listen to that voice since “all opinions are valid, there are no universal values”).18 cial space. This, above all, distinguishes postmodernism from enlightenment modernism. The enlightenment modernist speaks of knowledge (in the singular) rather than discourses (in the plural). The Enlightenment view rests on temporal rather than spatial metaphors. That is to say, the enlightenment view sees knowledge as a succession of paradigms. One system of knowledge succeeds another in a progressive, developmental sequence. This is the march of reason in history – from feudal theology to metaphyslcs to positivism” Dennis Patterson (ed.), Postmodernism and Law, Aldershot Dartmouth (1994), p. 4. 15 “Meaning arises from the relative positions of the fragments in the constellation.” Dennis Patterson (ed.), Postmodernism and Law, Aldershot Dartmouth (1994), pp. 4–5. 16 Post-modernism rejects universal narratives, especially Manichean ones. “premonitions of the future, catastrophic or redemptive have been replaced by sense of the end of this or that.” Robert Post, Reviewing Post Modern Temptations, 4 Yale Journal of Law and the Humanities 391, 391 (1992). 17 “Marxism inhabits a millenarian temporality, oriented toward a future of progressive political achievement and fulfillment. Jammon is therefore unsympathetic to postmodernism’s repudiation of time; he views it with considerable suspicion . . . ‘the sequel, continuation, and fulfillment of the old fifties ‘end of ideology’ episode’.” Robert Post, Reviewing Post Modern Temptations, 4 Yale Journal of Law and the Humanities 391, 394 (1992).

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– Post modernism places all existing thought structures in question (by the rejection of moral principles – which deprive the voiceless of real impact).19 Post modern thought does not and cannot lead to a powerful critique of the systemic causes of tragedies such as the great depression and the Vietnam War. Post modernism’s best hope is to be a window for critical discourse, which rejects the moral spinelessness, which characterizes Hume and his heirs. The error of imperialism was not morality, but the wrong morality. Should anyone wish to debate the existence of universal moral principles let them ask themselves how they would react at the violent death of a loved one – say, in the interest of some multinational cartel’s board of directors. If seduction and subversion are post modern tactics then Marxists should co-opt these tactics by calling into question the moral emptiness, which characterizes relativistic discourse. Marx even had a term for such emptiness and spiritual rape: he called it “alienation”.

18 “Schizophrenic nominalism is most evident in the writings of Postmodern academics.” Robert Post, Reviewing Post Modern Temptations, 4 Yale Journal of Law and the Humanities 391, 394 (1992). 19 “. . . postmodernisms evisceration of nature and its tendency toward schizophrenic nominalism.” Robert Post, Reviewing Post Modern Temptations, 4 Yale Journal of Law and the Humanities 391, 395 (1992).

Chapter 11

Contemporary Legal Theory: Scientificity In the first parts of this book we looked at the history of legal theory. In this portion we look at specific current issues. I argue that contemporary law is moving toward a post-positivist integration of natural right and positive law. In these final chapters I explore that theme in detail, focusing on specific current legal issues. I start with an examination of the scientificity of law, and then look at the problem of legal determinacy, and then rights discourse. I conclude with an examination of the human right to food as an example of contemporary rights discourse. The theory of law and justice exposed in this book is applied to the construction of the right to food to show how a coherent theory and precise terms lead to logical and persuasive resolution of a controverted question. A structured theory of rights based on coherent assumptions and using precise terms clarifies confused concepts and can contribute to solving complex controversies such as whether there is an international human right to food, and what the exact content of that right is.

A. Introduction In this chapter I argue that a science of law1 is possible, and is the most effective way to criticize bad positive laws which fail to obtain substantive justice. The study of law in the United States has been singularly limited by a lack of scientificity.2 This is partly structural: U.S. law teachers take a variety of different courses as undergraduate specialties – usually economics, political science or philosophy most frequently, though in fact any study at 1 For a good historical overview of the idea of legal science in the United States see: Howard Schweber, The “Science” of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education, 17 Law & Hist. Rev. 421 (1999), available at: http://www.historycooperative.org/journals/lhr/17.3/ schweber.html. 2 “. . . judges and lawyers need not be legal scientists” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 176.

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the undergraduate level is possible. They then attend an elite law school for three years and then clerk and/or practice law for 2 to 5 years. Along the way they may or may not pick up an LL.M. or a Doctorate in some field related to law – usually in economics, political science or philosophy, though occasionally in history or one of the other liberal arts. Thus, the conceptual apparatus and training of U.S. law teachers is extremely diverse (more so than lawyers elsewhere), yet that diversity is not coordinated scientifically. The result is that no systematic, comprehensive or well founded view of law as a whole or even one branch of law emerges despite the breadth of experiences due to lack of depth and coordination. This is also partly a result of the fact that the common law, unlike the civilianist legal systems, is not clearly demarcated into four main trunks with distinct rules of interpretation and hierarchies of norms: national public law, public international law, private international law and private national law.3 This structure, so evident in European civil law, is really only implicit in the common law. That too contributes to the lack of scientificity in the common law. The formative background of U.S. legal scholars partly explains why the idea of legal science has not gotten too far in the U.S. Lack of scientific depth and coordination works to the detriment of law, justice and law teaching. The lack of depth and of systemic comprehension can be remedied – after all the raw materials are in place. Law can be studied scientifically, and this chapter proposes guides to how that can happen. Common law scholars tend to regard claims for the scientific study of law with scepticism. That may in part be because Max Weber miscast the scientificity of the social sciences4 in a deliberate effort to contain social critiques of capitalism. Similarly, several5 post-modern critiques,6 if true, 3

This typology can be traced back at least to Justinian’s Institutes. See, B. Moyle, The Institutes of Justinian, trans.3rd ed. (Oxford: Oxford University Press, 1896), pp. 3–5. 4 For Weber, science must be non-normative. See, e. g., Max Weber, Der Sinn der “Wertfreiheit” der soziologischen und ökonomischen Wissenschaften, available at: http://www.zeno.org/Soziologie/M/Weber,+Max/. 5 “Thus, for example, modernists often declare that either we have objective knowledge – that is, knowledge grounded on some firm foundation – or we are relegated to free-floating subjectivism and relativism. Likewise, some modernists maintain that either we must be independent subjects with freedom of will or we must be no more than completely determined automatons.” Stephen M. Feldman, An Arrow To The Heart: The Love And Death Of Postmodern Legal Scholarship, Vanderbilt Law Review, note 51 at 2366 (2001). However, natural phenomena clearly are not inter-subjective. They are objective. And since thoughts are a reflection of the world social phenomena too are objective and not merely inter-subjective. 6 “Schizophrenic nominalism is most evident in the writings of Postmodern academics. Jameson illustrates the point by reference to Paul de Man’s implacable

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would warrant rejection of the scientificity of law (and social sciences generally). The post modern critiques do not withstand careful scrutiny. An examination of the post-modern critiques from the perspective of Aristotelian dialectics7 explains why and how the study of law can be scientific. Moreover, legal science is not only possible, it is also desirable. Only a scientific basis can serve to identify and resolve in a systematic fashion the problem of the relation between law and justice. This chapter will describe how the scientific method developed by Aristotle can be used to study and understand problems of law and justice. It will also reach some interesting and perhaps counterintuitive conclusions of importance to the study of philosophical logic generally. It does so using the work of Professor Duncan Kennedy8 as a foil. Kennedy, like Catharine MacKinnon, is at least sceptical about the idea of legal science. However, left radical critiques of the American justice system have spent four decades failing and their rejection of the idea of the scientificity of law is part of the reason why.

B. Scientificity of Law – How the Study of Law is Scientific? I. Past Efforts at Universalisation in Human Sciences There was a definite tendency in the 20th century in most all sciences to attempt to construct special, relativized systems of thought and then to attempt to construct out of these special theories a general i. e. totalizing theory. This totalizing tendency was most obvious to the layman in the totalitarian political systems such as fascism but that was only the roughest manifestation of a tendency throughout the sciences and not just within political science. Of course, the abuse of science is one reason for scepticism toward science. However, the fact a tool can be used or abused is no argument against the existence of that tool. In all events, the attempts at developing general, relativized theories of the sciences in the last century can be commitment to exposing ‘the artificial emergence of metaphoric abstraction and of the conceptual universal from the real of particularity and heterogeneity’.” Robert Post, Post Modern Temptations (Book Reviews), 120 Yale J.L.&H. 394 (1992). 7 For an introduction to Aristotle’s dialectic see: Stanford Encyclopedia of Philosophy, Aristotle’s Logic (2004), at: http://plato.stanford.edu/entries/aristotle-logic/. 8 Professor Kennedy kindly makes almost his entire corpus publicly available: see, http://duncankennedy.net/home.html.

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clearly seen. Einstein’s special and general theory of relativity is just one example. John Maynard Keynes’s General Theory of Employment, Interest and Money is another.9 Freud too attempted to develop a general theory of psychology.10 In law this was seen in the General Theory of Law and State developed by Hans Kelsen.11 The trend is even easier to spot when one notes these attempts at universalizing theories generally developed out of relativistic perspective. Of course, most of these attempts at universalization collapsed back into the special theories from, which they sprang. Perhaps this failure of universalization is part of why there is scepticism in U.S. law theorization toward the idea of the scientificity of law?

II. Borrowing Methods, Observations, and Analogies from Natural Sciences The study of law is scientific in the sense that legal science borrows from methods and observations of the natural sciences. In the natural sciences one formulates a hypothesis, tests it, and thereby affirms or refutes it through experimentation. This method of developing and verifying hypotheses is applicable to the study of law because legal propositions are predictions of consequences to the occurrence of conditionals (e. g., if you rob, then you will be punished).12 We can form a hypothesis about law and then test it, normally the verification being via statistics from other human sciences.13 The scientific method of forming and testing hypotheses is perfectly applicable to the study of law. 9 John Maynard Keynes, The General Theory of Employment, Interest and Money http://www.marxists.org/reference/subject/economics/keynes/general-theory/ (1936). 10 Sigmund Freud, The Ego and the id. (Das Ich und das Es, 1923); Civilization and Its Discontents (Das Unbehagen in der Kultur, 1930). 11 Hans Kelsen, General Theory of Law and State, Union NJ: The Lawbook Exchange, Ltd. (1999). 12 “The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.” Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 29. 13 “. . . the really creative legal thinkers of the future will not devote themselves . . . to the taxonomy of legal concepts and to the systematic explication of principles of ‘justice’ and ‘reason’ buttressed by ‘correct’ cases. Creative legal thought will more and more look behind the pretty array of ‘correct’ cases to the actual facts . . . will make increasing use of statistical methods in the scientific description and prediction of judicial behavior”. Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 192.

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Law can also be scientific in that legal science can draw from the observations of that field Foucault called human sciences.14 We see legal science borrow observations from other sciences today most clearly when law draws on economics for guidance in determining norms. When economists note that an increase in the price of a good tends to reduce the demand for that good law can reliably use that fact in e. g., tax law.15 Likewise, the statistical observations of demography on life expectancy16 also present, like the monetary observations of economics, benchmarks against, which the validity of a law or the law’s finalities can be determined. Richard Posner incidentally is the best example of the use of economic analysis in law,17 though I found his earlier work reductionist: justice and wealth are not identical. Justice does not, and ought not,18 recreate the market, fortunately, since a pure market would allow sale of heroin and murder-for-hire. Happily, Posner, like Hayek, seems to become wiser with years. In his earlier works Posner had not seemed to appreciate Aristotle’s point that money is a means to the end of the good life but not the end of life itself.19 14 Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, New York: Pantheon (1970). 15 E. g., Excise taxes increases price and therefore reduce demand. Consequently overtaxing reduces the amount of tax the state takes. This fact explains the error in much left redistributionist policy. Confiscatory taxation is generally bad for the economy, yet capitalism features regular cyclical downturns resulting in war. That’s the conundrum. 16 E. g., when one notes the difference in global life expectancies one quickly realizes efforts to end human suffering must focus on the Third World. 17 See, e. g., The Economics of Justice (1981). 18 “Without a frank facing of these and similar questions, legal reasoning on the subject of trade names is simply economic prejudice masquerading in the cloak of legal logic. The prejudice that identifies the interests of the plaintiff in unfair competition cases with the interests of business and identifies the interests of business with the interests of society, will not be critically examined by courts and legal scholars until it is recognized and formulated. It will not be recognized or formulated so long as the hypostatization of ‘property rights’ conceals the circularity of legal reasoning.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 179. 19 “. . . we all want happiness. And happiness, I am sure from having known many succesful men, cannot be won simply by being counself for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those, which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimps of its unfathomable process, a hint of the universal law.” Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 43.

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Scientificity in law also results from the fact that we can make use of analogies from observations and theories in the other sciences.20 All the sciences, both natural and physical, borrow from each others’ observations: the demonstrated propositions of one science are often taken as a starting hypothesis in another. Thus there was a tendency throughout the twentieth century toward general theories and relativization: we saw the general theory of relativity in physics,21 the general equilibrium theory in economics,22 the general theory of law and the state23 and most likely parallels could be found in other fields as well. This idea of adopting analogical ideas from other sciences is also seen in the study of law in the U.S.,24 even by persons who do not claim to be legal scientists.25 The dialectic between the various sciences, both human and natural, clearly augments the validity of the observations of all the sciences. Legal science can clearly use the scientific method26 of formulating and testing hypotheses,27 taking into considerations factual observations and predictions of the other human sciences and drawing analogies from other sciences in the study of law. Hypotheses are verified by comparison between the hypothesis and material reality. Where there is a high correlation between the hypothesis and observed facts we can consider the hypothesis tentatively confirmed. Of course, in science nothing is ever final. Any theory is open to refutation if adequate facts are presented to demonstrate the theory under refutation does not correspond to the observed facts of the 20 “Lukacs showed analogies across the whole range of ‘bourgeois thought,’ from physics to economics to art. The Rise and Fall tried to show a similar analogical pattern within ‘bourgeois legal thought’.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xvii. 21 Einstein, A. (1961). Relativity: The Special and General Theory. New York: Crown. ISBN 0-517-02961-8. 22 John Maynard Keynes, The General Theory of Employment, Interest and Money http://www.marxists.org/reference/subject/economics/keynes/general-theory/ (1936). 23 Hans Kelsen, General Theory of Law and State, Union NJ: The Lawbook Exchange, Ltd. (1999). 24 “The model for this process was bricolage as described in the first chapter of Claude Levi-Struass’ The Savage Mind” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xv. 25 Duncan Kennedy, A Semiotics of Legal Argument, in Collected Courses of the Academy of European Law, Volume Ill. Book 2, 309, 357. Kluwer: 1994. First published in Volume 42 of the Syracuse Law Review, at p. 75. 26 Bacon, Francis, Novum Organum (The New Organon), 1620. Bacon correctly emphasizes the experimental method but wrongly rejects the dialectic and is for that reason the source of the limitations in Anglo-Saxon thinking to empiricism. 27 Henri Poincaré, Science and Hypothesis. London: Walter Scott Publishing (1905).

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world.28 Thus, observation of new data or development of a new and more parsimonious theory must be taken into account to modify any scientific theory. Karl Popper argues, I think rightly, that scientific propositions are the as-yet-unrefuted tentative best-evidence observations of the material world.29 I. e. we never have certain knowledge, merely a best approximation of a hypothesized truth – and the consequences, which flow therefrom (successful – or unsuccessful – prediction and explanation). But this “procedural” sense (i. e. scientific procedures) is not the only sense in, which we can speak of a science of law. There is also a substantive aspect of legal science. Law is a science in the dialectical sense, as any observation of the dialectic of plaintiff and defendant (thesis and antithesis) before the judge (synthesis) should show.30 However, legal sciences are dialectical not nomothetical – and that may be the real source of the scepticism in U.S. law scholarship to the idea of the scientificity of the study of law. What does that mean?

III. Human Sciences are not Nomothetical Nomothetic sciences present statements, which for all observed phenomena have always been the case and thus are presumed to hold true in future cases until refuted. The statement that water freezes at zero degrees Celsius at one atmosphere of pressure is an example of a nomothesis. Water has always frozen under those conditions and we assume, probably rightly, ceteris paribus, it always will. The natural sciences are nomothetic. Human sciences, unlike natural sciences, are generally not nomothetic. This is because people, unlike rocks, have willpower. Premises and consequences of human sciences are not necessary and inevitable. Rather they are merely likelier than not. Even though human sciences are not nomothetic they are sciences because they are dialectical. The human sciences are developed using practical reasoning. Propositions of the human sciences are probabilistic, so statistical reasoning is often important to human sciences. Human sciences can and should ask, for exam28 See, e. g., Karl Popper, Science: Conjectures and Refutations (1957), available at: http://cla.calpoly.edu/~fotoole/321.1/popper.html. 29 Karl R. Popper, “Science as Falsification” in Conjectures and Refutations (1963), available at: http://www.stephenjaygould.org/ctrl/popper_falsification.html; Also see, Thomas Hickey, History of Twentieth-Century Philosophy of Science by Thomas J. Hickey at www.philsci.com. 30 See, e. g., Henry Prakken, Giovanni Sartor, The Three Faces of Defeasibility in the Law, 17 Ratio Juris 118–139 (2004) (considering the dialectic of plaintiff and defendant before a judge).

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ple, whether war is likely to follow economic depression (it is) and, statistically, how likely a war is to follow an economic depression (likelier than not, but not every time). That is, though human sciences are generally probabilistic they are nonetheless capable of quantification and formalization and can serve as the basis for valid reproducible predictions. Human sciences are not nomothetic; rather they are probabilistic and dialectical.

IV. Human Sciences are Dialectical No one realistically disputes the idea of the possibility of natural sciences, even in the age of relativity and quantum uncertainty, despite the logical possibility of solipsism, because natural sciences are nomothetic. Yet, many academics in the human sciences in the English speaking world are at least sceptical about the human sciences.31 Aristotle long ago addressed just the problem of whether and how human sciences are possible. As so often the case he reaches a magistral solution.32 Aristotle’s answer to the question of whether and how human sciences are possible was to develop the idea of dialectical reasoning,33 already present in Heraclites,34 into a scientifically verifiable – and not merely contemplative – discipline. Dialectics in the case of Aristotle simply means the comparison of two partially accurate competing ideas to form out of them a third idea, which is even more correct since it partakes of the correct portions of the two incomplete views. For example, if we each observe a tree but from different positions and compare our perspectives we can construct a better model of the tree. That is dialectics – and the neo-feudalists and scientific socialists fought the world’s bloodiest conflict from 1941–1945 over whether dialectics were merely individual or also social, so understanding it seems to be vital to human survival. In human sciences, Aristotle argues that the opinions of experts, those who regularly work in the field, are the ones that matter most. Coke echoes this idea when he talks of the idea of natural reasoning (practical reasoning – phronesis)35 and legal reasoning (a particular sort of theoretical reason31 Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, New York: Pantheon (1970). 32 See generally, Aristotle, Posterior Analytics, available at: http://classics.mit. edu/Aristotle/posterior.html. 33 On the Dialectic see: Aristotle, Topics; http://classics.mit.edu/Aristotle/ topics.html. 34 Heraclitus, Fragments, http://ratmachines.com/philosophy/heraclites/; Howard Ll. Williams, Hegel, Heraclitus, and Marx’s Dialectic. Harvester Wheatsheaf 1989. 256 pages. ISBN 0745005276. 35 “The reason of the law is the life of the law; for though a man can tell the law, yet if he know not the reason thereof, he shall soone forget his superficial

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ing).36 Aristotle is also clear – we obtain the most accurate picture of human affairs by comparing the opinions of experts with each other to develop the most accurate view that incorporates and verifies the views of those scientists. Strictly speaking this is opinion (doxa)37 – of experts – of what is most likely and not knowledge (episteme) of what must be and cannot be otherwise. Still, the predictive conclusions of dialectical expert opinion are more than roughly accurate and are certainly more accurate than anything random. For example, ceteris paribus, if we print a lot of fiat currency that will cause inflation with attendant higher prices and uncertainty, which will increase short term consumption and reduce long term investment, resulting in reduced employment and reduced GNP. Of course one can – and human scientists such as economists do – dispute the exact quanta of trends such as inflation triggered economic contraction.38 Aristotle’s dialectic is not the only view on dialectics. As mentioned, Heraclites was possibly the first dialectician. Taoism too displays some principles of dialectics but in an idealist form.39 Let’s look at principles of dialectics to understand the distinctions between Taoism, Heraclites, Aristotelian, Hegelian, and Marxist dialectics.

knowledge. However, when he findeth the right reason of the law, and so bringeth it to his natural reason, that he comprehendeth it as his own, this will not only serve him for the understanding of that particular case, but of many others; for cognitio legis est copulata et complicata; and this knowledge will long remaine with him.” Coke, Institutes, Section 183b. 36 “Ratio est anima legis; for then are we said to know the law, when we apprehend the reason of the law; that is, when we bring the reason of the law so to our owne reason, that wee perfectly understand it as our owne; and then, and never before, we have such an excellent and inseparable propertie and ownership therein, as wee can neither lose it, nor any man take it from us, and will direct us (the learning of the law is so chained together) in many other cases. However, if by your studie and industrie you make not the reason of the law your owne, it is not possible for you long to retaine it in youre memorie.” Coke, Institutes, Section 395a. 37 Aristotle, Rhetoric, http://classics.mit.edu/Aristotle/rhetoric.html. 38 Phillip Cagan, “The Monetary Dynamics of Hyperinflation,” in Milton Friedman (Editor), Studies in the Quantity Theory of Money, Chicago: University of Chicago Press (1956). 39 E. g., “So it is that existence and non-existence give birth the one to (the idea of) the other; that difficulty and ease produce the one (the idea of) the other; that length and shortness fashion out the one the figure of the other; that (the ideas of) height and lowness arise from the contrast of the one with the other” Tao Te Ching 2, available at: http://www.sacred-texts.com/tao/taote.htm. Many other examples could be readily found.

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1. Union of Opposites The union of opposites is one principle of dialectics.40 Any opposite is only known in relation to its opposing pole. This means we cannot really define or understand light without also understanding and defining darkness. This is not however to say that light is darkness though light and darkness are opposite poles of a single duality. 2. Struggle of Opposites Heraclites was famous for his dictum that all is struggle.41 That is, for Heraclites, opposites are not only united, they are united in struggle. In Marx of course the idea of struggle is applied to class – opposing classes are in conflict.42 This is where Aristotle and Marx diverge. Aristotle’s dialectic is a dialogue between experts to try to obtain the best possible approximation of truth. Marx’s (and Hegel’s) dialectic is a social and historical phenomenon, wherein competing ideas (Hegel) or groups (Marx)43 struggle against each other and through their mutual transformation by that struggle evolve into something higher. The war of 1941–1945 was the worst ever but the world that emerged hopefully learned from that experience and attained a higher level of organization. That’s progress.

40 See, e. g., Hector Sabelli, The Union Of Opposites: From Taoism to Process Theory, 15 Systems Research and Behavioral Science 429–441 (7 Apr 2000). 41 Heraclitus, Fragments, http://ratmachines.com/philosophy/heraclites. 42 “Classical legal thought was a way of understanding the whole American legal system. Its context was the first protracted period in America of the kind of economic and class conflict that had characterized the Western European countries during the period of rapid industrialization. The issues involved were the concentration of industry and finance combined with “cut-throat competition”; the struggle between the farmers and the railroads; the struggle between unions and employers over working conditions and wages; and the relation of state to federal governments in the regulatory process.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850– 1940, 3 Research in Law and Sociology 3, 7 (1980). 43 “In its rational form it is a scandal and an abomination to the bourgeoisie and its doctrinaire spokesmen, because it includes in its positive understanding of what exists a simultaneous recognition of its negation, its inevitable destruction; because it regards every historically developed form as being in a fluid state, in motion, and therefore grasps its transient aspect as well; and because it does not let itself be impressed by anything, being in its very essence critical and revolutionary.” Karl Marx, Capital, vol I (Harmondsworth, 1976), p. 103 (Afterword to the second German edition of Capital volume I).

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3. Each Opposite Holds the Seeds of its Opposite Another principle of dialectics is that each opposition contains within it the seeds of the other pole. That is, an opposite, according to dialectics, contains the principle of the opposition. It’s often said in this regard, inaccurately, that objects contain within them the seeds of their own destruction. That shorthand expression of the idea is only partly accurate. It is true that all creation is also destruction of the prior existing state. However, dialectical materialism argues that transformations result in a higher state of organization, that the new state resulting from a dialectical transformation is more organized and superior to the prior existing state. Thus, a more accurate shorthand would be that objects carry within them the seeds of their own transformation. 4. Transformation of Opposites into each other Through Struggle Opposites are not only united in struggle they also can transform into each other because they carry within themselves the seeds of their own transformation. Cold things may get hot or vice verse. Parents die, yet give birth to children who evolve forward to a higher level of civilization, even evolving into different more survivable species, or die out. In law this plays out, for examples, in the idea of the struggle between two branches of government or two conceptions of how to govern. That is, the dialectical method of thought can be applied to any pair of contradictions we consider. In Duncan Kennedy’s concept of Classical Legal Theory (CLT) (late 19th /early 20th century legal thought) CLT first struggled with and then replaced pre-classical theory but then in turn struggled with and was replaced by social views of law.44 The easy formula is thesis-antithesis-synthesis. Out of the struggle between two forces a new third force is formed, which 44 “I am speaking of across-the-board changes in the way legal reasoning operated. During the period 1850–1900, as the Classical subsystem expanded, there was a general increase, and since about 1900 we have experienced a general decrease, in the felt operativeness of constitutional and doctrinal principles. With the disintegration of Classicism, there has been something close to a disappearance of an experience that appears to have been common at the turn of the century: that of the compulsion by, which an abstraction dictates, objectively, apolitically, in a non-discretionary fashion, a particular result. As a consequence, there are claims to an objective basis for judicial review, and to an objective basis for innovation in private law, that seemed perfectly plausible during the period of the broadening and tightening of the Classical schema, but seem anti-democratic or merely naive in these days of its decadence.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850– 1940, 3 Research in Law and Sociology 3, 21 (1980).

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incorporates the key aspects of each of the struggling forces. Of course, every act of creation is also a destruction of the prior existing state. However, in dialectics the new state created through synthesis of opposites in struggle is at a higher level of organization. In his writing, Duncan Kennedy describes an idea called “nesting” which he borrowed from Claude Levi-Strauss.45 “Nesting”, like dialectical materialism, explains that an idea evolves by struggling and replacing an earlier oppositional thought46 yet contains within it aspects of the earlier thought.47 Levi Strauss really seems just to have taken a temporal historical view of dialectics, the resolution of the struggle of opposites via dynamic synthesis into a third term.48 Of course, calling the transformation of conflicting dua45

“Levi-Strauss comments: ‘It will be seen that restricted exchange, the “closed” form of exogamy, is logically closer to endogamy than the “open” form, generalized exchange’. . . . It seemed to me, as an amateur left-wing jurisprude in 1970, that the Hart & Sacks Legal Process materials of 1958 represented the current liberal orthodoxy, and played a role in legitimating the passive response of academics and judges to the ‘crises of the time’. In a paper critiquing those materials, I argued that they were but the latest in a succession of responses to attacks on the distinction between legislation and adjudication. Each attack had managed to discredit an earlier version of the distinction, but had led to a new version of similar structure. My diagram was utterly contextual, but turned out (to my surprise and delight) to look very like the Levi-Strauss prototypes described above:” Duncan Kennedy, A Semiotics of Legal Argument, in Collected Courses of the Academy of European Law, Volume Ill. Book 2, 309, 359. Kluwer: 1994. First published in Volume 42 of the Syracuse Law Review, at p. 75. 46 “ ‘Nesting” is a name for this phenomenon: the system is organized around an opposition (here, public vs. private); the opposition then reappears within one or both terms of the initial ordering (here, e. g., contract vs. tort). The notion of a fractile order is analogous, as is the move in Classical rhetoric called ‘chiasmus’ but I encountererd this way of understanding a socially constructed order in the later chapters of The Savage Mind”. Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xx. 47 “ ‘Nesting’ is my name for the reproduction, within a doctrinal solution to a problem, of the policy conflict the solution was supposed to settle.” Duncan Kennedy, A Semiotics of Legal Argument, in Collected Courses of the Academy of European Law, Volume Ill. Book 2, 309–344. Kluwer: 1994. First published in Volume 42 of the Syracuse Law Review, at p. 75. 48 “The third element in the proposed semiotics of legal argument is ‘nesting’, or the reproduction of particular argumentative oppositions within the doctrinal structures that apparently resolve them. This idea owes a lot to the basic realist pedagogical technique of presenting the student with a series of hypotheticals that cause him or her to produce contradictory arguments over a sequence of cases. However, I also borrowed it quite directly from C. Levi-Strauss’s The Savage Mind,31 in the ambiguous mode of bricolage.” Duncan Kennedy, A Semiotics of Legal Argument, in Collected Courses of the Academy of European Law, Volume Ill. Book 2, 309, 357. Kluwer: 1994. First published in Volume 42 of the Syracuse Law Review, at p. 75.

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lities by that conflict into a third new and higher reality that retains elements of the old reality as well “nesting” would be more acceptable or comprehensible to some persons than the equivalent Marxist term. 5. Dynamic Change Another principle of dialectics is that everything is constantly changing, that the universe is not a static fixed thing but rather that there is constant motion. Again, this can be traced back to Heraclites and is subsumed into the aphorism that one cannot step twice into the same river.49 6. A Long Series of Quantitative Changes Leads to a Sudden Qualitative Change Change, in the dialectical view, follows causal laws. Change arises out of the contradiction of opposites. Further, state changes are rapid. A long series of quantitative changes leads to a sudden qualitative state change. The obvious example in politics is revolution. 7. The Importance of Dialectics for Science Human sciences are possible because of the dialectical method. Any one individual observes a given set of experiences. However, when individuals compare their experiences they can corroborate or contradict each other. This incidentally is just one of the reasons that the individualist method is fundamentally flawed. Individualism is also flawed because it’s the set-up for post modern errors. Truth is independent of the observer, and thus truth is independent of identity. Post modern identity politics is fundamentally flawed for that reason. Truth is truth no matter who says it – but that’s not what post-modernists believe.50 The effort to give a voice to the voiceless does not have to block the search for truth – in fact it should help fulfil it. Dialectical comparison is also intergenerational. Thanks to writing and reading, we are able to pass our knowledge from generation to generation. No other species can pass complex scientific knowledge of tool-making 49

Cratylus 402a = DK22A6. Professor James Boyle, Universalism, Justice and Identity Politics: From Political Correctness to Constitutional Law (Duke Law School: 2000), at: http:// www.law.duke.edu/boylesite/identity.htm (Describing the debates over identity politics and political correctness as turning around the question of the existence of a universal and objective identity). 50

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from generation to generation even if other species such as cetaceans and primates are capable of speech and abstract thinking. This comparison of sense experiences and the construction of common understandings therefrom is dialectics. For Aristotle, the dialectic that mattered most was the comparison of the ideas of experts, but indeed he would argue that all knowledge about social reality is dialectical. The dialectical method also allows us to obtain an ever more exact description of observed events, and an ever more precise prediction of future hypothesized events. Dialectic, from the Aristotelian perspective, is an individual endeavour, a comparison of social realities but from the individualist perspective. The dialectic of Hegel, Marx and perhaps also Heraclites is the comparison of different social realities but from a group perspective. That is, their dialectic is an abstraction carried one level further. However, Marx’s dialectic is materialist since it always remains linked to the material world and is thus capable of verification (or falsification). Hegel’s dialectic in contrast is sufficiently abstracted as to be dualist, epistemologically speaking. Hegel is speaking of the development of concepts so abstracted as to be independent of society. Marx in contrast is describing concepts, but the concepts he is describing are linked to a given historical era, a given social class. Both Marx and Hegel can be criticized for being so abstract as to be dealing in non-verifiable propositions in practice. However, at least in theory one could verify or at least refute Marx’s dialectic. In all events, even the most sceptical toward the idea of “dialectic” can see how the dialectic as described by Aristotle is a necessary method to overcome the problem of individual perceptions, which are by nature imperfect and limited, being both fallible and incapable of considering all experiences. One person can only see so much, even when they decide to compare opinions and ideas of others. The question for the dialectician is whether Aristotle is right, that the dialectic that matters is the comparison and exchange of expert opinion, or whether the dialectic matters not only to expert scientists but also to ordinary people in everyday life.51 The optimistic, hopeful answer – which also answers to the problems of truth described herein – is that dialectics is for everyone. Aristotle was more correct when he said that man is a rational52 social53 animal 51 Remember here that Aristotle clearly did not think slaves mentally capable of theoretical logic: slaves were capable of practical reasoning but did not partake of rationality. Aristotle regards the slave as only capable of apprehending but not forming ideas – in other words he thought they were stupid and inevitably so. Aristotle, Politics, Book I, Part 5, Para. 3 (c. 350 b.c.), available at: http://classics.mit. edU/Aristotle/politics.1.one.html; Also see, Aristotle, Politics, 1255 a 1 (slaves are slaves by their nature). 52 “Now, that man is more of a political animal than bees or any other gregarious animals is evident. Nature, as we often say, makes nothing in vain, and man is the

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and who inevitably desires knowledge54 than when he described some men as natural slaves and limited therefore to practical reasoning and incapable of theoretical reasoning. We are always and must always be comparing and contrasting our ideas with others to synthesize, out of two different partially correct views a third view, which more closely and accurately approximate the material facts – the competition of a thesis with its own antithesis leading to a synthesis of the correct parts of both competing views into a third more accurate view than either of the opposing theses in isolation. That is the nature of progress, the nature of science, and it is a social process, not merely a reflection in a description of sensate experience but also a construction constrained by comparison to contain all observed realities of all persons and/or groups in the dialectical process.

V. Object of Study The Law can also be scientific with regard to the object of study. Law does not exist in a vacuum. Professor Duncan Kennedy thinks law is autonomous55 but I disagree. Law is not an autonomous discipline.56 Rather, legal only animal whom she has endowed with the gift of speech. And whereas mere voice is but an indication of pleasure or pain, and is therefore found in other animals (for their nature attains to the perception of pleasure and pain and the intimation of them to one another, and no further), the power of speech is intended to set forth the expedient and inexpedient, and therefore likewise the just and the unjust. And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like, and the association of living beings who have this sense makes a family and a state.” Aristotle, Politics Bk. I, Part 2 (ca. 350 b.c.). 53 “. . . when several families are united, and the association aims at something more than the supply of daily needs, the first society to be formed is the village. And the most natural form of the village appears to be that of a colony from the family”; Aristotle, Politics Bk. I, Part 2 (ca. 350 b.c; “When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life.” Id. 54 Aristotle, Metaphysics, available at: http://www.4literature.net/Aristotle/Metaphysics/ (“All men by nature desire to know.”). The slave’s natural curiosity however would be limited to those practical affairs within her mental reach. 55 “. . . understanding of the dilemmas of modern legal and political theory. We can understand these only if we recognize and confront the existence of legal consciousness as an entity with a measure of autonomy. It is a set of concepts and intellectual operations that evolves according to a pattern of its own, and exercises an influence on results distinguishable from those of political power and economic interest. The autonomy of legal consciousness is a premise; yet that autonomy is no more than relative. Not only the particular concepts and operations characteristic of a period, but also the entity that they together constitute, are intelligible only in terms of the larger structures of social thought and action.” Duncan Kennedy, Toward An Historical

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science is one part of an interdependent whole (human sciences) that includes philosophy, history and economics most directly and then sociology and anthropology less directly, and then the natural sciences least directly. Thus, there is something to be said both for the diverse undergraduate educations and possible post JD educations of law professors in the United States. However, currently, the use of the other human sciences in legal science is not at all organized and thus guaranteed to succeed only randomly, if at all. That is unmethodical, haphazard and this lack of systemization explains in part the lack of scientificity in the study of law in the U.S.

VI. Analytical Method: False Dichotomies The analytical method consists of breaking things down to their constituent elements to understand those first. One can use the analytical method to expose false dichotomies.57 For example natural law and positive law are not in any necessary conflict.58 The supposed contradictory nature of positive and natural law is a false dichotomy. Aristotle and Hobbes alike make clear that positive and natural law play complementary roles in law. Similarly, Hume’s is/ought distinction59 is a false dichotomy. Any ought statement can be recast as a conditional “is” statement.60 That usually reUnderstanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850–1940, 3 Research in Law and Sociology 3, 4 (1980). 56 “To justify or criticize legal rules in purely legal terms is always to argue in a vicious circle.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 177. I don’t go quite this far, it’s entirely possible to have a purely legal argument that is not semantically empty due to metalanguage (arguments about how to argue). However, if law were autonomous then that would make circular, conclusory and empty arguments likelier. 57 Eric Engle, Knight’s Gambit To Fool’s Mate: Beyond Legal Realism, 41 Val. U.L. Rev. 1633, 1682 (2007). 58 Eric Engle, Alvarez-Machain V. United States And Alvarez-Machain V. Sosa: The Brooding Omnipresence Of Natural Law 13 Willamette J. Int’l L. & Disp. Resol. 149, 183–190 (2005). 59 See David Hume, A Treatise of Human Nature 469 (L.A. Selby-Bigge & P.H. Nidditch eds., Oxford Univ. Press 2d ed. 1978) (1739–40). 60 “Hume’s rejection of ‘ought’ as a special moral category is far more revolutionary than his rejection of the traditional concept of causal necessity . . . One can no longer chant the refrain that ‘ought is not deducible from is’ because this presupposes the very thing that is to be proved, and it is the very thing that Hume rejects, namely the existence of peculiarly normative entities. In place of a normative conception, Hume holds the view that ethics is an empirical science.” MacIntyre, at 488.

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quires the explicit declaration of various enthymemes, i. e. the exposition of the unstated suppositions that usually underlie “ought” statements.61 The distinction of “natural” and “artificial” may also be a bit of a false dichotomy at least in that humans are a part of nature, a natural occurrence. Again, precision in our use of terms avoids confusion. I have not explored this third dichotomy in depth though I have explored the other two at least to my own satisfaction.

VII. Synthetic Method: Discover Latent Hidden Similarities in Apparently Different Institutions by Abstraction and Comparison Dialectical synthesis is the creation of a third more correct position out of two competing positions, the attainment of a higher level of organization, a third more advanced state from two less organized conflicting states. Dialectical synthesis has long been understood as one outcome of the conflict of relative oppositions, the other being elimination of one of the poles in an absolute opposition. Duncan Kennedy has an interesting method, which he apparently picked up from Holmes.62 Essentially, he seeks to synthesize general principles by induction from observed cases and to seek out examples of the opposite conflicting principle.63 That is, he tries to adduce hidden similarities between two different fields united by a common general organizing principle or divided by conflicting general organizing principles. The search for hidden similarities and a higher state of organization is what makes his heuristic interesting and a contribution to science despite his phenomenology and attendant lack of scientific rigor – he does not go out and try to get enough evidence or to conclusively prove any claims of an actual material link between his abstracted ideal types and reality, and so he’s more Hegelian than Marxist in that respect.

61 Eric Engle, Knight’s Gambit To Fool’s Mate: Beyond Legal Realism, 41 Val. U.L. Rev. 1633, 1639–1641 (2007). 62 “The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends, which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.”, p. 41. 63 “What I have done is to abstract these typical forms or rhetorical set pieces and attempt to analyze them.” Duncan Kennedy, Form And Substance In Private Law Adjudication, 89 Harv. L. Rev. 1713 (1976).

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VIII. Teleology of Legal Science 1. Structuralist Approach A structuralist approach to law will see the law – and this at least since Justinian’s Institutes – as consisting of four main trunks: public law, private law, and national law and international law.64 However, I do not study law using this structure even though it is the overwhelmingly dominant way of viewing law in the civilianist countries. Rather than a structuralist approach I take a teleological and functionalist approach.65 Rather than looking to what the law is in terms of its structure I look at what the law does and what it is intended to do.66 This examination of the ends of law is teleology.67 2. Goal of Science – the Good Life (Aristotle,68 Maslow69) Teleology is the innate plan within an object of its full development. For example, the teleology of an acorn is an oak tree.70 The end of human life is not merely survival but self actualization, the full development of the 64 “The study of law consists of two branches, law public and law private. The former relates to the welfare of the Roman State; the latter to the advantage of the individual citizen. Of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome. . . . The civil law of Rome, and the law of all nations, differ from each other thus. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. Those rules, which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all people alike, and are called the law of nations. Thus the laws of the Roman people are partly peculiar to itself, partly common to all nations; a distinction of, which we shall take notice as occasion offers . . . Our law is partly written, partly unwritten, as among the Greeks. The written law consists of statutes, plebiscites, senatusconsults, enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law.” B. Moyle, The Institutes of Justinian, trans. 3rd ed. (Oxford: Oxford University Press, 1896), pp. 3–5. 65 Not due to anglo-saxon exceptionalism. Roman law is one of the roots of the common law (ius commune). Q.v., “perverting influence of Roman models.” Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 41. 66 See, e. g. Transcendental Nonsense and the Functional Approach. 67 Aristotle, Metaphysics, Book Theta (translated with an introduction and commentary by Stephen Makin), Oxford University Press, 2006. 68 Aristotle, Politics Bk. I, Part 2 (ca. 350 b.c.). 69 Abraham Maslow, A Theory of Human Motivation, Psychological Review 50 (1943):370–96. 70 Aristotle, Metaphysics, 1049b18–19; 1050a9–17.

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best of human capacities and thereby the attainment of the good life.71 The State, as seen by Aristotle, is the means to attain the end not only of survival but of the good life.72 The Aristotelian vision of the State is radically different from the Hobbesian or Marxian view. For Hobbes the end of the state is merely the self preservation of the State’s subjects.73 Hobbes’s view of the State is overly defensive and merits criticism.74

IX. Hume, Weber and Kelsen Sceptics toward the idea of the scientificity of law may be reacting to the ideas of Hume75 (and misinterpretations of Hume)76 which in turn were ta71 Aristoteles, Nikomachische Ethik, Buch I, Kap. 2, 3, 5. Available at: .; See Aristotle, Politics, Book I Part II (translated by Benjamin Jowett) (350 B.C.), available at: . 72 Aristotle, Politics, Book I Part II (translated by Benjamin Jowett) (350 B.C.), available at: http://classics.mit.edu/Aristotle/politics.Lone.html. 73 “The liberal state, in the conception we are concerned with here, exists solely for the purpose of preventing a disastrous tailspin into civil war. This objective the liberal state achieves by imposing a compromise on citizens each struggling for a maximum share of scarce satisfractions. Thus the state is conceived as an intervenor in an already established situation, that in, which each individual engages in an unrestrained struggle for what he thinks valuable.” Duncan Kennedy, Legal Formality 2 J. Leg. Stud. 351, 366 (1973). 74 “But if everyone shares the objective of preventing civil war, why do we need the state to do it for us? The answer of the theory is that the state of nature is a situation in which no one can trust anyone else. What defines the individual human is the indeterminacy and arbitrariness of his will in the pursuit of value.” Duncan Kennedy, Legal Formality 2 J. Leg. Stud. 351, 366 (1973). 75 David Hume, A Treatise of Human Nature 469 (L.A. Selby-Bigge & P.H. Nidditch eds., Oxford Univ. Press 2d ed. 1978) (1739–40). “In every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary way of reasoning and establishes the being of a God. or makes observations concerning human affairs when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ‘tis necessary that it shou’d be observ’d and explain’d; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. However, as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou’d subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv’d by reason.” 76 “Hume’s statements about moral sentiments are confused with his statements about moral judgments. It is this confusion, which largely accounts for the misinter-

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ken up by Weber and Kelsen. Weber (supposedly a post structuralist)77 drawing from misinterpretations of Hume,78 argued that social science ought to be neutral79 and value free.80 In Weber’s defence, one can argue that a value free and neutral science would be more objective (and thus better) than one laden with unexpressed value judgements. However, the argument that social science should be “neutral” (i. e. biased in favour of the existing order) invokes a value judgment, which Weber claims to reject. The fact that the argument against normativity is itself normative should tip the reader off that something is amiss in Weber’s arguments against normative science.81 The fact is the supposedly neutral discourse Weber wished pretation of (I-O). That (I-O) is not concerned with moral judgments but with moral sentiments is best seen in two ways. First, the entire section deals with a single problem: the attempt to show that moral distinctions or sentiments are perceived not as relations of ideas but as impressions. Second, the conclusions of (I-O) all deal with the analysis of moral distinctions as impressions. Since (I-O) concerns moral sentiments and not moral judgments, we may inquire into the cause of the confusion. At least one reason is that the paragraph is occasionally read or quoted in an incomplete manner . . . Once we accept the view that moral distinctions are impressions, we must also accept the fact that we can make inferences about such distinctions and even infer their existence from accompanying circumstances.” Nicholas Capaldi, Hume’s Rejection of ‘Ought’ as a Moral Category, 63 J. PHIL. 126, 135–36 (1966). 77 Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1044 n. 31 (2004). 78 “Starting from his three critiques of the social approach (no is-to ought, no supra-individual social telos, “relative autonomy” of law), and working from the categorical scheme laid out above, Weber sharply distinguished three types of questions that the socially oriented critics habitually blurred.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1042 (2004). 79 “Whatever our particular political perspective, we all tend to approach the problem through the distinction between value-neutral and value-laden teaching. We begin with that distinction because almost all of us – whether liberal or radical – have a sense that our own teachers in law school wanted to be ‘value neutral’, and that value-neutral teaching in this system is implicitly biased to the right. Teaching, which sets itself up as ‘value neutral’ is really right-wing teaching.” Duncan Kennedy, Liberal Values in Legal Education 10 Nova Law Journal 603, 608. [Emphasis added.] 80 Duncan Kennedy, Liberal Values in Legal Education 10 Nova Law Journal 603, 610. 81 “Weber is famous for his insistence on a sharp distinction between the sociological is and the ethical or political ought. From The Meaning of ‘Ethical Neutrality’ in Sociology and Economics and ‘Objectivity’ in Social Science and Social Policy’ through Science as a Vocation, Weber argued that the very maneuver that defined the social – that is, the claim that it was possible to go from an analysis of

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to create82 necessarily favours the status-quo by not putting it into question, indeed by denying the very tool, which would most effectively put the status into question – a normative scientific analysis. Weber was dishonestly stacking the deck against social change,83 and quite consciously did so arguing for a value rationality84 and contrasting that with a should be underthe modern social mode of interdependence, a fact, to the progressive reform agenda, an ought, could not be done. However, this is only the beginning of his divergences from the method of the socially oriented critics of CLT. Weber is also famous for his opposition to ‘emanationism,’ that is, to the idea that transpersonal entities like ‘Geist’ or ‘humanity’ can figure plausibly in historical or sociological explanation. This is his explicit critique of Hegelianism and of the German historical school. He applied it fully to law. However, Factor and Turner have persuasively argued that, in the development of the sociological categories of action and domination we will present in the next subsection, Weber was systematically and carefully reworking the superficially similar categorical scheme of Rudolf von Ihering, the German founder of the social approach. The point of the reworking was to purge any suggestion that there are ‘social purposes’ or a telos to social development, or an evolutionary logic that can simultaneously explain and justify legal change.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1033–1034 (2004). 82 “Finally, it is familiar that Weber was at once an appropriator and a strong critic of Marxist approaches to economic history. What he most strongly criticized was the mono-causal approach of the ‘base/superstructure’ distinction, in, which legal categories reflect the mode of production and legal rules serve the interests of the ruling class. This kind of criticism applies mutatis mutandis to the social approach, for, which law reflects society, albeit sometimes with tragic lags, and ought to serve a depoliticized and universal interest in social development. For Weber, law is, as we might now put it, ‘relatively autonomous,’ and also ‘constitutive,’ rather than merely reflective.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1037 (2004). 83 “Closer to home, both the substantive rationality of welfarism (i. e., Enlightened Despotism) and natural law, whether elaborated deductively from individualist premises or as a socially oriented substantive doctrine, have proved failures at the task of providing operative techniques for the development of a legal order adapted to the needs of the administration of justice in a centralized bureaucratic state. That was the whole point of his narrative of the displacement of natural law by positivism. LFR was, in this view, a big advance, but, more important, it was all that was left of the ambitions of legal rationalism as a general phenomenon.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1052 (2004). 84 “Value rationality means that the actor has identified a rule that applies to the situation and proceeds to obey that rule, experienced as internally binding, based on some mode of legitimation that might be religious, ideological, philosophical, ethical, or whatever. The key to the conduct is that the actor obeys without considering the consequences. Once authoritatively established, the rule is the rule, and obedi-

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stood substantive rationality85 – that really just parallels the form-substance split86 critiqued by postmodernist theorists elsewhere.87

C. Language, Logic, and Law88 I. Logic89 According to Coke, Law is the summation of reason,90 the realization, the perfection, of rational action91 Cicero agrees:92 The life of the law has ence is the only consideration. Action in obedience, say, to one of the Ten Commandments, or to one’s conviction that ‘the right to control your body is absolute,’ is value-rational.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1038 (2004). 85 “In LFR, when the lawfinder acts, by deciding the case or making his academic interpretation of what the law ‘is,’ his action is always ‘value rational’ in Weber’s usage. On the basis of the logical analysis of the meaning of the extant valid norms, he chooses a norm, without regard to the social consequences of his choice, and then applies it to the facts at hand, again without regard to the social consequences. This contrasts sharply with substantively rational legal thought. There, the judge may be, contrary to what some commentators suggest, acting in a value rational way (say, by applying religious commandments such as ‘thou shalt not kill’ or absolute natural rights such as ‘respect private property’). However, the legal actor is also substantively rational if what he does is to identify a set of societal goals, or a set of partial political objectives of the ruler, and then craft his rule to maximize their accomplishment through a situation-sensitive balancing test.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 10341 (2004). 86 Consideration and Form, 41 Columbia L.Rev. 799 (1941). “Disentangling the ‘formal’ and ‘substantive’ elements in the doctrine of consideration.”, Kennedy & Fisher, p. 221. 87 Duncan Kennedy, Form And Substance In Private Law 89 Harv.L.Rev. 1685 (1976). 88 “The inadequacies of deductive legal reasoning are well established” Kennedy & Fisher, p. 210. Oh really? 89 “The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in, which they are most at home. The language of judicial decision is mainly the language of logic. . . . Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgement”. Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 34. 90 Lex est summa ratio. Coke, Institutes Section 62a. 91 “And the law, that is the perfection of reason, cannot suffer anything that is inconvenient.” Id. Section 97b.

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been reason.93 However, the reason of the common law is a special kind, it is a practical reasoning (phronesis) acquired through years of diligent study.94 Reason is the motive spirit of law, and one must understand the rationale behind the rule of law to appreciate and apply that rule.95 This is what is meant by natural law reasoning. For the natural law rationalist the law is the instantiation in practice of theoretical logic. Consequently, understanding some problems of contemporary logic is useful and interesting to understanding whether legal science is possible and why others might have thought otherwise due to an overbroad reading of some logical puzzles, which will now be addressed. 1. The Paradox of Crows96 & The Problem of Causality Paradoxically, what we call causation is really only a hypothesis97 (just as is either solipsism or anti-solipsism).98 If causation does not exist how could science exist? In fact the existence of the outside world and causation 92

“Est quidem vera lex, recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium jubendo, vetando a fraude deterreat, quae tamen neque probos frustra jubet aut vetat, nec improbos jubendo aut vetando movet.” (True law is right reason in accord with nature). Cicero, De Republica, 51 b.c. 93 “for reason is the life of the law, nay the common law itself is nothing else but reason, gotten by long study, observation, and experience, and not of every man’s natural reason; for, Nemo nascitur artifex. This legall reason est summa ratio.” Coke, Institutes, Section 97b. 94 “The reason of the law is the life of the law; for though a man can tell the law, yet if he know not the reason thereof, he shall soone forget his superficial knowledge. However, when he findeth the right reason of the law, and so bringeth it to his natural reason, that he comprehendeth it as his own, this will not only serve him for the understanding of that particular case, but of many others; for cognitio legis est copulata et complicata; and this knowledge will long remaine with him.” Coke, Institutes, Section 183b. 95 “Ratio est anima legis; for then are we said to know the law, when we apprehend the reason of the law; that is, when we bring the reason of the law so to our owne reason, that wee perfectly understand it as our owne; and then, and never before, we have such an excellent and inseparable propertie and ownership therein, as wee can neither lose it, nor any man take it from us, and will direct us (the learning of the law is so chained together) in many other cases. However, if by your studie and industrie you make not the reason of the law your owne, it is not possible for you long to retaine it in youre memorie.” Coke, Institutes, Section 395a. 96 See, Karl Popper, The Problem of Induction (1953, 1974), available at: http:// dieoff.org/page126.htm. 97 David Hume, An Enquiry Concerning Human Understanding, Section VII, Part I, section 48. (1777), available at: http://www.gutenberg.org/dirs/etext06/ 7echu10.txt. 98 Rene Descartes, Meditations On First Philosophy (1641), available at: http:// oregonstate.edu/instruct/ph1302/texts/descartes/meditations/meditations.html.

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are both indemonstrable axioms. You cannot prove I’m not a hallucination anymore than I can prove you are. However, the existence of indemonstrable axioms and stipulated (usually indemonstrable and always undemonstrated) postulates has been part of science at least since Euclid.99 So this apparent argument is a non-starter. Nevertheless Hume’s arguments on causation seem correct and are worth exploring so as to be aware of this potential critique and it’s answer, that every system of thought relies ultimately on indemonstrable axioms and that those should be limited to ones which sane people do not disagree about. Hume demonstrates that what we call “cause” is really only a habitual association of temporal sequences.100 For example, suppose that we observe that every crow we have ever seen is black. Out of this observation we assume that the next crow will be black. This assumption appears practically warranted by the fact that each and every crow observed till now has indeed been black. However, there is no theoretical reason to assume the set of crows is bounded: the future is not the past and there is no theoretical reason that a white crow might appear or even one that were invisible or a chameleon crow. However, we assume that until proven otherwise that every future crow will be black. That assumption is a pragmatic solution to a theoretical problem. We can and should make that assumption because it works in real life. The problem of the crows can be used to clarify the paradox of causality. How is assuming the future crows’ blackness different from assuming that hitting a ball always causes the ball to fly in the same direction it was struck until air friction and gravity cause it to land? It is not. The transformation of the concept of causation from the well developed Aristotelian categories of teleological, formal, material, and efficient cause101 to Hume’s habitual association (100% past correlation plus a presumption of 100% future correlation) leads to the conclusion that the Aristotelian categories are a useful yet indemonstrable model that works in practice, but remains only a hypothesis in theory, because of Hume’s insight. Essentially, for Aristotle, causation has several different meanings. Each of the terms used in Aristotelian causality maps onto an equivalent concept in tort law.102 Formal cause is observed pattern that is presumed by reasonable persons to apply also to potential future observations (for example in99

Euclid, Elements. 4 David Hume, The Philosophical Works 30 (Green & Grose eds., Scientia Verlag 1964). 101 Aristotle, Physics Book II Section 3, Metaphysics Book V Section 2. 102 See, e. g., State ex rel. Sayad v. Zych, 642 S.W.2d 907, 916 (Mo., Dec 03, 1982). 100

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ertia indicates all objects moving in one direction will continue in that same direction is one meaning of cause). Formal cause corresponds to the cause of action itself (whenever your action invades my rights my equal and opposite reaction may enforce them against you via an action for trespass on the case). The material cause is the actual body, which instantiates the formal cause – i. e. the material cause is the “but for causality” (which is synonymous with “cause in fact”). Material cause is that material object, which was necessary for the formal cause (in law, the now outmoded form of action replaced by free form pleading) to manifest in the real world. The efficient cause (in legal terms the proximate cause)103 was that causal event closest in time to the event triggered by the cause. And the teleological cause is the tendency toward, which the cause directs itself – the inner logic and natural tendency, so to speak, of the object. Teleological cause is used to interpret statutes.104 The teleology of a boy is a man; the teleology of an acorn is an oak tree, the teleology of a law is justice. These four meanings of causality find themselves expressed in the law as the formal causes of action, the idea that the law must observe certain procedural formalities to be brought to bear in the interests of legal certainty and predictability.105 At the opposite end, teleological interpretation tells us to look at the goals and purposes of the law. Meanwhile but-for cause (cause in fact) is a synonym for the material cause, and proximate cause corresponds nicely to efficient causation. Hume’s critique of causality does not invalidate science is an example of science, for we have compared the material reality to our hypothesis and made the hypothesis more accurate. Science compares hypotheses with observations in the real world and when the hypothesis contradicts the observed reality we must modify the hypothesis. This criterion of the connection between reality and thoughts about reality is the essence of scientific 103 See, e. g., Robinson v. City of Detroit 613 N.W.2d 307, 330; 462 Mich. 439, 484; State Farm Fire & Casualty Co. v. Slade, 747 So.2d 293, 313 (Ala. 1999). 104 “. . . law itself is a teleological endeavor, and that its purpose is to guide people as they go about their daily activities. As such, the law should be clear and understandable, for how can people follow its dictates if it is not? If you take away that clarity to a sufficient extent, it is proper to question whether you are dealing with law at all, as opposed to raw power. In that regard, see, Lon J. Fuller, The Morality of Law (Yale University Press, 1964).” 21. U.S. v. General Dynamics Corp., 644 F.Supp. 1497, 1500; 33 Cont.Cas.Fed. (CCH), p. 75,070 (C.D.Cal.,1986). 105 “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, – and nothing else. If you commit a tort, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference.” Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 32.

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as opposed to speculative or poetic thought. Hume’s point about causality – that what we consider a necessary cause-effect relation is really only a hypothesis implying that the idea of causality is an axiom, which is by its nature indemonstrable is well taken does not change the fact that causality is a very useful hypothesis. Statements of scientific fact are falsifiable attempts to describe some fact of the material world. Heuristic fecundity is a basic rule of scientific thinking: we reject as heuristically unprofitable presumptions that lead to unverifiable or falsified propositions or to needless multiplication of entities because heuristically infertile presumptions lead nowhere. Likewise, we retain presumptions that lead to verified or at least verifiable propositions. That is a derivative of Occam’s rule of parsimony: scientific thought should try to make as few presumptions as possible to explain as much of reality as possible; intentional entities ought not be multiplied beyond that needed to explain observed phenomena. By excluding supernatural wills106 embodied by angels from descriptions of physical phenomena a great deal of confusion was purged from thought not just of the relations of physical bodies but also about relations of social bodies. In 1400 one could seriously consider Adam’s sovereignty over Eden and that hypothesized relation to the relation of the King of France and his realm. By 1800 such a speculative move would have struck anyone literate as fanciful, a pious lie meant to keep the people in line. Science allows one to point out pious frauds. David Hume’s point about causation is simply not fatal to science. Hume supposedly makes another move however and argues (according to certain interpreters, not including this author)107 that a statement of what ought to be cannot be inferred from a statement of what is.108 Even if that misinter106 “. . . the traditional supernatural approach to practical legal problems.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 176. Elsewhere however that theorist goes too far. 107 I’m not the only one to see this. In fact others even argue that Hume dovetails with Aristotle in the idea that human sciences are dialectical and probabilistic. “Hume’s point in the Inquiry, and in the ‘is-ought’ passage, if read in the light of his comments in the Inquiry, is not to deny that merit is cognitively derived from fact but to make sure that this derivation is not mistaken for deduction . . . The Inquiry, more so than the Treatise, shows Hume’s concern in this matter to be two-edged: to ward off the entrenched confusion of evaluative inference with demonstrative proof; and to show what cognitive procedure is instead . . . Hume’s point is that the facts as known are the basis, not of a formal, but rather of an experimental, proof” Werner David Falk, “Hume on Is and Ought”, Canadian J. Phil. 562–63 (1976). 108 Steven Hetcher, Climbing the Walls of Your Electronic Cage, 98 Mich. L. Rev. 1916, 1921–22 (2000) (Reviewing Lawrence Lessig, Code: And Other Laws

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pretation109 of Hume were correct that would not invalidate purely descriptive sciences. 2. The Correspondence Theory of Truth110 We perceive the external world, make observations, and compare our observations with others. This comparison of observations is the dialectical method described by Aristotle. The materialist world-view is the understanding that we perceive and experience the material world and that our ideas are constructed from those perceptions and experiences.111 Materialism argues that our ideas are merely a reflection, and an incomplete and imperfect one, of the external world. Our sense perceptions are limited and imperfect, and thus our ideas, as a reflection and construction out of our sense perceptions are also imperfect. We say a statement is “true” when the statement corresponds to some state of affairs in the material world or in the world constructed out of material experience. Truth statements are however always only approximations of the observed world because our perceptions are imperfect. However, we can make best-possible approximations of the reality, which we can always only partially apprehend. Thus, truth is a hypothesized reality the description of, which we can approach and approximate via observation and the dialectic. We can falsify some statements by comparison of the statement to the material facts it purports to describe. However, statements of truth are merely as-yet-unfalsified approximations. Since our senses are imperfect we can never attain ultimate truth. However, the hypothesis that truth exists is clearly much more useful operationally than the hypothesis that truth does not exist. This is true also Of Cyberspace (1999)). “Hume’s Law is sometimes stated as: An ought cannot be derived from an is. The proper conception of Hume’s Law, however, is that an ought statement cannot be derived merely from an is statement.” I go further and suggests that Hume was not saying anything more than one must make his ought statements known and not confuse them with his is statements. 109 “Hume’s attitude to induction is much more complex than appears in his more skeptical moments and is therefore liable to misinterpretation – his remarks on ‘is’ and ‘ought’ are not only liable to receive but have actually received a wrong interpretation.” A.C. Maclntyre, “Hume on ‘Is’ and ‘Ought,’ in The Is-Ought Question 485, 488 (W.D. Hudson ed., MacMillan 1969). 110 The Correspondence Theory of Truth, Stanford Encyclopedia Of Philosophy (2005), http://plato.stanford.edu/entries/truth-correspondence. 111 For a challenging introduction to the dialectical struggle between materialism and idealism go right ahead and see Mao Zedong, Dialectical Materialism (1938), available at: http://www.marxists.org/reference/archive/mao/selected-works/volume6/mswv6_30.htm.

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of the hypothesis of the existence of objective reality. We hypothesize that we are not solus ipse because a solipsistic hypothesis (the idea that I alone exist) as a heuristic fails quickly to yield any useful results – even if babies, and sometimes madmen, truly think they alone exist in the world and do not have the separation of self and other that the conception “external” and “internal” implies and that is the definition of religious ecstasy (ex-stasis). Thus, truths are not so much verified as they are still-not-falsified. The existence of truth is not conclusively proven; rather, its contrary is proven to be heuristically worse than useless. 3. Truth Functionality (Truth, Falsehood and Indeterminacy) A frequent problem in western thinking about truth is to assume that statements must be either true or false. However, “either true or false” is a false dichotomy. Formalization of truth as bivalent leads us to numerous paradoxes that plague philosophical binary logic because bivalence is inadequate to represent knowledge. Facts (and by extension assertions about facts) may be true, false, unknown, or unknowable. An unknown fact is either true or false, whereas an unknowable fact is neither true nor false. Statements with no truth value include prayers, commands, and certain paradoxes – this list is not necessarily exhaustive. Various paradoxes such as those of material implication show that binary logic is inadequate to describe reality. This is especially true for law since imperatives have no truth value and escape descriptions, which assume that all statements must be either true or false.112 The solution is not to try to get around the limited ability of binary logic to represent reality by subsuming probabilistic reasoning into theoretical reasoning by assigning probabilities a quasi-binary nature or by excluding probabilistic (practical) reasoning from logic. Aristotle himself notes that some utterances have no truth value. Yet, he goes on to develop a binary logic, which has since been refined and expanded dominates the discourse on logic. Willard Quine, like Aristotle, began his career by developing and using binary logic.113 However, the inca112

“A definition of law is useful or useless. It is not true or false, any more than a New Year’s resolution or an insurance policy.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 194. 113 Willard O.V. Quine, Methods of Logic, New York: Holt Rinehart & Winston (1950), pp. xi, 1, 220 “if we are to have a smooth logical theory we must fill such gaps, even though arbitrarily, in such a way that every statement comes to have a

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pacity of binary logic to address basic problems of logic can be seen in Quine’s treatment of paradox. For Quine, paradoxes are falsidical (a pseudo paradox, one, which is false and misleading), veridical (a true paradox, one, which leads to a shocking yet true conclusion) or antinomious. Let’s consider the following sentence: “This statement is false.”

Clearly, that statement purports to signify, self referentially, something about the truth value of the statement. However, that statement soon yields up a paradox: the statement is false if it is true, and is true if it is false. The statement is misleading – but it is not false. Nor is it true. It has no truth value. It’s an antinomy. Statements with no truth value are usually dismissed by logicians as being not-statements-at-all. However, the refusal to consider statements where the truth of the statement is unknown or unknowable is a serious limit for lawyers. We are often forced to reason either where there is no testimony or no reliable testimony. As jurists we must be able to address uncertain evidence. Existing formalizations of logic do not cover uncertainty adequately for jurists. Existing formalizations must however be our starting point because scientific progress results from current thinking taking into account the best of existing thought. The inadequacy of binary logic to completely explain reality is also reflected in Gödel’s incompleteness theorem114 which implies that indemonstrability is a part of the order of things. If incommensurability of the root of two, the fact that pi has never been found to terminate, the incompleteness theorem and various paradoxes lead us to conclude that the unknown and perhaps even the unknowable are parts of reality then why should we try to model reality using a bivalent logic? As jurists, dealing with reality and not mere speculation we should not. However, these limitations on existing formalizations of logic merely imply that we need to rethink logic, not that there is some unarticulated flaw in the deductive method in law.

truth value. Thus it was that we have conventionally extended the concept of the conditional . . . An extension in the same spirit is needed now on the score of singular terms that do not name.” But this arbitrary creation of a coherent formal system denies the use of such logic to govern speech acts. Thus I prefer to use instead ternary logic. 114 Kurt Godel: Über formal unentscheidbare Sätze der Principia Mathematica und verwandter Systeme, I. Monatshefte Fuer Mathematik Und Physik 38, 173–98 (1931), translated in van Heijenoort: From Frege to Gödel (Harvard Univ. Press 1971), available at: http://home.ddc.net/ygg/etext/godel/.

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4. Logical Implication: Ternary Logic115 In a truth functional logic (where all statements must be true or false) the binary truth table for implication in mathematical binary logic is that an implication is only false if it contains a true major premise and a false minor conditional, i. e. pq 00 01 10 11

p=>q 1 1 0 1

However, that mathematical formalization leads to counterintuitive results when restated linguistically.116 If I say “Whenever it rains, the ground is wet. It is not raining.”

The truth table would hold true for either the conclusion “THUS it is raining” or “THUS it is not raining”. However, those conclusions, without further information, cannot be known from the predicate “It is not raining”. If the usual binary logic is not in fact adequate to accurately express what is really going on with a basic linguistic and philosophical concept such as implication (“if . . . then”) we are entitled to ask just what implication (“if . . . then”) means. Just what do we mean when we say “if p is true then q is true” and how should we represent that if we are given a three valued logic where a variable can either be true, false, or unknown? “If . . . then” represents the idea that two things are associated such that the former (p) always implies the latter (q) and the latter (q) at least sometimes implies the former (p) – that is our common understanding. Less ob115 To my knowledge Occam was the first to study ternary logic William of Ockham, 1967–88. Opera philosophica et theologica. Gedeon Gál, et al., ed. 17 vols. St. Bonaventure, N. Y.: The Franciscan Institute. 116 “Philosophers will object to the above definitions of disjunction and negation on the ground that what we mean by these notions is something quite distinct from what the definitions assign as their meanings, and that the equivalences stated in the definitions are, as a matter of fact, significant propositions, not mere indications as to the way in, which symbols are going to be used. Such an objection is, I think, well-founded, if the above account is advocated as giving the true philosophical analysis of the matter. However, where a purely formal purpose is to be served, any equivalence in, which a certain notion appears on one side but not on the other will do for a definition.” Bertrand Russell, The Principles of Mathematics § 19, The Propositional Calculus (1903).

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viously but just as true “if . . . then” also means that the absence of the latter (q) implies the absence of the former (p). If a ternary logic is required to analyze statements, which are true, false or unknown what would the logical functor of implication look like? Our ternary logic has the values 0 (false), 1 (true) and 2 (unknown). How does “if . . . then” play out in a ternary truth table? I would propose the following truth table for ternary logic. A ternary truth table has 9 possible values (000 . . . 222 in base 3 notation). What values ought to be assigned to describe the relation if p then q (p = > q)? pq 00 01 02 10 11 12 20 21 22

p 2 2 1 0 1 0 2 2 1

=>q (we can conclude nothing about b when a is false) (we can conclude nothing about b when a is false) (we can conclude nothing about b when a is false) (false – we know that b must be true when a is true) (true; – we know that b must be true when a is true) (false – we know that b must be true when a is true) (we can conclude nothing about b when a is unknown) (we can conclude nothing about b when a is unknown) (we can conclude nothing about b when a is unknown)

In my representation 2 represents “unknown”, not “sometimes true, sometimes false”. For example the statement “this sentence is false” has no truth value. It is not sometimes true, but other times false. Nor is it X% likely to be true and 100-X% likely to be false. This is a fine distinction but one that I think necessary to make and one that I hope will avoid some of the paradoxes, which have plagued binary representations of implication. It is the reason that I think a ternary system of logic will prove more adequate than binary logic. However, because “unknown” and “unknowable” are two different things even a ternary logic will eventually prove inadequate to cover all possible cases. However, developing the concept of ternary implication is a necessary first step to a valid quaternary logic. The usual assignation of ternary values, reproduced below, are different from my representation. This is because truth functional ternary logic is usually modelled after truth functional binary logic – and thus reproduces the same paradoxes of material implication. Note also that some ternary logics are trying to represent a probabilistic situation where it is known that all values are either true or false but some values are unknown. In those logics the third value represents a 50% likelihood and/or that at some times the third value is true, yet at other times it’s false. In contrast, I am not trying to represent either probabilistic reasoning or reasoning that is temporally constrained. Rather, I am trying to represent reasoning where a term is not

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known, or cannot be known. Strictly speaking a quaternary logic is needed. However, I think we can safely subsume “unknowable” and “unknown” at present to grasp the problem and I also believe the development of a quaternary logic would be rather straightforward. The non-truth functional truth table is somewhat different from truth functional ternary truth tables of implication. The truth functional truth table of ternary implication looks like this: ab = > 001 011 021 100 111 122 202 211 222

That representation is inadequate to solve the problems of language reflected in paradoxes of material implication. It just reproduces the paradoxes of material implication but with more interpretations namely: pq p = > q 21 1

In contrast, I am trying to illustrate the fact that from an unknown antecedent in an implication we can determine neither the other term in the implication nor the validity of the implication itself. This is very different from truth functional representation. A truth functional perspective on ternary implication reproduces the same paradoxes of material implication despite having the third value needed to reduce those paradoxes to common sense when expressed linguistically. So I took the alternative perspective. This at first gave me trepidation. So, I decided to try to determine whether I might solve the problem by transposition. In binary truth functional logic we can express an implication using a negation and a disjunction. That is, p implies q is equivalent to not p or q: p = > q < = > –p v q

Thus, we can check our work. - vel pq 101 111 121

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000 011 022 202 211 222

This recasting of implication results in the same truth table and seems intuitively correct. Either it is not raining or it is wet outside (and possibly both). Yet, why then does an intuitive approach to implication lead to a different truth table than this? The divergence is due to confusion of necessary truths, contingent truths and logically consistent statements. Truth functional interpretations blur the distinction between possible and necessary truths. We are interested in understanding both when something is necessarily true and when something is possibly true and that is why non-truthfunctional approaches are necessary to recast linguistic propositions “if then” into forms that do not lead to paradoxes. Let us consider the problem in terms of natural language in the attempt to understand the subject as it really is. After all, we are developing not a pure formal system but rather a model of reality, which should have explanatory (predictive and post-dictive) power. We must first distinguish affirmation and negation (yes or no) from truth and falsehood. Sometimes 0 and 1 are used to represent false and true, yet at other times they are used to represent “no” and “yes”. Often the distinction is unimportant but sometimes it is very important. Confusing “truth” and “affirmation” or confusing “falsehood” and “negation” do not appear to be the central problem here, but such a potential confusion is related to the source of our difficulty. The real problem is not confusing true-false with yes-no. The real problem is the confusion of statements about necessary truths on the one hand and statements of contingent truths on the other. Statements such as p = > q can be: (1) necessarily true (2) necessarily false (3) contingent – possibly true, or possibly false. This can be illustrated by a careful exposition of p = > q as follows. We will illustrate p = > q using the common sense example “if it is raining then it is wet”. Out of the statement “If it’s raining then it’s wet” we can in fact only make two queries with three possible states each and the corresponding (answers) indicated in parentheses:

C. Language, Logic, and Law I. Is a) b) c)

it wet? It is raining. Is it wet? (Yes) It is not raining. Is it wet? (Unknown) It is unknown whether it’s raining. Is it wet? (Unknown)

II. Is a) b) c)

it raining? It is wet. Is it raining? (Unknown) It is not wet. Is it raining? (No) We do not know whether it’s wet. Is it raining? (Unknown)

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Now let us look at all the possible answers to these queries in terms of truth or falsehood. Given: p = > q (i. e. if it is raining then it is wet) the following statements are possible. “It’s raining and it’s wet.” (necessarily true) “It’s raining and it is not wet.” (necessarily false) “It’s raining and it’s unknown whether it’s wet.” (necessarily false) “It is not raining and it’s wet.” (possibly true, thus unknown – yet logically consistent.) “It is not raining and it is not wet.” (possibly true, thus unknown – yet logically consistent.) “It is not raining and it is not known whether it’s wet.” “We do not know if it’s raining but it’s wet” (possibly true, logically consistent) “We do not know if it’s raining but it is not wet (possibly true, logically consistent) “We do not know if it’s raining and we do not know if it’s wet.” (possibly true, consistent)

We shall call necessary truths true statements (1), self contradictory premises necessary falsehoods (0), and contingent statements, statements, which are possible but not necessary truths as indeterminate (2). Given: That 0 represents “no”, that 1 represents “yes” and 2 represents “either no or yes but unknown whether no or yes is the case”. CASE I (only necessary truths considered as valid): Is the statement p = > q necessarily true, necessarily false, or unknown? pq 00 01 02 10 11 12

p=>q 2 2 1 0 1 0

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20 2 21 1 22 2

CASE II (necessary and possible truths considered as valid): In this case we test the variables for mutual consistency. Here, only if the variable are inconsistent would we say that the statement as whole is untrue. pq p = > q (i. e. yes, or no: could “if p then q” be true, with the values of p and q given) 00 1 01 1 02 1 10 0 11 1 12 2 20 2 21 1 22 2

As jurists we wish determine what is and also what might be. Case I seems much more useful since it concerns things, which must be the case and not things, which may be the case. There are fewer “known” possibilities in Case I but those known possibilities are completely dispositive. Supposedly, deduction is somehow capable of abuse. I have tried to show how formalization of mathematical logic may have distracted jurists and why linguistic representations of philosophical logic are more adequate to the law than mathematical representations as well as how to represent language mathematically in a better format using ternary logic. Logic, like any tool, can be used or abused. However, the past failings of formal logic do not to me seem insoluble. 5. Normative Inferencing Another supposed limitation on logic in law is the notion, entirely false in my opinion, that normative inferencing be somehow impossible. I wish to argue that it is possible to form logically valid normative syllogisms of practical reasoning and that these forms will parallel the well known theoretical syllogistic forms such as modus ponens and modus tollens. David Hume is sometimes thought, erroneously, to argue that normative inferencing be impossible.117 In fact however all he asks is that whoever 117 “Hume’s point . . . is not to deny that merit is cognitively derived from fact; but to make sure that theis derivation is not mistaken for deduction.” W. D. Falk,

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wishes to infer norms explicit their presumptions and bear the burden of proof of their argument. All Hume is saying is that: a) Whoever wishes to prove a normative syllogism bears the burden of proof. b) No normative syllogism should have any enthymematic statements.118 It may be useful to understand that ought statements are modals. Examples of modal verbs include ought, must, should, might, could. Modal statements imply a value judgement and a command and thus have no truth value since imperatives have no truth value. Modal verbs are used to describe irreal and hypothetical situations and commands. Irreal conditions also have no truth value. So some, probably all, modal statements have no truth value. However, modal statements can be recast as conditional statements. This recasting forces us to express enthymematic presuppositions in concrete terms. These conditionals can have a probabilistic truth value as a prediction or a logical truth value after the fact. If every past instance of the observed contingency has preceded the observed effect then we presume such will hold true in future cases. I shall – at this juncture – only seek to understand how to do normative inferencing using modus ponens. If we develop a valid method for inferring from and to norms using modus ponens then that method would also apply, ceteris paribus, to modus tollens and other propositions of theoretical logic. Modus ponens is the general syllogism: If A then B A Therefore B

How does modus ponens look with “is” and “ought”? Ought(x) Not x Therefore do(x)

This looks terrible. First, we have an ought-statement and that makes everyone else nervous. Second we have an imperative, which has no truth “Hume on Is and Ought”, in Ought, Reasons, And Morality 562 (W.D. Hudson ed., MacMillan 1969). 118 Holmes too warns against enthymemes: “Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgement”. Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 34.

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value. Third the syllogism is temporal and Aristotelian theoretical logic is not temporal. Imperatives have no truth value and are temporal since they imply two states, time 1: not(x) and time 2: (x). No wonder people think normative inferencing is somehow impossible. It flies in the face of theoretical logic – because normative inferencing is in the field of practical logic (phronesis). Practical logic (phronesis) allows probabilistic reasoning – unlike theoretical logic, which is confined to describing necessary and possible truths and falsehoods. The normative syllogism provided as an example is also tautological. But, though one might think that a problem, it is not: any valid syllogism is a tautology and states only something already implicit in the premises (ampliative induction in contrast and analogical arguments are extensive). Does making the normative syllogism exemplified here more abstract help our understanding? Let’s try. More abstractly then, the above syllogism is an example of this form: – Ought (general statement). – Specific statement that indicates the non-fulfilment of the general statement. – Do (other specific statement). In fact, abstracting here does not help. In fact, it looks even worse since we could be introducing most anything as the conclusion. Perhaps the opposite tack, making it more concrete, would help? As we know, Aristotle has two logics: theoretical logic (scientific knowledge) – and phronesis – practical reasoning (common sense). So let’s first call normative syllogism’s what they are – practical syllogisms, and then see if we can coax them into the form of a valid theoretical syllogism in the form of modus ponens. To make it more concrete we recast the ought-statement as a conditional is statement. We can describe three types of statements that I find useful to understand normative inferencing: statements of fact, commands, and conditionals. Imperatives have no truth value. However, conditional statements do have a probabilistic truth value. Note that formal theoretical logic, according to Aristotle, deals with necessary consequences whereas practical logical deals with contingent consequences i. e. probabilities. Any command can be recast as a conditional in the forms of – if compliance then reward – or – if noncompliance then punishment. We can distinguish between commands, which do not have a truth value but, which do imply an (often enthymematic) conditional, conditional statements in the form of if – then and facts. So for example

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– You must obey the police officer. Really is saying. – If you do not obey the police officer then you may go to jail or pay a fine and possibly both. Thus, our ought statement becomes an is statement: If (not x) then (do x) Not x Therefore do(x)

That looks like something we can work with. We have major and minor premises, which are capable of being true or false with an imperative conclusion. My hypothesis is that all normative syllogisms with a conditional major premise and a declarative minor premise with an imperative conclusion are well formed. My hypothesis is that modus ponens would not be the only valid form of a normative syllogism I expect modus tollens would also work and that each valid theoretical syllogism corresponds to a valid form of a normative syllogism. However, for now I wish only to describe the simplest valid form of a normative syllogism since the majority view seems to be that normative inferencing is somehow (how?) impossible. I do not need, at this point, to prove the form of all normative syllogisms (an eventual goal). All I must prove only that at least one form of normative syllogism is logically valid. And I think I have. Since we are working with practical logic (phronesis) let’s start by substituting real terms: If People Starve then I am less likely to Survive. I wish to survive. Therefore I must stop starvation (note the modal verb must). If there is a famine then people will starve. I must stop starvation. Therefore I must stop famine. Using irrigation and crop rotation prevents famine. I must stop famine. Therefore I must use crop rotation and irrigation.

Of course this is chaining of inferences, which is really just the law of transitivity for implication. I see no reason that transitivity would not apply in practical reasoning just as it does in theoretical reasoning. I think that this shows that Hume’s real issue with normative inferencing was not that he thought it per se invalid. Rather, Hume’s objection to normative inferencing was with the enthymemes that invalid normative inferencing often relies on and obscures. Normative inferencing with unexpressed enthy-

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mematic premises risks equivocation and can lead to confusion and obscures the initial axiological choice of the unexpressed implicit presumptions. This is where materialism as the basis of science becomes key. Human survival and well being is our teleology and is the standard for measuring axiological (moral) choice. Those things that further the survival of humans and the human species are good. Those things, which reduce our likelihood of survival are bad. One may call that a postulate however it’s also an inevitable and natural one since a species not selecting for survival will, eventually, go extinct. The fact that we may be on the road to extinction via nuclear war is to be remembered in this regard. While one may disagree with the initial choice of value it is entirely possible from a stipulated or agreed axiological premise to infer norms. A valid normative syllogism in the form of modus ponens must, like a valid theoretical syllogism, have a distributed middle. Thus: If I do not eat food then I will not survive. I wish to survive. Therefore I must eat food.

Note that while the normative syllogism has at least one modal statement that modal statement may either be a premise or a conclusion. In all the examples there is only one modal statement. In all events, the modal statement can be recast as a conditional “is” statement. Hume presents a trap for the unwary designed to evince enthymematic propositions.

II. Language 1. Language – The Arbitrary Character of Signs The idea that legal language be somehow indeterminate (an idea I clearly reject) may be due to the fact that semiotics has observed, at least since Ferdinand Saussure, that the pairing of signifier-signified is arbitrary. The significations attached to any given pairing of vocal sound and mental or physical object are socially constructed and not (leaving aside words that are soundalikes) in any sense objective. From this one could try to argue that signification is intersubjective because the choice of pairing of signifier (word) and signified (object) is arbitrary. For example the sound represented with “sa” in one language (French) means “his” and “her” (depending on context of the object, not the owner) yet in another language (Estonian) “sa” is the informal form of “you”.119 Most often, cognate words in Indo European lan119 I reject Chomsky’s idea of a universal genetic grammar. There are too many structural divergences. French has no cases whereas Estonian has 14. English has

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guages at least vaguely resemble each other. However, this resemblance is not considered to be rooted in the nature of the word but in the genealogy of the languages. Similarities among languages in their linkage of a given word and the object(s) it refers to become ever more tenuous as the languages are separated by space. However, this critique that language is an intersubjective representation, that the pairing of word and object120 is arbitrary,121 does not escape the point that the intersubjective symbol-system is used to represent an objective reality. Language is grounded to determinacy by its reference to material objects and experiences. So arguing that legal language is indeterminate due to the arbitrary character of the sign fails because, though signs are intersubjective conventions, they refer to objective reality. 2. Linguistic Determinacy and Law The problem of truth, its possibility and limitations, leads us to other less serious potential critiques of the scientificity of the law. It is nearly commonplace among post-modernist scholars to argue, wrongly, that language (and thus law)122 is somehow indeterminate123 and void of signification.124 future tenses but Estonian doesn’t. Indoeuropean uses prepositions, Uralic languages use post-positions (e. g., the lamp the table is on). German subordinates verbs, English doesn’t. Estonian has no gender, French does. German has a neutral gender, so does English, latin languages don’t. Russian has two infinitive forms, English doesn’t. Estonian does but whereas Russian infinitives indicate time Estonian infinitives indicate modality. Russian has particles, English doesn’t. Double negation is ungrammatical in English unlike French. Estonian has no word for he and she, only it, used alike for persons and things. English has only one word for “but” German and Estonian have two. Russian and Estonian have two words for now, though English can express “right now” or “now”. English has one word for “then” and “that” German has two. French adjectives precede nouns, generally, English adjectives follow them. English has undeclined articles, German articles decline, Estonian has no articles. French has two words for yes and two ways to say ok. 120 See, Willard O.V. Quine, Word and Object, The MIT Press (1960). 121 See Ferdinand De Saussure, Third Course Of Lectures On General Linguistics (1910), available at: http://www.marxists.org/reference/subject/philosophy/works/ fr/saussure.htm. 122 “. . . the traditional language of argument and opinion neither explains nor justifies court decisions.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 176. 123 “In the tradition of postmodern scholarship, critical jurisprudence engages in a deconstruction of the monolithic set of norms, rules, and institutions that constitute the domestic legal system. . . . The law is not pure; it is a socially constructed network of ‘prepackaged categories, clusters, reified systems.’ This movement has revealed the indeterminacy of law as well as the manner in, which power asymme-

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There are many ways, supposedly, that language can be indeterminate. Of course, if language were indeterminate than law would be impossible. Is language indeterminate? Can we show that language is determinate? If language is determinate how can we show that? (1) Language could be indeterminate because terms are mutually defined. This is an argument that language is circular.125 This seems appealing at first glance. However, some terms such as “blue”, “hot”, and “rough” are direct reflections of our sensate experience. These terms at least are determinate. Moreover: a) The more complex and abstract mediate terms are constructed out of the more concrete terms directly reflective of sensate experience. Language, including legal language,126 is thus not in fact circular because the more complex and abstract terms are constructions – dialectical syntheses in fact – of less complex and more immediate reflections of sensate experience. These referents ground even conceptual abstracts such as “three” (three what?) to the material world and thus make them verifiable or at least falsifiable as descriptors of reality. This enables the possibility of science. tries have marginalized and subordinated countless groups.” William J. Aceves Critical Jurisprudence and International Legal Scholarship: A Study of Equitable Distribution Col. Jnl. Trans’l Law 299, 310 (2001). 124 “Of course, it would be captious to criticize courts for delivering their opinions in the language of transcendental nonsense. Logicians sometimes talk as if the only function of language were to convey ideas. However, anthropologists know better and assure us that ‘language is primarily a pre-rational function.’ Certain words and phrases are useful for the purpose of releasing pent-up emotions, or putting babies to sleep, or inducing certain emotions and attitudes in a political or a judicial audience. The law is not a science but a practical activity and myths may impress the imagination and memory where more exact discourse would leave minds cold.”Frank, Transcendental Nonsense and the Functional Approach, 35 Columbia L. Rev. 809 (1935), in David Kennedy & William W. Fisher III The Canon of American Legal Thought 175. Princeton: PUP (2007). 125 And circularity is the essence of critiques of the possibility of legal reasoning: “To justify or criticize legal rules in purely legal terms is always to argue in a vicious circle.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 177. 126 But see, Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 178. (“The vicious circle inherent in this reasoning is plain. It purports to base legal protection upon economic value, when, as a matter of actual fact, the economic value of a sales device depends on upon the extent to, which it will be legally protected.”). But the critique that legal language can be circular or conclusory is not a statement that legal language is inevitably circular or conclusory.

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b) But language could still be indeterminate in that the set of potential future experiences appears unbounded. That is, the set of referents only appears bound and in fact is unbound and thus no description could ever be perfect. This is rather an argument of infinite regress. It is easily met as follows. i) Even though absolute truth would be impossible if the set of potential future sensate experiences were unbounded that would not change the reality that our efforts to reach truth are the best approximation of the truth we can approach. That is, the unbound character of sensate experiences as referents to a potentially unbound set of constructions out of those experiences does not change the fact that we can approach the truth. It merely reduces the degree to, which we can approach certainty, and in direct proportion to the open ended character of future sensate experiences. ii) Even though future sensate experiences are potentially unbound they do not in fact appear to be in fact unbound and can be treated, and are treated “as if” they were bounded. This is related to the problem of crows and is also related to the paradox of causality noted by Hume. 3. Interpretation and Argumentation If science, generally, is possible, and specifically legal science is possible what might it look like? Most of the legal controversies in the past century have been the pursuit of miscast controversies. The most obvious of the failed paths of research has been the entire “either positivism or naturalism” dichotomy in thinking of law. Positivism and naturalism are not necessarily mutually exclusive. In fact, the better view is to see positivism and naturalism as complimentary as Aristotle and Hobbes do. Most modern scholars seem to think that law must be seen either as positivist and scientific or naturalist and unscientific and that each category excludes the other. However, the suppositions that positive and natural law are mutually exclusive and that natural law is inevitably unscientific are wrong. Aristotle127 and Hobbes128 both make clear that posi127 Aristotle, Nicomachean Ethics of Aristotle 117 (D.P. Chase trans., Ernest Rhys ed., J. M. Dent & Sons Ltd., 1911), 105 (1920) (“Further, this last-mentioned Just is of two kinds, natural and conventional; the former being that, which has everywhere the same force and does not depend upon being received or not; the latter being that, which originally may be this way or that indifferently but not after enactment.”); “Now of Particular Justice, and the Just involved in it, one species is

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tive and natural law play complementary roles. For Aristotle and Hobbes some laws are positive and others are natural. Moreover, scientific theories of natural law are possible and that is one of the motives of this chapter, to explain how a science of law is possible. After all, if legal science were impossible then there would be no reason to critique unscientific varieties of natural law that ascribe to law some supernatural component.129

D. A Critical Response to Duncan Kennedy’s Theory of Argumentation I. The Death of Reason Narrative130 Let’s now take those lessons from the past and fast-forward to contemporary legal theory. Professor Duncan Kennedy argues, I think wrongly, for the that, which is concerned in the distributions of honour, or wealth, or such other things as are to be shared among the members of the social community (because in these one man is compared with another may have either an equal or an unequal share), and the other is that, which is Corrective in the various transactions between man and man.” (Distributional justice positive; corrective justice natural). 128 See Thomas Hobbes, Leviathan 91 (Richard Tuck ed., Cambridge University Press) (1996). “The right of nature, which writers commonly call Jus Naturale, is the liberty each man hath to use his own power as he will himself[ ], for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which, in his own Judgement and reason, he [ ] shall conceive to be the aptest means thereunto.”; “A law of nature (Lex Naturalis) is a Precept, or general Rule, found out by Reason, by, which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same: and to omit, that, by, which he thinketh it may be best preserved. For though they that speak of this subject, use to confound Jus, and Lex, Right and Law; yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear; whereas LAW, determineth, and bindeth to one of them: so that Law and Right, differ as much, as Obligation, and Liberty; which in one and the same matter are inconsistent.” 129 “The theory that judicial decisions in the field of unfair compettition law are merely recognitions of a supernatural Something that is immanent in certain trade names and symbols is, of course, on of the numerous progeny of the theoyr that judges have nothing to do with making the law, but merely recognize pre-existent ruths not made by mortal men. The effect of this theory, in the law of unfair competition as elsewhere, is to dull lay understanding and criticism of what courts do in fact.”, p. 178. Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007). 130 “That the Liberal ordering is ‘socially constructed’ is not to say that we can change it by recognizing it as such. The Rise and Fall’s [xxv] ‘death of reason narrative’ is that ‘our’ modern situation is one in, which we no longer believe that the structure mirrors reality and have concluded that from within it the best one can do

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idea of “the death of reason” in law.131 I am not entirely certain whether he accepts Aristotle’s idea that one must distinguish practical logic (phronesis – reasoning) from theoretical logic (formal logic – rationality) – though I think he does. Hume, in contrast, does not, and I disagree with Hume on this point. Since most of the realists’ complaints were directed to the supposed evils of formalism and since Holmes believed (I think wrongly) that the law was a matter of experience (phronesis) and not rationality (theoretical logic)132 the death of reason critique133 is really directed at the idea of theoretical logic (which is different from practical reasoning).134 However, I think the death of reason critique,135 whether directed against formal logic (rationality),136 practical reasoning (praxis)137 or both is not is balance conflicting considerations that reflect our contradictory ideas and emotions. This outcome is the result of the work of mutual destruction carried on by Liberal legal thinkers of all political persuasions as they ‘cleared the ground’ of their rivals before proposing their own versiosns of the project.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), pp. xxiv–xv. 131 “The death of reason narrative can be summarized in the phrase ‘we live in a post-classical age of disintegration.’“http://duncankennedy.net/legal_history/index. html#DRN. 132 “The actual life of the law has not been logic: it has been experience. The felt necessities of hte time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices, which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by, which men should be governed.” Oliver Wendell Holmes, “The Path of the Law” in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 126. 133 Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935). “That something is radically wrong with our traditional legal thought-ways has long been recognized.” in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 182. 134 John Dewey, Logical Method and Law, 10 Cornell L.Q. 17 (1924), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 123 (reason distinguished from rationality). 135 Supposedly, “the traditional language of argument and opinion neither explains nor justifies court decisions.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 176. 136 Holmes speaks for example of the “fallacy of logical form” Oliver Wendell Holmes, “The Path of the Law” in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 36. 137 “. . . practical reasonings . . . only approximations” John Dewey, Logical Method and Law, 10 Cornell L.Q. 17 (1924), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 124.

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particularly strong and generally not well thought out due to the lack of scientificity in American legal thinking. The essence of Kennedy’s death of reason critique138 is the idea that American legal theory in the early 20th century became incoherent. He is correct, the theoretical structure of American legal theory first imploded (positivism displaced natural law) and then disintegrated (positivism splintered into numerous competing theories). Naturalism, which had dominated legal thought for two millennia is, with the notable exception of Germany, nowhere to be seen today. Where I diverge with Kennedy is in my understanding of the sources of this strange inversion. The implosion followed by disintegration and reverberations directly tracks economic dislocations and the consequent wars capitalism unleashes whenever there is a depression. Sadly, war and economic depression are clearly positively correlated and theoretical ruptures always take place at such crisis points because it is exactly there that people are both driven to and willing to consider fundamental questions. Kennedy does not seem to see the theoretical transformations as tracking the external economic facts (two world wars, a global depression, and global U.S. hegemony). Instead, he seems to think the theoretical transformations were purely superstructural, i. e. ideological, and resulted from internal logical contradictions both in form (the structure of legal methods) and substance (warrants for a given legal methods). I disagree with that analysis because while there are clearly intra-elite dialogs within the superstructure of ideology that governs and rationalizes governance they do not predominate in the dialectic between the ideology of the governed on the one side and the productive forces of the governed on the other. In other words: economics directly influence legal structures. The productive economic base and the ideological descriptive superstructure are in a dialectical relation determined more often than not by the productive economic base and not by the rationalizations of the ideological superstructure. So I think the problem of the failure of legal reasoning in the United States is much deeper than Kennedy goes. In fact, I trace the problem in U.S. legal theory all the way back to 1776 (Adam Smith, Thos. Jefferson). It’s not just the issues of 138 Duncan Kennedy, Legal History: Introduction (ca. 2000), at: http://duncankennedy.net/legal_history/index.html#DRN “I see classical legal thought as critique and reconstruction vis à vis its predecessor, and the social as a critique and reconstruction vis à vis classical legal thought, and legal realism as a critique of the social followed by another reconstruction, with each stage representing a weaker version of legal reason. This is a ‘death of reason’ narrative because it holds out no hope that yet another critique will lead to a reconstruction that satisfies more than momentarily the hunger for uplifting meanings that is as prevalent in law as everywhere else.”

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the legitimacy and legitimation of judicial power. It’s even more fundamental. American legal theory has been atomist and individualist since at least 1776. However, economic interdependence rendered atomism139 and individualism dysfunctional. Consequently, early 20th century American legal theory became maladaptive because individualism and voluntarism were not responsive to human well being and survival. Kennedy sees the effect (market dysfunction leading to war) but does not trace it back historically far enough to understand the cause: atomistic individualism at and since the inception.140 Kennedy does not look at the economy as determinative of law. Instead he uses the terms of Claude Levi-Strauss. For Kennedy, the langue of legal reasoning no longer determines the parole of legal practice. Early 20th century American legal thought also collapsed into economic theories of law due to the abuse of deduction141 – a critique already made by Jhering and Geny – coupled with what, for Kennedy, is a pseudo scientificity about the study of law. Here too I decisively diverge from Duncan Kennedy. The failure of American legal science was not due to a failure of scientificity as a concept. Rather it was a failure to be consequent in one’s scientificity, to assess not merely Kelsen or Weber but also Hume, and then back further to Blackstone, Coke, Hobbes (whom Kennedy does analyze) and then further still to Aristotle (one can safely skip Plato and post modernists though for different reasons). Basically, American legal theorists did not run the assumptions of competing theories to ground because they believed there was 139 “. . . legal theorists in the classical tradition had sought to unify the common law in a formal structure by organizing doctrines substantively as deductions from a few basic principles – most significantly, the principle of individual autonomy (and its substantive corollary, a will theory of legal obligation) and the ‘police power’.” The Canon of American Legal Thought, edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 47. 140 Given the individualist bent of Amercan theory it isn’t surprising that the first critical efforts to change U.S. legal thinking focused on . . . the individual “character” of judges. Karl Llewellyn, Some Realism about realism – Responding to Dean Pound, 44 Harvard Law Review 1222 (1931), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 154 (“personality of the judge” an important predictor in legal decisions). 141 “The implausibility of LFR derived, in large part, from two “discoveries” (by, which word I mean to endorse them): First, the dynamism of the capitalist economy generated, constantly, increasingly, legal gaps or conflicts involving large economic and political stakes. Second, a large part of the body of norms that applied to economic and political life was judge made according to LFR, but had involved in its formulation the “abuse of deduction.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1067 (2004).

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no ground to run them to. Though I think Kennedy’s argument of the death of reason is wrong I also think it should be exposed because it’s only in understanding errors that we correct them. The most defensible view of Kennedy’s position would be to argue that since Gödel we know that for any formal system will contain true theorems that are nonetheless indemonstrable within its own terms. This is not however fatal to reason. Rather it shows us that the bivalent logic of Aristotle was not the way to go. We should understand that any statement may be true, false, unknown or unknowable. A ternary or quaternary logic is needed to accurately describe valid mental operations. Moreover one should not forget Tarski. Gödel’s more important theorem is that for any internally consistent recursive formal system powerful enough to describe the arithmetic of the natural numbers there will be true yet indemonstrable propositions about the natural numbers. Applied analogically as a heuristic for law, Gödel’s theorems warrant the hypothesis that, with respect to Gunther Teubner,142 no legal system can be truly autopoeitic. This is disappointing. Teubner’s143 argument for autopoeisis seemed to have solved a real problem. However, the hypothesis from the uncertainty principle as well as from the incompleteness theorem is that autopoeisis is doomed to failure due to the nonautonomous character of any formal system.144 Moreover, common sense tells us it is just not possible to effectively study law without resort to concepts from logic, economics, history, demographics and all the other human sciences. Legal science simply cannot be seen as an autonomous discipline though it is the master science of, which Aristotle speaks145 and is the per142 “The components of the legal system . . . are cyclically linked to each other in multifarious ways. Self-reference, paradox, and indeterminacy are real problems of social systems, not errors in the mental reconstruction of this social reality.” Teubner, Gunther ‘And God Laughed . . .’: Indeterminacy, Self-Reference, and Paradox in Law, Stanford Literature Review, Spring/Fall 1990, p. 23; Gunther Teubner, How the Law Thinks: Toward a Constructivist Epistemology of Law, 23 Law & Soc’y Rev. 727 (1989). 143 Professor Gunther Teubner (Universitaet Frankfurt am Main) kindly makes most of his English language scholarship publicly available at: http://www.jura.unifrankfurt.de/ifawz1/teubner/Person_englisch/PublikaEngl/index.html. 144 Functionalism quickly shows why law is not autonomous. Q.v., Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 183. (“functionalism represents an assault upon all dogmas and devices that cannot be translated into terms of actual experience.”). 145 Aristotle, Nicomachean Ethics, Book I Para 1 1094a (Politics a “master science” because it determines, which of the other sciences are to be studied and to what degree).

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fection (i. e. completion) of reason in law’s positive aspects and of rationality in law’s naturalist aspects. I do not think Kennedy is arguing from Gödel for the death of reasoning due to the incompleteness theorem because that argument also implies that law is not autonomous.146 I do not think Kennedy is trying to describe the idea that a formal system, to be complete, must inevitably also be heterological because he believes law to be an autonomous discipline.147 Rather Kennedy seems to be saying the law is inevitably recursive, and thus faces an insoluble problem of justification for that reason.148 146 “The divorce of legal reasoning from questions of social fact and ethical value is not a product of crusty legal fictions inherited from darker ages. Even in the most modern realms of legal development one finds the thought of courts and of legal scholars trapezing around in cycles and epicycles without coming to rest on the floor of verifiable fact. Modern developments in the law of unfair competition offer many examples of such circular reasoning.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 177. Yet later this same author argues that jurisprudence is autonomous. That’s illogical, one can’t have it both ways. 147 “Legal concepts (for example, corporations or property rights) are supernatural entities, which do not have a verifiable existence except to the eyes of faith. Rules of law, which refer to these legal concepts are not descriptions of empirical social facts (such as the customs of men or the customs of judges) nor yet statements of moral ideals, but are rather theorems in an independent system. It follows that a legal argument can never be refuted by a moral principle nor yet by any empirical fact. Jurisprudence, then, is an autonomous system of legal concepts, rules, and arguments, must be independent both of ethics and of such positive sciences as economics or psychology.”, p. 182. Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007). This argument recreates Platonic dualism and noesis and divorces thereby law from material reality, and is thus unscientific. Further, this dualism and separation of law and fact is the same reason that author argues that pure legal arguments are circular. Why that author argues in a contradictory matter escapes me. However, that author’s argument is simply a recreation of Hume’s false dichotomy of is and ought. Ought statements are a form of is statement and even if not can be recast as conditional is statements. The idea of autonomous disciplines is a projection of anglo-saxon individualism and is unrealistic because individuals are from birth absolutely dependent and throughout life relatively dependent on other persons. No man is an island. Humans are not autonomous, they are interdependent. 148 “In the modernist view (in opposition to the Marxist view), the critical project within Liberalism itself has led us to lose any hope of an ‘outside’ to, which we could resort in order to have a better way of doing official justice through reason. Reason is felo da se, dead by its own hand . . . meaning dead as a way to critique attempts to solve the problem through reason or as a away to figure out the situation within, which we have to decide politically or as a away [to] balance one’s

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That would be true if law were an autonomous discipline. However, Gödel’s incompleteness theorem warrants an understanding that seeing law as an autonomous discipline is the source of Kennedy’s justification problem. Law is not autonomous and thus faces no inevitable and insoluble problem of justification. The way out is to see that law is not an autonomous body of thought. The interdependence of law and other disciplines of the human sciences allows justifications to be made from economics, demographics, and all the other human sciences. Seeing law as one of the interdependent human sciences implies a theoretical monism and holism that are more accurate descriptors of reality than the atomism implicit in the incorrect view of law as an autonomous discipline. An atomized human science would indeed be autonomous. And atomism feeds individualism resulting in dysfunctions in science (no dialectic or awareness of groups) and economics (perverse results of self interest). I take a holist perspective because it works. Why is Kennedy arguing law is recursive and autonomous? I think he does so in a reach for pragmatism, in an attempt to gain leverage on the economic system, to argue that the supposedly natural and inevitable legal methods of late capitalism could be otherwise. If so, that would be another example of a foolish left gambit that undermines radical critique. Yes, different legal methods than those being used are possible. However, they can be reached by drawing on disciplines such as demographics where we can readily discover the average that most of the world is living in real poverty, near starvation or even outright starving or facing death in pointless wars of the poor against the poor149 in, which western arms merchants make a killing – literally. checkbook.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxv. 149 “Dr Hiroshi Nakajima, Director General of WHO, points out that the extra years are unequally shared among rich and poor. ‘Tragically, while average life expectancy has been increasing throughout the 20th century, 3 out of 4 people in the least developed countries today are dying before the age of 50 – the global life expectancy figure of half a century ago,’ he says. This year, 21 million deaths – 2 out of every 5 worldwide – will be among the under50s, including those of 10 million small children who will never see their fifth birthday. Over seven million will be among men and women in what should be some of the best and most productive years of their lives. Reducing these premature deaths is one of the greatest challenges facing humanity at the dawn of the 21st century.” WHO, Global life expectancy reaches new heights but 21 million face premature death this year, warns WHO (1998), at: http://www.who.int/whr/1998/media_ centre/press_release/en/index.html.

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The solution to Kennedy’s problem of right wing abuse of humans via law is not to isolate legal interpretation from other modes of thought. Rather it is to invoke those other systems of thought to change the legal system. That will inevitably lead to the argument of circularity, but that counterargument fails. Two mutually recursive functions, which alone do not terminate can, due to their mutual recursion be terminative. Thus the circularity argument is of no real force. Moreover, even if Kennedy were aware of recursion or Gödel his argument would then be reduced thereby to the position that language is inevitably ambiguous. This would be true if language were totally circular. However, language, even if intersubjective, can ultimately be reduced to vocal pointers to material objects. The material referents, which language points to are the anchor, which avoids circularity in speech. The circularity argument is of no force for these reasons. Kennedy does discuss iterative processes, but iteration and recursion are different (though some iterative functions can also be expressed recursively). Kennedy sees an iterative process: late 19th century legal thought (which I would call positivism or Begriffsjurisprudenz) as displaced by what he calls classical thought (which I would call realism or Interessenjurisprudenz) which in turn was displaced by what he calls “the social”150 – and believes there is no possibility to terminate these linguistic displacements. I disagree precisely because normative inferencing is possible151 and because I see law not as an autonomous isolate divorced from society or other social sciences but as interdependent with them in a system of mutually recursive functions that in fact terminate in the real. In other words (analogically, the shortcut may help you see the whole argument): My reality principle152 catches his uncertainty principle.153 150

I first noted the term “the social” in Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 37. 151 “I see classical legal thought as critique and reconstruction vis à vis its predecessor, and the social as a critique and reconstruction vis à vis classical legal thought, and legal realism as a critique of the social followed by another reconstruction, with each stage representing a weaker version of legal reason. This is a ‘death of reason’ narrative because it holds out no hope that yet another critique will lead to a reconstruction that satisfies more than momentarily the hunger for uplifting meanings that is as prevalent in law as everywhere else.” Duncan Kennedy, Legal History, at: http://duncankennedy.net/legal_history/index.html#DRN. 152 Sigmund Freud, Introductory Lectures, 16.357; Herbert Marcuse, Eros and Civilization, Ch. 1. (1955). 153 W. Heisenberg, “Über den anschaulichen Inhalt der quantentheoretischen Kinematik und Mechanik”, Zeitschrift für Physik, 43 1927, pp. 172–198. English translation: J. A. Wheeler and H. Zurek, Quantum Theory and Measurement Princeton Univ. Press, 1983, pp. 62–84.

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Kennedy definitely still believes his “death of reason” critique.154 And in a sense he is correct – there was a radical reconsideration of legal signification wrought both by the legal realists and the critical legal studies movement, which he championed. However, I believe the arguments of the realists and crits as to legal uncertainty and the conclusory nature of legal reasoning (that legal imputations are conclusions and that much if not all legal reasoning is conclusory) were overstated due to these failures: (1) The realists and CLS alike did not make the distinction between theoretical and practical reasoning or if they did they rejected theoretical reasoning outright for no good reason. When the realists were aware of and rejected theoretical reasoning outright that rejection was due to either: a) misreading of Hume by Weber and Kelsen who then posited, wrongly, the impossibility of normative inferencing. b) failure to read Aristotle and Hobbes and thus an either-or approach to the positivism-naturalism split. Positivism and natural law are not in necessary conflict. In fact, they are mutually supporting. Since normative inferencing is possible and since there is no valid reason to outright reject theoretical logic the death of reasoning narrative155 is wrong. Let us examine this in more detail.

154 “In the last five years, I’ve gone back to intellectual history, developing the same old death of reason narrative, concentrating on the ‘social’ critique of CLT and on the realists as critics of the social, on the interdependence of European and American legal thought, and on the nineteenth and twentieth century globalizations of legal thought in the context of the world system of Western domination.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. 1. p. xlii. 155 “Reason had died while giving birth to liberalism and we lived in a ‘postclassical age of disintegration’, prey to contradiction with no basis for action but a balancing technique that was ultimately a-rational. The Rise and Fall wasn’t supposed to be political in the sense that the above schools were. Its view that modernism was synonymous with the sense of internal contradiction was supposed to be the registering of a fact of ‘our situation.’ But that said, if you accepted it then you had to decided on your won, which way to move politically within the contradictory legal field.’ One had to do this without the guidance of a theory of law that would reinforce one’s normative orientation and at the same time guide the articulation of the ideal into the legal. Nonetheless, the legal had to be acknowledged as a relatively autonomous resistant medium, whatever one’s orientation toward operating within it. The implications were antinomian, or anarchist, or ‘decisionist,’ by contrast to the legalism of legal process and liberal constitutionalism and the rationalism (instrumentalist or idealist) of the legal economists and the radicals.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxx.

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II. Critique of the Death of Reason156 Critique Kennedy started his death of reason critique by noting a) contradictory legal principles and maxims, either of, which would serve as a warrant for a general claim;157 b) contradictions in case law; c) internal incoherence within branches of law;158 156 “4. Natural Law Disintegrates into Legal Positivism Natural law, and the individualistic will theory developed from it, disintegrated, according to Weber, during the second half of the nineteenth century. The reasons are the following: First, the rise of socialist substantive natural law theories proclaiming ‘the right to work,’ ‘the right to a minimum standard of living,’ ‘the right to the full product of one’s labor,’ and more. Second, ‘natural law doctrine was destroyed by the evolutionary dogmatism of Marxism, while from the side of ‘official’ learning it was annihilated partly by the Comtean evolutionary scheme and partly by the historicist theories of organic growth.’ In other words, Classical Legal Thought, as the will theory, was destroyed by its two enemies, namely Marxist theory and the socially oriented reform theory (the latter was ‘official’ only in Bismarck’s Germany). Weber sums up his diagnosis in a famous passage: Compared with firm beliefs in the positive religiously revealed character of a legal norm or in the inviolable sacredness of an age old tradition, even the most convincing norms arrived at by abstraction [from natural law axioms] seem to be too subtle to serve as the bases of a legal system. Consequently, legal positivism has, at least for the time being, advanced irresistibly. The disappearance of the old natural law conceptions has destroyed all possibility of providing the law with a metaphysical dignity by virtue of its immanent qualities. In the great majority of its most important provisions, it has been unmasked all too visibly, indeed, as the technical means of a compromise between conflicting interests.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1048 (2004). 157 “The enacted or “constructed” principles from, which the concrete norms supposedly derive are contradictory. They embody, for example, radically different attitudes toward freedom of contract according to whether they come from the “revolutionary” or the “social” version of natural law. Moreover, many of the concrete rules that might seem most relevant were chosen through judicial or “scientific” (by professors) “logical interpretations of meaning” that now appear open to the charge that they were abuses of deduction with patent ideological motivations. What’s a boy or girl to do under these circumstances?” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1067 (2004). 158 “That is the structure of contract doctrine, and its typical. Doctrine is not consistent or coherent. The outcomes of these conflicts form a patchwork, rather than following straight lines. There is no coherence to either contracts or property or torts. Sometimes one approach pushes all the way so that the armies get to a certain point . . . and then there will be a case in, which the opposing armies make it the

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d) a (supposedly) untenable dichotomy between rule-making and rule-applying159 which he criticizes as not adequately justifying the quasi-legislative power of judges.160 His conclusion is the finding of a general legal indetermincity161 which I simply see as unwarranted by any factual evidence of what courts actually do. Basically Kennedy is too idealist. He’s closer to Hegel than to Marx in that way. Kennedy himself elsewhere sees that the problem of judicial power (judges making law) is due to judicial overreach by American courts.162 Moreover, the problem of judicial power can be resolved by understanding that legislatures make general ex-ante rules and that judges then apply those rules ex-post to specific facts. Of course the judges’ decisions also have a role as precedent but judicial economy and parsimony both show that judges try not to be super-legislators because they know they cannot. way back in their counterattack. It’s a battle between contradictory worldviews, which are inside each person as well as embodied in the litigants. The conventional concept of doctrine is just wrong, and the minute one recognizes that, by splitting doctrine down the middle, the distinction between core and periphery dissolves. The reason for this is that the only way to understand what links together fifteen Lord Denning contract opinions and fifteen of his tort opinions is to go out to interdisciplinary studies, legal process, public law, policy and clinical perspectives. The opposition within doctrine is simply incomprehensible and unintelligible without reference to those things that are supposed to be on the periphery.” Duncan Kennedy, The Political Significance of the Structure of the Law School Curriculum 14 Seton Hall Law Review 1, 15 (1984). 159 (Not a quote except where quote marks appear) According to “theorists of formality” rule making is “inherently uncertain and unpredictable”, “rule application . . . is inherently certain and predictable.” Duncan Kennedy, Legal Formality 2 J. Leg. Stud. 351, 364 (1973). 160 “My argument is that a distinction between rule making and rule applying cannot be made to legitimate the coercive power of judges because a theory based on this distinction cannot deal in a satsifactory way with the contingent in history.” Duncan Kennedy, Legal Formality 2 J. Leg. Stud. 351, 354 (1973). 161 “LFR has proved internally indeterminate. We cannot just “stick to LFR” (maybe arguing “what are the alternatives?”). With respect to the particular high stakes problem that the judge is asked to decide by choosing among alternative candidate valid rules, there is no LFR to “stick to.” Denying this, and proceeding merrily along in full “fidelity to law,” or some other such nonsense, is exactly what we mean by the abuse of deduction.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1033–1068 (2004). 162 Duncan Kennedy, Paradox of American Critical Legalism 3 ELJ 359, 362– 363. Kennedy notes Politicization of the U.S. courts as the source of legal indeterminacy.

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III. Frames of Reference163 Professor Duncan Kennedy establishes an interesting model of the role of language in law. He argues, rightly, that at least one, perhaps even the main, aspect of cooptation is domination by being sucked into a discourse created by the dominant. To be coerced to accept as inevitably necessary true and good what in fact is contingent.164 As to frames of reference, he reiterates the distinction made by Levi-Strauss of langue (language) – a dynamic set of concepts interacting with each other over time – and parole (words) the static atoms of a given language. Note that this is not the more usual object-language versus meta-language distinction. Thinking in those terms however the meta-languages attracting Kennedy’s attention are legal theory and legal history and the object languages are most often real property law and family law. 1. Base/Superstructure Kennedy calls himself an “anarcho Marxist”165 yet rejects the Marxist base-superstructure distinction in law. Essentially the Marxist idea of base and superstructure is that the material base – productive forces, the material world – is in a dialectical relation to the superstructure – the relations of production i. e. the rationales used to structure and justify the structures in the productive base, and that the base superstructure dialectic is determined by the base. Kennedy believes that distinction is not useful to the study of law.166 Okay, but then why does he claim to be a Marxist? 163

Teubner, Breaking Frames. “It is possible to imagine a very different state of consciousness of the body of rules integrated in the subsystem of contracts. An observer might, and during the Classical period many observers did, see all the rules gathered under the contract rubric as implications of a general principle of freedom of contract, or one might conceive them all as the working out of the social purpose summarized by the notion of contract, or as designed to re-enforce a natural right of contract, or as included in a single composite utilitarian calculation about the enforcement of agreements.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850–1940, 3 Research in Law and Sociology 3, 20 (1980). 165 “I would describe myself as a kind of anarcho-Marxist modernist. I am often treated as though I were Hitler-Stalin. I find this offensive and enraging. A significant part of my anti-liberal animus comes from my sensing that whatever I say, if I’m not a moderate I must be a version of Hitler-Stalin, a true believer. I must be a person who is so obsessed with being right that I will subordinate every kind of human decency to impose my view on others. I must be willing to use any means to achieve my ends.” Duncan Kennedy, The Liberal Administrative Style, 41 Syracuse Law Review 801, 806 (1990). 164

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2. Structuralism Kennedy’s claim to be Marxist may be related to his structuralism.167 Structuralism is a theory derived by latter day Marxists.168 Structuralism is merely the idea that we can best understand an object by examining, describing and grappling with its structure,169 that structure inevitably influences outcomes. Structuralism promised some liberating potential because it would reveal the coercion in daily objects and architectonic realities. Structuralism argues that to resist domination one must understand the structures thereof. Structures exist to mediate contradiction,170 to channel or 166 “Instead of change mirroring transformation in the ‘material base’ (e. g., from competitive to monopoly capitalism), change was driven by the efforts of litigants representing conflicting interests to restate the law to favor their side.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xv. 167 “The goal . . . was to introduce critical theory and structuralism including the Frankfurt school and (in my own case) the work of Claude Levi-Strauss and Jean Piaget into American jurisprudence”. Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. ix. 168 “The turn away from critical theory was partly caused by the shift to the right of the whole culture that accelerated after 1980. As in the thirties, it had been briefly possible to study and use Marxism without academic career danger, then the window closed. However, two other factors were probably just as important in the particular world of the legal academy. The first of these was the rise of feminist legal theory and critical race theory. Both pushed hard against the ultra-white-male ethos of the New Left, as well as against the critique of rights we developed in the early eighties. The second was the arrival of post-modernism (also known as post-structuralism), which pushed hard, from the other direction, so to speak, against the super-straightness of that same white male ethos, and against our clinging to structure, as an indispensable moment in critique. Combining critical theory with structuralism in order to study the evolution of legal doctrine as a species of Liberal theory ran up against the further problem that taking doctrine seriously was reactionary from the point of view not only of feminist legal theory, critical race theory and postmodernism but also from the point of view of the sociology of law and even of legal realism. The death of reason was not a lot more popular with a left nostalgic for the good old days of the Warren Court and now barely hanging on to a place in the national debate between retreating liberals and steadily advancing right wingers. It wasn’t surprising that quite different approaches to Classical Legal Thought emerged and mainstreamed.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxxii. 169 Jacques Derrida, “Structure, Sign, and Play in the Discourse of the Human Sciences” in Writing and Difference, trans. Alan Bass. London: Routledge, pp 278– 294 (1981). 170 “One of the functions of a structure within consciousness, and particularly of a subsystem, is the mediation of the contradictions of experience. The sense of con-

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resolve conflict. Kennedy tries to use structural analysis as a method to critique American law and to direct the law to progressive goals.171 In using the Frankfurt School, Claude Levi-Strauss172 and Piaget’s work173 to critique U.S. law Americans like Kennedy took up European critical thinkers who however had no influence on European legal theory174 and as radical left thought continues to take a beating from law and economics it seems they have had little real impact in the U.S. as well – but what else could have been expected from rejecting scientificity and objectivity?

tradiction arises from the persistent existence within consciousness of elements, which seem mutually exclusive. These can be inconsistent facts, conflicting emotions, or operative abstractions whose implication contradict one another. Mediation is the reduction of the sense of contradiction by an arrangement of the elements that makes the problem less salient.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850–1940, 3 Research in Law and Sociology 3, 23–24 (1980). 171 “The Rise and Fall was an intervention in legal theory as well as in legal history. It aimed to demonstrate tha the modes of thought called structuralism and critical theory could be adapted and used in the analysis of law, both law as a technical discourse and law as an element in the social thought of a period.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiv. 172 Claude Levi-Strauss, The Raw and the Cooked: Introduction To A Science Of Mythology. Vol. I New York: Harper and Row. (1964). 173 Jean Piaget, The Construction of Reality in the Child, translated by Margaret Cook, 1955, Routledge and Kegan Paul. 174 “. . . or between two conflicting rules. It is not about the application of rules to facts. Thus, what we have appropriated these famous Europeans for is the American project of radicalizing legal realism. It is striking that European legal scholars, while recognizing them as among the most brilliant, formative characters in their own intellectual tradition, have found no similar use for their work. I think this phenomenon is a key to many interesting current contrasts between European and American legal culture. Here I mean to work on this comparative law question only indirectly, by taking up four objections that Europeans I know have made to the particular appropriation of structuralism and post-modernism that this chapter represents. I think brief responses to the objections may be a helpful first step in the long-run project. The four objections are: (A) in Europe, the policy arguments I identify are not present, at least not in the stereotyped form that I claim they take in American legal materials; (B) as a theory of law, this is just ‘law is rhetoric’, well known since the sophists, revived by Perelman, easily refuted by the fact of frequent legal determinacy; (C) as a theory of law, this is just ‘no rule can determine the scope of its own application’, well known since Wittgenstein, obvious to anyone who has read Derrida; (D) European law is so much more formal, certain and legislative than American that the analysis of mere policy argument is of little use East of the Big Water.” Duncan Kennedy, A Semiotics of Legal Argument, in Collected Courses of the Academy of European Law, Volume Ill. Book 2, 309, 317. Kluwer: 1994. First published in Volume 42 of the Syracuse Law Review, at p. 75.

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3. Post-structuralism Post structuralism is merely the idea that structuralism cannot completely describe social objects and that structuralism had exhausted every possible avenue for liberating persons from oppression. Professor Duncan Kennedy confuses inchoate and ill defined post structuralism (that, which is left after structuralism has denuded itself of critical descriptive power by completely describing the structure of empire) with post modernism – considering himself a post-structuralist and thus a post-modernist. However, post-structuralism is ill defined whereas post modernism is well defined. So, Kennedy’s understanding of post-modernism seems inadequate because he conflates post-structuralism with post modernism. 4. Post Modernism (PoMo) Modernity defines itself around a universal narrative of progress:175 that tomorrow will be better than today. Modernity is different from messianic or apocalyptic visions of feudal and pre-feudal cultures. It is also different from the idea of stasis; a static view of reality argues that the world is as it is and always has been and always will be. Modernity also defines itself around the idea of the industrial mode of production: mass production using assembly lines and interchangeable parts with workers roughly similarly organized by and as Weberian bureaucracies Post modernity in contrast defines itself around scepticism toward the ideas of progress and of universal narratives. Modernity may seem naïve but it is also hopeful. Post-modernism may seem sophisticated but is not hopeful. Post modernists argue that values are relative and thus that there is no objective morality and maybe even no objective knowledge. In fact, inasmuch as post modernity rejects the ideas of central organizing principles and hierarchy there is no centre in postmodernism and thus objective knowledge is impossible. Everything is subjective or at best intersubjective for post-modernists. Post-modernism essentially sees the world in terms of a rupture and a redoubling176 of thought as a mirror between the “real” and the “virtual”. 175 See, e. g., Martin Irvine, Postmodernity vs. the Postmodern vs. Postmodernism (2003). 176 “Perhaps something has occurred in the history of the concept of structure that could be called an “event,” if this loaded word did not entail a meaning, which it is precisely the function of structural-or structuralist-thought to reduce or to suspect. However, let me use the term “event” anyway, employing it with caution and as if in quotation marks. In this sense, this event will have the exterior form of a

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Thus simulacra177 and simulation are key features of the post modern. Kennedy nowhere suggests his work is merely virtual nor does he suggest his work is a simulation or simulacra. However, he does look at the late structuralists Michel Foucault and Claude Levi-Strauss in depth. Kennedy does develop a grammatology178 of laws that is as good or better than what Strauss or Bourdieu developed179 before the postmodernists ditched scientifically useful structuralism for scientifically useless “hyperologic”, circularity, virtuality and pure simulation (i. e. the abandonment of the real). Kennedy does appear to understand that at least some post-modern thought is somehow “off”.180 Post-modernism is unscientific due to an absent belief in such basic scientific concepts as objectivity and truth. For postmodernism, life is essentially subjectivist and truths, if they exist at all, are only relative. It’s simply not scientific.

IV. Kennedy’s Theory of U.S. Law Duncan Kennedy develops and deploys a number of self-invented concepts. Methodologically, he synthesizes these concepts inductively by observing a number of cases. His concepts include the idea of legal consciousness as being somehow autonomous and independent of other systems of thinking181 (a langue) and legal thought182 as being the specific acceptarupture and a redoubling.” Jacques Derrida, “Structure, Sign, and Play in the Discourse of the Human Sciences”, Writing and Difference, trans. Alan Bass. London: Routledge, pp 278–294. 177 Jean Baudrillard, Simulacra and Simulations (Simulacres et Simulation, Paris: Galilé (1981). 178 Jacques Derrida, Of Grammatology, publ. John Hopkins University Press., 1974. 179 Reproduction in Education, Society and Culture (Theory, Culture and Society Series), Sage, 1990, with Jean-Claude Passeron (La Reproduction. Éléments pour une théorie du système d’enseignement, Paris: Minuit, 1970). 180 “Yet another aspect of this kind of work is that it tries to use in concrete, familiar settings the exotic concepts of structure and contradiction, both derived from Western European ‘fancy theory’ (structuralism, phenomenology, neo-Marxism, hermeneutics, and the like). This is problematic because concepts from these European enterprises usually get deployed as part of a high-flown, mystificatory Dance of the Big Words designed more to establish the choreographer’s prestige than to communicate with the audience. I’m nonetheless convinced that some fancy theory is just plain essential to understanding even the most mundane details of my own life;” Duncan Kennedy, The Political Significance of the Structure of the Law School Curriculum 14 Seton Hall Law Review 1, 1–2 (1984). 181 “The approach of The Rise and Fall posits that the thought of a period has a certain kind of unity. This is not the unity of a ‘spirit’ of the period, nor the unity

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ble intellectual manoeuvres (the set of paroles) within a given legal consciousness. I’ve already explained why I think law is not autonomous and why I think seeing law as part of an interdependent whole known as the human sciences would be a better way of ending oppression than making a gambit essentially doomed to fail. I also disagree with Kennedy’s terminology and historicism: he divides legal consciousness into pre-classical, classical legal thought, and the social and I disagree with those terms a bit and their historicity more than a bit. 1. Before CLT – The “Classical Period” (Natural Law) (Individualism – Begriffsjurisprudenz) First, I must make clear that I disagree fundamentally with Kennedy’s distinction between “pre-classical” and “classical” eras. Rather, I would describe the world as essentially following varieties of natural law thinking literally from Aristotle, at latest to About 1880. Moreover, I would name names to support this view. The Classical, i. e. natural law theories were put forward by: Aristotle, Cicero,183 Justinian, Aquinas,184 Hobbes,185 produced by the working out of a master idea (we called that approach ‘idealism’). It is rather the unity that comes from the existence, withint the overall consciousness of a period, of a dominant doctrinal ‘subsystem’ within, which concepts, reasoning techniques, ideals and images are analogous across legal domains.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. x. 182 “Legal thought, for the purposes of The Rise and Fall, is the conceptual apparatus, the reasoning techniques, the legal ideals and the key images that the elite bar, including judges, treatise writers and important lawyers, deploy when they make legal arguments or give opinions or declarations about what the law ‘is’ or ought to be. There were two models for the project . . . Pollock and Maitland . . . and von Jhering” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. ix. 183 Cicero, The Republic at III, XXII (Loeb Classical Library, 1950). 184 St. Thomas Aquinas, Summa Theologica (Fathers of the English Dominican Province trans., 1947). 185 Thomas Hobbes, Leviathan 91 (Richard Tuck ed., Cambridge University Press) (1996). “The right of nature, which writers commonly call Jus Naturale, is the liberty each man hath to use his own power as he will himself[ ], for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which, in his own Judgement and reason, he [ ] shall conceive to be the aptest means thereunto.”; “A law of nature (Lex Naturalis) is a Precept, or general Rule, found out by Reason, by, which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same: and to omit, that, by, which he thinketh it may be best preserved. For though they that speak of this subject, use to confound Jus, and Lex, Right and Law; yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear; whereas

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Coke,186 Blackstone,187 Savigny.188 Where I agree with Kennedy is that these thinkers’ views were, wrongly, replaced by the rise of positivism due to an erroneous presumption that a positive science of law and the law of reason (Vernunftrecht, i. e. the law as reason variant of natural law) were somehow inconsistent. They are not. Both Aristotle and Hobbes explain exactly how positive and natural law are complementary elements in legal science. 2. Classical Legal Thought (CLT) (Positivism – Interessenjurisprudenz) The problem starts with the fact that Kennedy’s uses terms, which are already used elsewhere to indicate other ideas and also that he uses more terms to describe in different ways well defined concepts. In other words, he violates Occam’s razor and multiplies intentional entities, I think needlessly. Kennedy’s terms are pre-classical legal thought, classical legal thought (CLT) and “the social”.189 Kennedy argues that his Classical Legal Thought190 – what other scholars term formalism191 – developed as early as LAW, determineth, and bindeth to one of them: so that Law and Right, differ as much, as Obligation, and Liberty; which in one and the same matter are inconsistent.” 186 Sir Edward Coke, The First Part of the Institutes of the Laws Of England (Philadelphia, R.H. Small 1853). 187 William Blackstone, Commentaries on the Laws of England (1765–1769). 188 Friedrich Carl von Savigny: System des heutigen roemischen Rechts, p. 206, § 32 et seq. vol. 1, 1840. 189 “According to The Rise and Fall, Classical Legal Thought (CLT) differed radically, discontinuously, from the model that dominated up to the Civil War but was conceptually similar to the one we employed in 1975. Pre-Classical legal thought got it’s unity-by-analogy through the ideal of ‘liberality’ (in opposition to ‘technicality’), the manipulation of a tension between morality and ‘policy’, reasoning to results through ‘implication’ of a fictitious intent, the right/remedy and vested/unvested distinctions and the notion of a ‘relations’ as the basis for legal rules in a private law system understood as primarily contractual.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xi. 190 “My subject is the development and disintegration of a form of American legal thought that emerged between 1850 and 1885 and flourished between 1885 and 1940, allowance made for the spurious precision of dates. Because this way of thinking amounted to a rationalistic ordering of the whole legal universe, I will call it Classical legal thought. For a crucial season, that of the transformation of American economic and social life, the thinking of the legal elite was organized neither around the categories of natural right and utilitarianism, nor in the vaguely instrumentalist or nationalist mode of the “Formative Era.” During this period, treatise writers, leaders of the bar, Supreme Court Justices, and the like shared a conception

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1860, was somehow (how?) different from legal theorizing prior to the civil war, and that CLT ran to, at latest 1940.192 Kennedy renames formalism CLT to avoid the normative bias (negative value judgement) attached to the pejorative use of the word “formalism” which is understandable since the legal realists overstated the critique of formalism at least prior to the Second World War.193 According to Kennedy, CLT displayed coherence, rationality and certainty, which however proved illusory. He does not, but should, note that CLT foundered on the rocks of a world war, then a depression and finally another world war. That would require him recognizing that economic factors predominate in the dialectic between ideology (rationalizing ideological superstructure) and market forces (productive economic base). Kennedy regards legal scholarship as an autonomous discipline, i. e. as independent of history or economics.194 He does not seem to explain why he thinks that law is somehow independent of economics when law (a social superstructure) is very clearly shaped both by economic and historical of law that appeared to transcend the old conflicting schools, and to ally the profession with science against both philosophical speculation and the crudities of democratic politics.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850–1940, 3 Research in Law and Sociology 3, 3–4 (1980). 191 “It seemed to me when I began, that the main defect of the conventional historiography of legal thought was its underestimation of the innovative, indeed revolutionary power of late nineteenth century thinkers, then dismissed as ‘formalists.’ I proposed to rename the period ‘classical legal thought’ in order to emphasize the extent of the break from the past and the extent to, which what we do today is merely ‘post-classical legal thought,’ rather than representing transcendence and a new synthesis.” Duncan Kennedy, Legal History, at: http://duncankennedy.net/legal_his tory/index.html#DRN. 192 “The periodization I adopted was the conventional one for describing three overlapping ‘Ages of American Law:’ the period from the Revolution to the Civil War (pre-Classical legal thought); the late nineteenth and early twentieth century (Classical Legal Thought or CLT); and the ‘modern’ period beginning before WWI and lasting to the present of 1975. However, I proposed a new understanding of the periods and their relationship to one another.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. x. 193 “By 1940, the realist revolt against nineteenth century orthodoxy was complete. American jurists had lost confidence in deduction as the central tool for legal reasoning and in the ambition to unify the law by linking rules to a small set of central concepts or organizing principles.” Kennedy & Fisher, p. 209. 194 “We can understand these only if we recognize and confront the existence of legal consciousness as an entity with a measure of autonomy. It is a set of concepts and intellectual operations that evolves according to a pattern of its own, and exercises an influence on results distinguishable from those of political power and economic interest. The autonomy of legal consciousness is a premise; yet that autonomy is no more than relative. Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. 1.

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forces – the material base. Kennedy also describes CLT as “emergent”195 Does he mean that CLT was always a “work in progress”? Or does he mean that CLT exhibits the behaviours of an emergent system – namely the appearance of intelligent reaction on a collective scale through the aggregation of numerous unintelligent individual behaviours? Examples of emergence intelligence in nature include ant-hills and the free-market. Or does Kennedy mean something else? He does not seem to explain what exactly he means by the term “emergent” (perhaps a synonym for “emerging”?) but at least in theories of entomology and artificial intelligence the term emergent behaviour is coherently defined as the actions of a group that appear intelligent that emerge from the apparently unintelligent actions of constituents of the group. Capitalists argue that free markets are an example of emergent intelligence.196 Returning to the critique, some of Kennedy’s ideas are counterintuitive. “[P]rivate rights and public powers received their characteristic modern form, the form in, which they became the universal building blocks, only in the late nineteenth century. Rights and powers, as we understand them today, are a very recent invention.”197 I am sceptical of the idea that this modern form only recently arrived and was somehow fundamentally different from what happened before, say, 1800 (or even 1400). Law has been around for thousands of years. I’m sceptical partly because I do not see the lists of footnotes to cases and statutes or other authorities and also because I’m aware of legal history. Of course, a lot of legal evolution did in fact occur in the 1800s – due to economic transformations that escape Kennedy’s model because he rejects the base-superstructure dichotomy. Maybe Kennedy is right but if he is that would invalidate another part of his theory. In any event citations would have been appreciated. 195 “But the general conception was quite different from his, and cannibalized other theories along with Lukacs. . . . CLT was always ‘emergent’ and ‘relatively autonomous’ from other domains.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xvii. 196 Adam Smith, The Nature and Causes of the Wealth of Nations (1776) (Invisible hand metaphor). 197 “The first narrative claims was that private rights and public powers received their characteristic modern form, the form in, which they became the universal building blocks, only in the late nineteenth century. Rights and powers, as we understand them today, are a very recent invention. The second claim was that the jurists who did the work of construction were engaged in an ambitious rationalization project that paradoxically ended in loss of faith both in the coherence of their conceptual scheme and in the existence of a distinctive legal reason. The third was that this outcome left us in a ‘post classical age of disintegration’ with multiple reconstruction projects, bearing only an oblique resemblance to the legal thought of the pre-Civil War period.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. viii.

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Whatever dates and reasons198 we choose to put on the rise of positivism and the fall of jus naturalism, positivism divorced from naturalism clearly arose as an idea of a scientificity as law prior to the realists and ended in a radical break from the idea of legal determinacy with the realists and then in a second strike with critical legal studies. I would rather put the dates as a continuation of natural law to 1880 and the definitive break in the U.S. via realism from ca. 1880 (Holmes) to 1930 with a positivism believing in legal science until the two shocks to the base of 1914 and 1929. Professor Kennedy’s view is too much divorced from material facts of history to take these two shocks (and the shock of the Vietnam war) into account in the development of his thesis of legal indeterminacy. It’s odd that he does not see that the protests against the Vietnam war made CLS possible. Rather than focusing on an invented concept – the subsystem199 – within an invented concept, classical legal thought – professor Kennedy would 198 “As we have seen already, according to Weber, Western legal thought moved from natural law to positivism for two reasons. First, the vagueness, inconsistency, etc., of natural law makes it inapt as a basis for a modern legal bureaucratic order. Second, the development of new types of charismatic natural law thinking, and the variants of the social ideology. These developments undermine both the charismatic and the rational claims of the eighteenth century “revolutionary” natural law of the bourgeoisie, that is, the “individualist” natural law of absolute property rights and freedom of contract. Positivism becomes the theory of lawmaking because natural law is implausible in theory, but also because actual legislation comes more and more to embody both the program of revolutionary natural law and that of social law. The corpus of codified rules thus no longer plausibly translates a single set of value-rational judgments (say, the rights of man) into the details of legislation. Rather, in Weber’s formula already quoted, law “has been unmasked all too visibly, indeed, as . . . the technical means of a compromise between conflicting interests.”72 This development put LFR in jeopardy. There are two components to the modern legal order, codification and the technique of interpreting the code “as though it were” an internally consistent document each of whose concrete or (in the European phrase) “material” provisions can be understood to be an implication of the meaning of a more abstract provision. In this system, as I explained above, gaps are filled by the analysis of the system, presupposed to be internally coherent, to build a chain downward from some unquestionably valid abstract provision, or upward to and then downward from some logically required though unenacted abstract provision.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1065 (2004). 199 “CLT was not the legal consciousness of the Classical period but the dominant subsystem within it. The subsystem was not a theory, explicit or implicit, that Classical thinkers consciously or even unconsciously put into effect. The subsystem came into existence as legal actors applied, to one issue after another, a vague general or ideal orientation and a set of evolving tools used when ‘doing’ law”. Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xv.

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have been better to use existing concepts in the interest of parsimony (Occam’s razor) to avoid confusion and also to have stayed in touch with history’s movements in the formation of legal thinking – base really does predominantly influence superstructure in a relation of mutual feedback. There is a reason realism rose with the world war and ascended during the great depression to be rationalized in order to reorder U.S. legal thinking in the era of U.S. global hegemony. If law were autonomous it would be possible to push a radical legal agenda even in times of economic prosperity. So why did Kennedy stop pushing CLS when the U.S. won the cold war? Kennedy’s discussion naturally takes into consideration the transition from a theory of natural rights200 to positivism.201 He correctly notes the shift from a property orientation202 toward a contractarian orientation203 but does not seem to note the correspondence feudalism-status to capitalism200

“For a crucial season, that of the transformation of American economic and social life, the thinking of the legal elite was organized neither around the categories of natural right and utilitarianism, nor in the vaguely instrumentalist or nationalist mode of the ‘Formative Era’.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. 1. 201 “Outside” or “above” legal theory, there were a variety of rationales for the legal commitment to individualism thus understood. Of these, only natural rights theory was also highly relevant on the “inside,” that is, in the development of the technique of legal analysis based on deduction. Natural rights theorists had elaborated the will theory, beginning in the seventeenth century, as a set of implications from their normative premises, and their specific legal technique was the direct ancestor of the legal formalism that the socially oriented reformers were to attack in its positivized form. In the nineteenth century, the German historical school (Savigny) developed a positivist version of normative formalism. National systems of law reflect as a matter of fact the normative order of the underlying society; such a normative order is coherent or tends toward coherence on the basis of the spirit and history of the people in question; “legal scientists” can and should elaborate the positive legal rules composing the system on the premise of its internal coherence. In the middle and late nineteenth century, the German Pandectists (Puchta, Windschied) worked at the analysis of the basic conceptions of the German common law version of Roman law with the aim of establishing that this particular system could be made internally coherent, and also be made to approach gaplessness. Many Continental legal scholars understood the German Civil Code of 1900 as the legislative adoption of this system.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1033 (2004). 202 “. . . in the early nineteenth century, legal thinkers lumped most private law rules under the category of property; by mid-centruy, they had reconceived the system as primarily contractual”. Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii. 203 “. . . shift form vested rights to substantive due process . . .” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii.

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contract apparently omitting to mention that his will theory204 (known elsewhere as voluntarism) emanated from capitalism. Unfortunately, by rejecting the base-superstructure distinction and materialism Kennedy cannot note the obvious links from the market forces to the legal structures, which have of course been observed by other scholars. Maybe he thinks they are so obvious they do not need to be noted? The rising system of positivism (for that is what it was) implied new methods205 and a reorientation away from the idea of natural (feudal) right toward the idea of volontaristic powers206 – an evolution to have as a consequence two world wars, which in turn led to the (overstated) death of rationality critique. This was accompanied by a shift from a search for true (natural) principles to a search for factors of interest207 ultimately resulting in the now ubiquitous (at least in U.S. legal thought . . .) balancing test. 204 We need to pause at Weber’s interpretation of the Rights of Man. In the chapter of Economy and Society on the sociology of law, Weber introduces revolutionary natural law as a key element in the emergence of the modern conception of lawmaking (we hold positive law to the test of natural rights) and of LFR. “[T]he natural law axioms of legal rationalism . . . alone were able to create norms of a formal type . . .”35 Specifically, what happened was the elaboration of the abstract principles of revolutionary natural law, and the fragmentary, not yet “sublimated” provisions of the French Civil Code, into the pyramidally structured, deductive, complete system that I called above “the will theory.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1046–1047 (2004). 205 “My claim was that, in the second half of the nineteenth century, legal actors dramatically revised the conceptual apparatus, reasoning techniques ideals and images that had dominated in the pre-Classical period. The Classical subsystem built all legal rules out of a will theory using strictly analogous conceptions of state and federal power and private right. Private law rules were elaborately divided and subdivided around the public/private distinction within private law. The preferred reasoning technique was induction/deduction, the ideal was the deployment of democratically validated public power as the framework for private freedom, and the key image was of powers and rights that were ‘absolute within their sheres’.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xi. 206 “The multi-dimensionality of rights – that they were ‘the same thing’ in public and private law – did not mean that the legislature couldn’t change the common law, but rather that the rights, in the conflict of rights and powers, were the same as the rights in the conflict of right and right, and had to be accommodated using the same judicial techniques.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. 1, p. xxxvi. 207 “The two modes of revision that contrast with The Rise and Fall are, first, the search for the true legal principles of the Lochner era constitutional cases, and, second, the enrichment of our understanding of the diverse factors, other than the supposed Langdellian orthodoxy, that went into the thought of the leading figures of

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An interesting theory professor Kennedy proposes is that the classical legal system208 developed by an intensive reiteration of a principle within private law209 a refined, detailed and correct notation of the reworking of existing concepts210 with each iteration deforming, somewhat, the original principle211 resulting ultimately in the exhaustion and disintegration of that system212 and a questionable and unaccepted synthesis of the transformed and transforming system by resort to induced general principles.213 Rather the period.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxxvii. 208 “The argument of The Rise and Fall was that there was a Classical subsystem within late nineteenth century legal thought that cohered through the notion of powers absolute, the will theory, the iteration and reiteration of [XV] the public/ private distinction and the inductive/deductive method.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), pp. xiv–xv. 209 “The transformation of private law thinking was accomplished by the iteration and reiteration of the public/private distinction to differentiate fields within the private domain, and then to further internally differentiate each field. The upshot was a ‘will theory’ within private law, with the will being either the will fo the parties or the will of the state.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii. 210 “As I’ve already mentioned, The Rise and Fall depicts the emergence of a new organization of private law throught the iteration and reiteration of the public/ private distinction within the private. So contracts and trusts are private vis a vis torts, quasi contract, constructive trust and status. However, within contract, the consideration doctrine is public, offer and acceptance private.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xx. 211 “. . . the concepts that were used over and over to contruct the subsystem changed each time they were extended to a new sub-sub-system.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xv. 212 “The irony was that the very success of the enterprise of subsuming all legal relationships under a single small set of concepts eventually destroyed belief that it was the concept itself that determined the outcomes of their application. When the abstractions had performed their task of integrating legal thought, it became apparent that while pre-Classical particularly had been irrational, the new unity was merely linguistic – a verbal trick – rather than substantive reconstruction. We came gradually to see that there were an infinity of possible results that might all plausibly find expression in the new conceptual language, and, what was worse, might all claim to be derivation of the abstract governing principles. The concepts then could be nothing more than a vocabulary for categorizing, describing and comparing, rather than the elements in a method for deriving outcomes. The famous principles, taken together, appeared either self-contradictory or so vague as to be worthless as guides to particular decisions.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxiii. (cited from p. 251). 213 “The most exotic of the ideas in The Rise and Fall, and perhaps for that reason the idea that has had least resonance, is that of the construction of the legal

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than see formalism and realism as dichotomous categories triggered by depression he sees formalism and realism as on a continuum over time. The continuity view may be the case but the trigger definitely was the great depression. Note however that an iterative function is not recursive and that both iterative and non-iterative functions can be terminal or indeterminate. The iteration and development of the idea of private rights214 was part of “an ambitious rationalization project that paradoxically ended in loss of faith both in the coherence of their conceptual scheme and in the existence of a distinctive legal reason.”215 That is, they were part of modernity, of the modernization of law from the feudal divine right to the scientific positive law. However, two world wars, a great depression and numerous minor wars led to a rejection of rationalism, at least in some respects. “this outcome left us in a ‘post classical age of disintegration’ with multiple reconstruction projects, bearing only an oblique resemblance to the legal thought of the pre-Civil War period.”216 The disintegration of CLT217 resulted in part from numerous challenges to the theory.218 The usual view is that the result of the decline of natural object. The Rise and Fall argues that the judicial, legislative, commerce and police power was understood as ‘essentially’ the same thing in relation to the federal commerce power that it was in relation to the individual right of property. An individual’s right or property, in turn, was the same thing in relation to legislative power that it was in relation to the property right of another individual. The judicial power was the same whether adjudicating federal vs. state power, legislative power vs. individual right or individual right vs. individual right.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxi. 214 “To the extent we believe that leading Classical privatists held the theory, we can understand better the actual development of the private law part of the Classical subsystem. Under the influence of this ideal, they would have tended to construct concepts (contract, tort, quasi-contract, offer, consideration) intended to be operative at a higher level of abstraction than had characterized pre-classical legal thought.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxxiii. 215 Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. viii. 216 Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. viii. 217 “A thesis of The Rise and Fall was that this situation came about through the ‘disintegration’ of CLT, which had developed over time this very underlying structure of powers and rights, but whose practitioners had believed that it was possible to resolve conflicts (do judicial lawmaking) by distributing questions according to the firm categorical scheme established in the federal constitution and then inducing/deducing the solution from that scheme. The solutions got their analogical character from their deployment, across the domains of constitutional law, of the image of ‘powers absolute within their spheres,’ with the sphere of the federal judi-

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law was the rise of positivism leading in turn to the critique of law as formalism first by the realists then by CLS. Instead Kennedy argues that naturalism (pre-classical) theory was replaced by positivism (CLT) which in turn was replaced by something he calls “the social”.219 3. The Social (Legal Realism/CLS) (Collectivism) Kennedy describes an idea he calls “the social”.220 Though he feels his theory of “the social” is not adequately developed to describe the Eastern Bloc I do not see that as a fatal problem since the Eastern Bloc featured institutions and processes roughly similar to and indeed paralleling the ciary being the neutral policing of all the boundaries, while respecting the will of the relevant power or right holder when operating within its proper domain.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xii. 218 “In 1900, there was a well defined mainstream mode, which we now customarily call Classical Legal Thought (CLT), and two challengers: what I will call the “social current,” or “socially oriented legal thought,” and Marxist legal thought.”, p. 1031 Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031 (2004). 219 “Starting around 1900, CLT as a subsystem didn’t so much shrink as disintegrate, likewise through reworking, piece by piece, mprphing little by little into modern legal thought. The legal consciousness of 1945 contained residual elements of pre-Classical legal thought and residual elements of classicism, as islands in a modernist sea.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xvi. 220 “B. The ‘Social’ as a Mode of Legal Thought The inventors of the ‘social’ include Jhering, Ehrlich, Gierke, Gény, Saleilles, Duguit, Lambert, Josserand, Gounot, Gurvitch, Pound, and Cardozo. They had in common with the Marxists that they interpreted the actual regime of the will theory as an epiphenomenon in relation to a ‘base,’ in the case of the Marxists, the capitalist economy, and in the case of the social, ‘society’ conceived as an organism. The idea of both was that the will theory in some sense ‘suited’ the socio-economic conditions of the first half of the nineteenth century. However, the social people were anti-Marxist, just as much as they were anti-laissez faire. Their goal was to save Liberalism from itself. Their basic idea was that the conditions of late nineteenth-century life represented a social transformation, consisting of urbanization, industrialization, organizational society, globalization of markets, all summarized in the idea of ‘interdependence.’ Because the will theory was individualist, it ignored interdependence and endorsed particular legal rules that permitted anti-social behavior of many kinds. The crises of the modern factory (industrial accidents) and the urban slum (pauperization), and later the crisis of the financial markets, all derived from the failure of coherently individualist law to respond to the coherently social needs of modern conditions of interdependence.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1034 (2004).

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west, especially after Khruschev. Kennedy correctly describes both a left wing social (socialism, communism and possibly tribalism) against a right wing social (corporatism, fascism) and carefully describes the transformation from rising positivism and the vestiges of naturalism (his CLT) to “the Social”221 “The Social” criticizes earlier legal theorizing222 because indivi221 “Stated in the most general possible way, this is what happened: Before the Civil War, the legal elite conceived the set of legal relationships that together comprise the American legal system – i. e., private citizen to private citizen, private citizen to state, legislature to judiciary, and federal to state government – as qualitatively distinct from one another and as operated legally according to qualitatively distinct analytic principles – i. e., the common law, sovereignty limited by written constitutions, the equilibrium of forces between separate governmental powers, the union of sovereign states. During the Classical period, the legal elite conceived these four institutional relationships as four particular instances of a single general legal relation: each of them was an example of the delegation of legal powers absolute within their spheres. The role of the judiciary (its sphere of absolute power) was the application of a single, distinctively legal, analytic apparatus to the job of policing the boundaries of these spheres. The legal system appeared to have synthesized successfully the positivist science of law, natural rights constitutionalism, and Classical Economics. After 1900, this highly-integrated system began a process of further integration that tended toward the reduction of all legal action to the enforcement of intrinsically just ground rules for economic struggle among private actors. The refinements were a response to attacks by liberals and progressives on the political role of the judiciary, but proved ultimately self-destructive. The triumph of a purely formal theory of marginal utility in economics and the appearance of American philosophical pragmatism undermined the analytic apparatus, leading to the dissipation of faith in the intrinsic justice of the rules, and discrediting the notion that they could be objectively developed or applied. The outcome was a disintegration of legal thought into mutually autonomous subcategories different from but somewhat resembling those of the pre-Civil War period, and the recession of the judiciary from the role of guardian of the integrity of fundamental legal relationships.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850–1940, 3 Research in Law and Sociology 3, 4–5 (1980). 222 “The social critique of CLT was that it failed to develop the rules needed for the new game of interdependence, for two reasons. The first was its ideological commitment to individualism, an outdated philosophy both as description and as norm. Second, according to the social people, CLT people understood themselves to operate as interpreters (judges, administrators, law professors) according to a system of induction and deduction premised on the coherence, or internal logical consistency, of the system of enacted legal norms. One mode was to locate the applicable enacted rule; a second was to develop a rule to fill a gap by a chain of deductions from a more abstract enacted rule or principle; a third, the method of “constructions,” was to determine what unenacted principle must be part of “the system,” given the various enacted elements in it, if we were to regard it as internally coherent, and then derive a gap filling rule from the construction.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology

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dualist-atomism ignored interdependence leading to sub-optimal outcomes. The Social has a very specific distributive agenda and methods appropriate to that:223 Its outlook is holism, organicist, and it’s methods are instrumentalist means-end analysis; its keywords are solidarity and community. Really, here, my disagreement is only terminological and Kennedy is well aware of the distinctions between corporatism, fascism, authoritarianism and totalitarianism. The social in turn however also came under critique, principally for being an inefficient and suboptimal way to organize society.224 A system with only pleasure and no pain loses its disciplinary capacity. Hayek, Friedman and Coase led the attacks on the social. Social thinking still exists. Though it has not been annihilated like critical legal studies it has been in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1049–1050 (2004). 223 “From this ‘is’ analysis, they derived the ‘ought’ of a reform program, one that was astonishingly successful and globalized even more effectively than classical legal thought, through many of the same mechanisms, but also because the social became the ideology of many third world nationalist elites. There was labor legislation, the regulation of urban areas through landlord/tenant, sanitary, and zoning regimes, the regulation of financial markets, and the development of new institutions of international law. Just as with CLT’s will theory, the abstract idea of the social appealed to a very wide range of legitimating rhetorics. These traversed the left/ right spectrum, leaving out only Marxist collectivism at one extreme and pure Manchesterism at the other. Thus, the social could be based on socialist or social democratic ideology (perhaps Durkheimian), on the social Christianity of Protestant sects, on neo-Kantian ‘situational natural law,’ on Comtean positivism, on Catholic natural law as enunciated in Rerum Novarum and Quadrigesimo Anno,3 on Bismark/Disraeli social conservatism, or on early fascist ideology. Regardless of, which it was, the slogans included organicism, purpose, function, reproduction, welfare, instrumentalism (law is a means to an end) – and so anti-deduction, because a legal rule is just a means to accomplishment of social purposes. A crucial part of their critique of Classical Legal Thought was their claim that it maintained an appearance of objectivity in legal interpretation only through the abuse of deduction.’ Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1033–1034 (2004). 224 “In Europe through Kelsen and in the United States through Llewellyn and the legal realists, Weber’s basic critiques of the social – that it illegitimately attempted to generate a legislative ought from the is of social change, and that it often (not always) tried to bootstrap validity in the juristic sense from the facts of regularity of behavior and normative consensus – were very fully assimilated and are an important part of the modern mode of legal thought (in its theory part). Moreover, Weber’s basic sociological distinctions are the basis of the methodology of modern legal sociology on both continents.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1070 (2004).

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marginalized. For example, contemporary fiscal policy in the United States is clearly conservative though vestiges of social thinking still can be found in liberal social policy. The principle vectors of “the Social” are health, education, welfare,225 and family.226 4. Contemporary Legal Thought227 (Neo-formalism) Another problem of terminology emerges in the later part of the account. Kennedy calls “modern” that, which should properly be termed “contemporary legal thought”. It is clear, at least in places, that by modern he means contemporary.228 The difficulty is some of contemporary thought – including aspects of Kennedy’s own thought – is properly conceived of as post modern. I will consistently refer to contemporary legal thought as that though that risks confusion with classical legal thought due to a coincidence of letters. I think the confusion, which would result from the inaccurate use of modern/modernity would be even greater than a coincidence of initials. Kennedy observes, correctly, a splintering of American legal thought into (mainly) legal process school, liberal constitutionalism, law and economics and critical legal studies.229 Contemporary legal thought230 is 225

Which had a disciplinary function. Expert managers with discretion would determine social welfare via income payments. 226 “In the progressive version of the social, the prohibitions to be relaxed were those on nonmarital sex, as for example by decriminalizing female adultery and sex between unmarried persons, permitting divorce by mutual consent, legalizing the sale of contraceptives, destigmatizing illegitimacy, legalizing abortion (so that it could be performed in medically controlled circumstances). The decriminalization of prostitution went along with its regulation in brothels through the typical social mode of an inspectorate armed with criminal penalties and injunctive powers. The social ideology tended to pathologize and medicalize homosexuality.” Three Globalizations, P. 51. 227 “There were three major changes in the modern period. First, the boundaries between conceptual domains (public law and private law, contract and tort, etc.) were blurred or collapsed. Second, actors within modern legal thought experienced their ideals as contradictory, rather than as diverse but harmoniously distributed across subject matters. Third, there was a dramatic transformation in the dominant technique of legal reasoning, from induction/deduction to balancing.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xi. 228 “. . . the moderns have defaulted to more or less ad hoc balancing from situation to situation.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii. 229 “In 1975 there were four discernible currents of legal academic politics, each with a characteristic approach to legal theory. These were the legal process school, liberal constitutionalism, law and economics and a little radicalism. The legal pro-

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however in a crisis of legitimacy due to splintering231 with critical perspectives marginalized and powerless. Kennedy notes that radical legal discourses were from the start marginalized from the start by liberalism.232 Yet, for whatever reason, Kennedy is still dog-faithful to liberalism. MacKinnon is not. Tenured professors do not have to subscribe to liberalism to keep tenure. At any rate, liberalism has essentially killed cricess was into post-realist centrist ‘reasoned elaboration’ that made the Constitution a left liberal document. The newly emergent law and economic scholars were hyper-realist about doctrine (simply dismissing it) and naively deductivist about efficiency. The radicals saw law either as the instrument of dominant interests or as determined by the economy, although sufficiently autonomous to be sometimes available for radical offense or defense.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxix. 230 “Of course, policy analysis is never present in pure form in contemporary legal thought, and always operates in uneasy co-existence with at least the following earlier types: cadi justice or lay equity, LFR, the “social” methodology of deducing a rule from a single social purpose, and the mode of positivized natural rights reasoning characteristic of modern charter-based constitutionalism with judicial review. Moreover, the Weberian category of legitimacy does not capture the subtle psychological attitudes of modern ruler and ruled toward the ought-claims of law produced in this way. I would prefer to describe them in the register of degrees of “bad faith,” in the Sartrean sense.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1075 (2004). 231 “In contemporary legal theory, policy is always a potential Trojan horse for ideology, just because of the patently weak rationality of choosing policies by universalizability and then merely “balancing” them. The Weberian legitimacy of the legal order rests partly on the claim that “we” use democratic lawmaking procedures – rather than judicial legislation – to deal with ideological conflict. It also rests partly on the claim that constitutional law, with non-ideological judicial enforcement, guarantees human rights. As a consequence, the apparent possibility of a moment of arational, Weberian, or Schmittian decision within the adjudicative process is, at least, “a problem,” for apologists for the existing legal and social order. One way to interpret the proliferation, after about 1970, of “schools” of legal theory is as a Weberian phenomenon of sectarianism in the face of the irreducible ethical irrationality of legal judgment. Thus, revived natural law, human rights, law and economics, Habermasian speech act theory, Dworkinian rights theory, libertarian legal theory, feminist legal theory, critical race theory, and, last but by no means least in this list, critical legal studies, would represent responses to the core dilemma, whether it is called “democracy deficit,” “countermajoritarian difficulty,” “judicial paternalism,” “result orientation,” “activism,” or whatever. Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1076 (2004). 232 “. . . liberal hegemony had marginalized or invisibilized the literatures of Marxism, structuralism and crticial theory generally.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxviii.

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tical legal studies.233 Kennedy has meanwhile lost hope234 in the possibility of a determinate legal order.235 While he does explain the rise of legal indeterminacy (possibly unaware of the German scholarship by Volkmar Gessner236 and his colleagues) he never explains why U.S. legal thinking became, aside from economic theories of law, indeterminate. Kennedy does not explain how, exactly, economic argumentation displaced the numerous other competing schools of legal thought to dominate entirely U.S. legal discourse.237 Here, let me explain: the lack of scientifi233

“The turn away from critical theory was partly caused by the shift to the right of the whole culture that accelerated after 1980. As in the thirties, it had been briefly possible to study and use Marxism without academic career danger, then the window closed. However, two other factors were probably just as important in the particular world of the legal academy. The first of these was the rise of feminist legal theory and critcal race theory. Both pushed hard against the ultra-white-male ethos of the New Left, as well as against the critique of rights we developed in the early eighties. The second was the arrival of post-modernism (also known as post-structuralism), which pushed hard, from the other direction, so to speak, against the super-straightness of that same white male ethos, and against our clinging to structure, as an indispensable moment in critique. Combining critical theory with structuralism in order to study the evolution of legal doctrine as a species of Liberal theory ran up against the further problem that taking doctrine seriously was reactionary from the point of view not only of feminist legal theory, critical race theory and postmodernism but also from the point of view of the sociology of law and even of legal realism. The death of reason was not a lot more popular with a left nostalgic for the good old days of the Warren Court and now barely hanging on to a place in the national debate between retreating liberals and steadily advancing right wingers. It wasn’t surprising that quite different approaches to Classical Legal Thought emerged and mainstreamed.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxxii. 234 “In the modernist view (in opposition to the Marxist view), the critical project within Liberalism itself has led us to lose any hope of an ‘outside’ to, which we could resort in order to have a better way of doing official justice through reason. Reason is felo da se, dead by its own hand . . . meaning dead as a way to critique attempts to solve the problem through reason or as a away to figure out the situation within, which we have to decide politically or as a away [to] balance one’s checkbook.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxv. 235 “According to the argument of the manuscript, modern thinking about private law is both organized and disintegrated in the same way as thinking about constitutional law. The opposing elements are not explicit constitutional mandates . . . Rather, they are opposing orientations to how to deal with a small number of perennial conflicts (formality vs. informality, community vs. autonomy, paternalism vs. self determination and regulation vs. facilitation.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii. 236 Volkmar Gessner, Ali C. Budak, Emerging Legal Certainty (Empirical Studies on the Globalization of Law), Onati: 1998.

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city, the rise of axiological and epistemological relativism, individualism, and a naïve understanding of some of the problems of legal theory such as causation, logical implication, normative inferencing and the diverse uncoordinated character of the U.S. legal academy explain why U.S. legal theory defaulted to right wing economic analyses of law. It is not that the right won: rather, the left failed to argue coherently in favour of an alternative. Consequently the system defaulted to historical anglo-saxon individualism and atomism and the dominance of those assumptions, which went unchallenged because of U.S. global political hegemony. Critical thinkers, with the possibly unique exception of Catharine Mackinnon, have focused on streams of current legal thought rather than the basic assumptions that compel unjust outcomes. Fortunately for radical opponents to the status quo the claims of indeterminacy and the death of reason238 are simply overstated.239 Reasoning can and should be the basis of any genuine attack on militarism. Law and economics predominates in U.S legal thinking because it is a scientific view. In contrast, competing theories such as CLS painted itself into a corner by buying into post modern nonsense and could not explain or predict240 the legal order. Law and economics, despite Kennedy’s methodological opposi237 “Without a frank facing of these and similar questions, legal reasoning on the subject of trade names is simply economic prejudice masquerading in the cloak of legal logic. The prejudice that identifies the interests ofthe plaintiff in unfair competition cases with the interests of business and identifies the interests of business with the interests of society, will not be critically examined by courts and legal scholars until it is recognized and formulated. It will not be recognized or formulated so long as the hypostatization of ‘property rights’ conceals the circularity of legal reasoning.” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 179. 238 “American legal professionals had lost faith in deduction as an exclusive or reliable tool of legal interpretation and in the ideal of a rationally coherent and formally unified normative regime. They increasingly took it for granted that conflicts, gaps and ambiguities throughout the legal materials would make what became known as ‘policy’ analysis part of routine legal work.” Lon Fuller, Consideration and Form, 41 Columbia L.Rev. 799 (1941), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 313. 239 “. . . potentially indeterminate legal materials” (emphasis added), Lon Fuller, Consideration and Form, 41 Columbia L.Rev. 799 (1941), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 313. 240 “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 31.

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tion, won by default because while Kennedy could oppose L&E by contesting it’s assumptions he was not able to propose something determinate and normative to compete against L&E. This to me is not such a bad thing since there are, within limits, good L&E arguments. Kennedy describes as “the blocking Level”241 as that degree of abstraction, which a system will not tolerate – where the level of ambiguity and generality becomes too abstract to be considered a plausible warrant by the legal system. The concept is useful. For example, CLS was outside the blocking level of liberalism and no amount of inventing his own concepts is going to change that reality especially if he ignores material facts to generate a pure theory, which, like Kelsen’s, will be divorced from reality and thus unable to change it. The concept of a blocking level is surely useful and could be applied to explain for example how French civilianist courts have elaborately developed systems of general principles, which can be used deductively – a feature, which, aside from fundamental rights, is not found in the U.S. – an interesting asymmetry in fact. Contemporary legal thought is open textured242 and willing to consider just about any substantive argument. Policy243 arguments, cost benefit analy241 “The idea of the blocking level . . . is that all thought deploys concepts that are understood to permit deduction, and other concepts that are meaningful but too vague or abstract to permit anything like that kind of logical rigor. The blocking level is the level of abstraction below, which concepts have felt deductive ‘operativeness’ and above, which they are experienced as no more than indicators, or just as convenient labels for items without intrinsic logical connection. The blocking level can vary over time within a given discourse, so that one period’s ‘deduction’ is another period’s ‘abuse of deduction’ or ‘formalism.’ In the phenomenological approach, there is no outside perspective from, which to judge that a period experiences operativeness in concepts that are ‘really’ so vague or incoherent as to be useless, or, conversely, that a period failed to graps the ‘underlying logic’ of legal relations. The move to operativeness and the blocking level turns ‘formalism’ into a relative term. In other words, in the traditional mode, most extremely stated by Felix Cohen in Transcendental Nonsense and the Functional Approach” there is an objective criterion for deciding when there has been an abuse of deduction. The vice of CLT, according to Cohen, was that virtually all its concepts were in fact meaningless. In my version, all systems are deductive but they vary in the level of abstraction at, which deduction is experienced as convincing.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xviii. 242 “In a modern system, lawmaking is open-ended” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1039 (2004). 243 “In the contemporary mode of legal thought, legal interpretation is based on a combination of deductive argument in the mode of LFR, precedential argument, and what is called “policy argument.” Policy argument is sufficiently different from the

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sis244 and balancing tests are key features of the current legal system. Policy analysis245 serves to fill gaps (lacunas)246 in the law but policy is in fact not neutral247 as it reflects a distributive choice. Cost benefit analysis is a mechanical comparison of winners and losers.248 The problem is if the compar“traditional” modern modes so that it warrants, I think, an attempt to present it in the form of a new ideal type, rather than as a combination of the modes of legal reasoning typologized by Weber. Weber’s typological axes can nonetheless be helpful in this.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1071 (2004). 244 “This article addresses what I will call liberal law and economics. I mean by that term the body of literature and taught tradition that proposes and elabortates cost-benefit analysis as a way for a policy maker to decide what private law rules to recommend to judges, legislators or administrators who have power to set those rules.” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 387 (1981). 245 “The true genius of the policy analysis initiative was that it found a way to meet these objections in the mode of confession and avoidance. Because he operates within a mode of thought for, which LFR has been disenchanted, gaps and conflicts, some with high stakes are inevitable. That means that “value judgments” are also inevitable. All that can be hoped for is to make them in the most rational way possible, that is, in the way posing the least danger (not no danger at all) of incalculability . . . This is accomplished within the contemporary mode of policy analysis by incorporating the question of the calculability of the chosen rule, and the question of the appropriate division of lawmaking power between judge and legislature, into the policy calculus itself.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1074–1075 (2004). 246 “Policy analysis presupposes that the interpreter has to decide in the presence of a gap in the system of valid norms, or that he has to apply a norm that in its own terms calls for policy analysis, or that the circumstances for some reason permit application of a norm derived from policy analysis to displace a deductively derived norm. The analysis presupposes that there are many policies, or desiderata, in rule making, that they often though not always conflict, that they are well conceptualized as forces or weights or vectors in a force field, and that they vary in force or weight according to the precise factual circumstances to, which they are applied within the field. Policies come in conflicting pairs of different types, including conflicting welfare arguments, conflicting moral maxims, and conflicting subjective rights. There are also as we will see an important class of “institutional” policies.” Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings Law Journal 1031, 1072 (2004). 247 “Again, the origins of the policy approach were by no means neutral. The policy approach was invented by people looking at the rules of the laissez-faire state, the late nineteenth century structure of rules, and saying, “These rules are being accepted as just, inevitable and necessary and good, when in fact they are none of those things.” If we start questioning why they are there, and what they are good for, we are quickly going to come to the conclusion that many of them are

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ison is merely “who wins and who loses” that would empower the wealthy249 – if there is more net gain to the winners then they win even more creating greater wealth inequality. Pareto optimality,250 that no person be harmed by the change, is unrealistic – with a market of millions of people at least some will be hurt by any change. Pareto optimality is also fundamentally conservative because it defaults to the status quo, however unfair that may be. There are also methodological problems with cost benefit analyses. Markets fail.251 Transaction costs always exist252 and are fatal to even handed redistribution not nearly as good as they look.” Duncan Kennedy, The Political Significance of the Structure of the Law School Curriculum 14 Seton Hall Law Review 1, 7 (1984). 248 Scholars in this movement propose that the policy maker should add up the gains and losses to all parties affected by the choice to fix an entitlement in a particular way. They then argue that it makes sense (is ‘efficient’ or is ‘potentially Pareto superior’) to fix the rule in the way that will generate the largest possible net excess of gains over losses.” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 387–388 (1981). 249 “I want to argue in this article that the program of generating a complete system of private law rules by application of the criterion of efficiency I sincoherent. The concept of efficiency is indeterminate – it cannot yield an answer – if we try to apply it to the whole system of private law rules. If we wish to use economic analysis to generate a determinate ideal private law regime we have to make a series of value judgments that are more controversial, because more overly political than that involved in saying that we should make changes who benefits to the gainers exceed the costs to the losers.” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 388 (1981). 250 “What makes the efficiency or cost-benefit analysis attractive and interesting is that it appears to involve only one rather uncontroversial (or at least apolitical) value judgment. If a change in the legal regime helps those who gain by it more than it hurts those who lose it is a good idea to put into effect. This maxim seems equally relevant whether we are inventing a rule for a previously unknown situation (satellites) or are revieinw ghte rules in force to see if it is desirable to change them. Insomuch as the goal of efficiency has been a factor in past choices to set rules one way or another, it will also be helpful in understanding the rationale of the rules in force.” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 388 (1981). 251 “Cost benefit analysis is intended to provide a technique for deciding when market failure has prevented private entrepreneurs from providing a good or service for, which people would gladly pay if its price were not exaggerated by transaction costs, freeloader problems and the like.” “Numerous problems arise in trying to value various kinds of costs and benefits. The normal procedure is to try to imagine how affected parties would value them, generally assuming that they do so under their existing budget constraints. The analys thus usually accept the existing distribution of income as a powerful factor in the valuation process. However, there is no logical reason to avoid valuation based upon some hypothetical budget constraints. Nor is it illogical to consider the project’s potential effect on income distribution” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 390 (1981).

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from an unfair (and in all events mythical) “original position”.253 Finally, it is impossible to mimic markets in valuations of goods where there are no buyers or sellers.254 Is this a thesis of general economic (general) indeterminacy?255 No, it is not a general theory. Rather, it is a special theory. Where there are no markets in place, where transaction costs are severe and in the face of market failure, market based economic analysis is impossible. In other words, though markets can and mostly do function, hoping to solve the problem of market failure by creating a quasi market is unrealistic because of the lack of the basic features of a market that created the problem of market failure in the first place. The economic irrationality and indeterminacy that Professor Duncan Kennedy correctly describes256 does at least exist as a special instance of the general market. I would hesitate to describe it as a general problem of market economies if only because general theories seem to inevitably collapse. Aristotle points out that the questions of distributive justice (i. e. social justice – state intervention or no, to who and how) are subject not to natural justice but to positive law and vary with place and time. The constitutive rules of the marketplace, for Aristotle, are subject to positive and not natural law. The transactional rules within the market are however subject to natural law. In other words: initial public distributions are arbitrary but subsequent private transactions are natural. Aristotle and the 252

Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 387 (1981). p. 415. 253 “It is implicit in the Coase Theorem that if there are transaction costs it is possible for an entitlement to be set inefficiently – i. e. it is possible for the setting of an entitlement to generate an allocation that is potentially Pareto inferior to the allocation that would have occurred had the entitlement been set differently.” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 392 (1981). 254 “Numerous problems arise in trying to value various kinds of costs and benefits. The normal procedure is to try to imagine how affected parties would value them, generally assuming that they do so under their existing budget constraints. The analyst thus usually accepts the existing distribution of income as a powerful factor in the valuation process. However, there is no logical reason to avoid valuation based upon some hypothetical budget constraints. Nor is it illogical to consider the project’s potential effect on income distribution” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 389 (1981). 255 “The basic notion of general indeterminacy is an obvious one and should not be controversial, although it seems to have received surprisingly little overt attention in the law and economics literature.” Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 422 (1981). 256 Duncan Kennedy, Cost Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford L.Rev. 387, 422–423 (1981).

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Austrian school of economics diverge: Aristotle is closer to Marx on the economy than to the Austrian school. Professor Kennedy argues that contemporary constitutionalism opposes teleological neo-formalism on the one hand against proportionality and policy oriented257 balancing tests258 on the other.259 However, policy arguments are a form of teleological argument. Moreover, proportionality as a relation of justice was already in the idea of law since Aristotle (proportional justice)260 and Cicero (law as the right relationship – recta ratio261 in accord with nature) and became particularly well defined at latest by Justinian in the field of self defence.262 The methods that he sees as embodiments of arguments centred around competing warrants are not necessarily and inevitably linked to the warrants. Moreover, the warrants are not necessarily competing – they can be mutually reinforcing. Thus indeterminacy, if it really exists, is only a special case and not the general rule. 5. Mediation Mediation exists to channel and control conflict arising out of contradictions. Though Kennedy claims to be an anarcho-Marxist he has also rejected Marxist theory263 on the subject of mediation.264 My difficult with 257 “Policy” Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 35. 258 “. . . weighing considerations of social advantage. Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 35. 259 “. . . the moderns have defaulted to more or less ad hoc balancing from situation to situation.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii. 260 “The just, then, is a species of the proportionate (proportion being not a property only of the kind of number, which consists of abstract units, but of number in general).” Aristotle, Nicomachean Ethics. 261 “[E]st quidem vera lex recta ratio, naturae congruens, diffusa in omnis, constans, sempiterna, quae vocet ad officium iubendo, vetando a fraude deterreat . . . [H]uic legi nec obrogari fas est, neque derogari aliquid ex hac licet, neque tota abrogari potest . . .” Marcus Tullius Cicero, De Republica: Scripta Quae Manserunt Omnia 96, bk. III, pt. 22, § 33, 11. 26–32 (K. Ziegler ed., Leipzig 1969) (Bibliotheca Teubneriana fasc. 39). 262 Digest of Justinian 43.16.3.9 (Alan Watson ed., Univ. of Penn. Press 1985). “Those who do damage because they cannot otherwise defend themselves are blameless . . . It is permitted only to use force against an attacker and even then only so far as is necessary for self-defense.” P. 291. 263 “In my conception, consciousness functioned to ‘mediate the contradictions of experience,’ rather than, as in the neo-Marxist formulation, to mask the internal

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Kennedy’s method is not the idea of conflicting principles or even the idea that there may be no general resolution to the conflict of principles. Rather it is the idea that the (supposed) lack of resolution to the conflict of (extra legal) abstractions (warrants) necessarily renders the legal system arbitrary, capricious and manipulable.265 Moreover, instead of going to the root and searching for the assumptions that drive the outcomes Kennedy is always looking to generate synthetic concepts to compare with each other. Naturally the results look indeterminate when one compares two conflicting abstract principles with no factual instantiation in the form of a case at bar. There is simply not enough information to create a determinate ex post result. Of course, if Kennedy were right and the judicial decision were akin to legislation this would be a real problem. However, judges, even on the supreme court, are not and do not want to be super-legislators because they lack adequate expertise. They want at most an oversight role in the operations of a system that is much larger than one they could control directly and of course (I think primarily) to adjudicate the case at bar properly. 6. Law as Logical Equations266 Law is at least as determinate as language and can be formalized. We can study law as sets of equations. For example, common law theft is the contradictions of the capitalist mode of production. In other words, my approach was modernist rather than Marxist in that as in many other respects.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xvii. 264 “Mediation differs both from symmetrical (or Hohfeldian) opposition and from countertheory because it acknowledges a conflict of claims and proposes a way to resolve it on the arguer’s side. The mediator argues for a principle or a balancing test that will settle the matter, either in general or in this particular case.” Duncan Kennedy, A Semiotics of Legal Argument, in Collected Courses of the Academy of European Law, Volume Ill. Book 2, 309, 322–323. Kluwer: 1994. First published in Volume 42 of the Syracuse Law Review, at p. 75. 265 “. . . in every field of law we should find the same habit of ignoring practical questions of value or of positive fact and taking refuge in ‘legal problems’ which can always be answered by manipulating legal concepts in certain approved ways. In every field of law we should find peculiar concepts, which are not defined either in terms of empirical fact or in terms of ethics but, which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy. Corporate entitty, property rights, fair value and due process are are such concepts. So to are title, contract, conspiracy, malice, proximate cause and all the magic ‘solving words’ of traditional jurisprudence. Legal arguments couched in these terms aer necessarily circular, since these terms are themselves creations of law” Transcendental Nonsense and the Functional Approach, 35 Columbia Law Review 809 (1935), in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 182.

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union of caption, asportation, and intention to deprive. That is, the logical analysis of law in terms of elements is entirely possible and plausible. I expect Kennedy’s theories on argumentation,267 will be his lasting contribution to legal science and not his efforts at universal theorization. The odd thing about modernity is its hubris. Law has existed since millennia. Many different theories of law have been imagined and tried. Law has been analyzed and laws have been synthesized from just about every perspective imaginable. Thus, there is something to be said to consider legal history when trying to understand contemporary laws. Even if the economically productive base did not, in the final analysis, play the predominant role in the dialectic between the base and the superstructure’s ideological justifications and rationalizations of the economic base (I think it did), even if the base-superstructure relation were indeterminate or irrelevant, studying ancient laws would still be useful because there are literally billions of persons who have lived before.

V. “Outs” and Contestable Points Professor Kennedy wants to end oppression. My criticisms really go to the issue about what are the most effective ways to end oppression. I now suggest some ways Kennedy could defend his positions because there are points where he seems unclear or has not committed to a well known argument. I would like to see his arguments improve so that they can be useful to ending oppression. So I offer these ways he could qualify his claims: (1) Kennedy does not yet seem committed either in favour of or against the distinction between practical and formal reasoning. It’s Aristotle’s distinction, but Hume rejects it. In conversations he seems, I think rightly, to start to qualify his critique of the death of reason not as the death of rationality (theoretical logic) but rather as the death of reasons (practical logic – phronesis). Hume rejects Aristotle’s distinction between practical and theoretical reasoning. I do not, because there are times when it’s useful to understand why an argument is logically valid 266 “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, – and nothing else. If you commit a tort, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference.” Oliver Wendell Holmes, The Path of The Law, in The Canon of American Legal Thought, Edited by David Kennedy & William W. Fisher III, Princeton: PUP (2007), p. 32. 267 See, e. g., Duncan Kennedy, A Semiotics of Legal Argument, in Collected Courses of the Academy of European Law, Volume Ill. Book 2, 309, 333. Kluwer: 1994. First published in Volume 42 of the Syracuse Law Review, at p. 75.

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(theoretical logic) but socially unacceptable (practical reasoning). Social reasoning is all about practical logic. If Kennedy takes up Aristotle on this point his thesis of indeterminacy becomes merely a problem of practical reasoning and thus soluble. I. e. his theory becomes just one more example of an unsuccessful effort toward a general theory, which collapses into a special theory, perhaps valid locally and in limited circumstances but not of universal application. (2) Kennedy uses the term “modernity” and “classical” too loosely. Both terms are well defined in other discourses. Modernity refers to the idea that progress is inevitable and inevitably good – modernity is really just an extension of rationalist principles of the enlightenment. Modernism also is about the universality of discourses such as progress/technology. That is, modernism is a universalizing idea. Kennedy could commit either to a modernist or post-modernist perspective but has not – I believe because he does not completely understand the distinction because post-modernism is so vague and inchoate. Post-modernity – and Kennedy sometimes self-describes as post-modern – rejects universal narratives and even the idea of progress. It also argues for moral relativism. I do not think it’s the way forward. However, if Kennedy completely commits to post-modernism (axiological and epistemological relativism) his ideas would appear more defensible. However, that would also make them useless as warrants for any argument. Truth and morality are relativized for post-modernism (and this is actually a pre-modern sophist idea, long ago rejected, correctly, by western science). So I do not think this is the way he should go. It would render his theory defensible but useless. Kennedy’s critique of early 20th century legal theory appears overbroad. Early 20th century legal theory was not always conclusory or circular. Nor was early 20th century legal theory always and everywhere an expression of a dying class or of bourgeois thought. Sometimes early 20th century legal theory was an echo of feudal and pre-feudal modes of thought. At other times it was a glimpse into a future where three quarter’s of the planet will not be on the brink of starvation. The implicit underlying (but rarely overtly expressed) class perspective Kennedy brings to the table is a bit reductionist. Kennedy does hint at the idea that Marxism is generally reductionist in his rejection of the base-superstructure distinction. However, the Marxist response is that the reductionism is avoided due to the materialist link expressed in the base-superstructure duality. One avoids reductionism by rigorous materialism, verifying one’s theses by comparing them to the real world. Professor Kennedy does however have one way out of all my critiques: he can declare his model of thought to be a pure formal system. Pure formal

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systems have no truth value. However, for that reason they also cannot effectively claim to be the basis for practical action. To me, that out would be dissatisfying because I do not think Professor Kennedy intends or intended to create a useless abstraction. Seeing legal theories as pure formal systems does not advance legal science. There are plenty of practical questions of social science such as law and poverty that can be and should be addressed by legal science before we are able to cavort in the towers of Hanoi.

E. Pedagogy I. Constructivism Where I wholly agree with Kennedy is in his pedagogy – where he has in fact been most successful but, which he has, at least at present, abandoned (temporarily?) as utopian. This is sad because his work on pedagogy was most influential. Putting women and non-whites in suits did not end exploitation but maybe it humanized some aspects of existence? This really is Kennedy’s burden: he’s trying to fundamentally reform a system wherein any reform simply rationalizes reaction into more effective oppression. Yet, his pedagogic mission was in fact the most effective tack to take because we must change ideas to change reality. Also, his postmodernism could allow him to take up the idea that he needs no single global solution but can achieve numerous local victories. I disagree with that analysis and think a fundamentally radical anti-war perspective is the only way forward and out of war after war. I concluded that slavery is less evil than war and that the people in the first world are not slaves. Since the people in the first world are not slaves and since war is evil the correct practice is simply to resolutely and constantly oppose each and every war as part of a permanent opposition whilst trying to free the global south from labour exploitation as well as from war. Kennedy is a constructivist building on the Frankfurt school and the work of Piaget268 and in the sense that he sees social reality as socially constructed.269 That is, people are not inevitably unequal for Kennedy. And 268

“The goal . . . was to introduce critical theory and structuralism including the Frankfurt school and (in my own case) the work of Claude Levi-Strauss and Jean Piaget into American jurisprudence”. Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. ix. 269 “That the Liberal ordering is ‘socially constructed’ is not to say that we can change it by recognizing it as such. The Rise and Fall’s [xxv] ‘death of reason narrative’ is that ‘our’ modern situation is one in, which we no longer believe that the

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this correct perception explains why he is definitely worth reading and grappling with since the greatest errors in western thought have been due to seeing inequality as inevitable, natural and good. Kennedy is also an epistemological constructivist,270 and while I am a materialist (ideas and reality reflect each other but in their mutual interaction ideas are determined more often than not by material facts) I agree from a pedagogical standpoint that students develop models of reality always and only by practice – by grappling with reality. Thus, constructivism is pedagogically speaking applied materialism, the praxis side of learning, from which theories develop.271 Kennedy is also a connectionist, correctly seeing that signification arises only out of the connections formed between intentional entities.272 Connectionism is part and parcel of constructivism. Again, I wholly agree. structure mirrors reality and have concluded that from within it the best one can do is balance conflicting considerations that reflect our contradictory ideas and emotions. This outcome is the result of the work of mutual destruction carried on by Liberal legal thinkers of all political persuasions as they ‘cleared the ground’ of their rivals before proposing their own versiosns of the project.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), pp. xxiv–xv. 270 “This idea is an adaptation of Piaget’s theory, in Six Psychological Studies (another book for young parent law students) of the developing infant’s ‘construction of the object’ by unifying the data obtained through sight, touch, smell, sound etc. The ‘aha’ moment is when the infant grasps all the data as pertaining to a single ‘thing.’ Whereas Piaget was a ‘genetic epistemologist’, i. e. believed that the infant got it right as to the truth of the object, The Rise and Fall was persistently phenomenological. In other words, the truth of the object for CLT was no longer its truth for the moderns. The idea of an ontology of rights and powers seems to me still very useful in understanding phenomena like the emergence of European quasifederalism.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxii. 271 “One way to do this is to attempt a kind of map of the subsystems composing a consciousness. We construct a map by asking whether a legal actor experiences a particular rule or doctrine as a possibly useful analogy in an argument about some other particular rule or doctrine. When we feel that an argument for X can draw on the arguments for Y, then, by definition, these two are parts of a subsystem. If the arguments for Y would never come to mind or would be dismissed as absurd in the argument for X, then they are parts of different subsystems. Another way of putting the same idea is that if your position about X puts a good deal of moral and intellectual pressure on you to take a particular position with respect to Y, then the two are part of a subsystem. If you experience no such pressure, they are not.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850–1940, 3 Research in Law and Sociology 3, 15 (1980). 272 “I am particularly interested in the connection between the forms of legal consciousness and what I will call judicial activism or interventionism. Judicial activism is a relative term indicating an unusually great willingness to treat judicial power as an autonomous, creative factor in the development of economic and politi-

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II. Research Networks Pedagogically, I noted the lack of scientificity but intellectual diversity of U.S. law scholars. I would like to say that this diversity can be the scientific basis for strengthening U.S. legal theory by networking these various perspectives on law to work collaboratively and scientifically. A research training unit is a group of legal scholars organized around the inquiry into a given theme at a given law school. For example, scholars interested in international human rights law at one school could form an RTU there. The RTUs coordinate research within one academic community and network with other universities RTUs to form research training networks. This is a wonderful way to coordinate research so that no one need reinvent the wheel. I had the great pleasure to be associated with four research training units in Europe – the unité de formation et recherche en théorie du droit at Paris X, Nanterre, a similar UFR at Paris II in taxation and finally and most significantly the Centre for European Law and Policy (ZERP) European private law and fundamental rights in Bremen (a member of the Marie Curie Research Training Network) and also the Sonderforschungsbereich Kognition at Bremen. An RTU is a working group of scholars concentrating on the same field of law. The RTU provides moral support encouragement and social interaction to all participants. Quality of scientific thought is improved since persons working in related fields quickly get to know each other, are not isolated and can exchange thoughts. Duplication of effort is avoided thereby. Informal peering also occurs. The RTUs teach students basic scientific method, offer advanced specialized courses, guide students’ research and coordinate students interests with those of private sector actors. A real scientific team of teachers and students is formed in the various legal fields at each university. RTUs studying the same or similar issues at different universities can and do form international research training networks. It’s really exciting because a lot of good work is accomplished. RTUs are normally associated with master’s programs in specialized fields. An RTU is usually also associated with dissemination of working papers and/or a law review. cal life.” Duncan Kennedy, Toward An Historical Understanding Of Legal Consciousness: The Case Of Classical Legal Thought In America, 1850–1940, 3 Research in Law and Sociology 3, 5 (1980).

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To my knowledge there is nothing like research training units or research training networks in the states – not yet at least. I think this would be a way legal scholars could help to work for greater justice.

III. Peer Review Finally it is worth pointing out that most U.S. law journals are not peer reviewed but rather are student edited. Richard Posner has written a good chapter explaining why U.S. law schools should implement peer review and how they might do so. I agree with Posner on the desirability of peer review.273 Likewise, European law journals could and should take up the U.S. practice of rigorous sub-citing and intensive editing by student editors.

F. Conclusion This chapter has tried to show how the human sciences generally, and especially legal science, are possible as examples of probabilistic (practical) reasoning. Dialectics allows us to approach the truth and approximately predict future outcomes such as “If you take the food from the shop without paying then you will pay a fine and/or go to jail”. Legal science is possible and thus law can be a tool for achieving justice. In this chapter I have also tried to make a friendly critique of Professor Duncan Kennedy, whom I have long admired for his willingness to challenge injustice on many levels. I have tried to explain why seeing law in scientific terms would be a better way to obtain the goal of social justice and ending oppression. I’ve tried to meet the points where I think Professor Kennedy is in error head on and openly while exposing places where I think his theory could, in its own terms, become more defensible because my critique, though scientific and consequent is also friendly. Moreover, my critique is in fact targeting U.S. legal theory generally. I’m simply using Professor Kennedy’s ideas as the most effective foil to draw out the systemic problems he correctly identified decades ago. I’m hoping that even now he is impatient about stopping injustice.

273 Richard A. Posner, Against the Law Reviews, Legal Affairs (Nov/Dec 2004). Available at: http://www.legalaffairs.org/issues/November-December-2004/review_ posner_novdec04.msp.

Chapter 12

Legal Indeterminacy and Autonomy of Law A. Introduction The legal indeterminacy thesis argues that law is indeterminate, either due to inherent linguistic ambiguity, or due to the nature of logical argument or because law is rife with antinomies.1 Parallel to this argument is another related argument, that law is a relatively autonomous discipline with its own inner logic, its own inner development, which functions essentially independently of other considerations such as market forces, political developments or moral considerations. The theories of legal indeterminicity and the theory of the relative autonomy of legal interpretation2 are related in that if law were indeterminate 1 “Law might be indeterminate for any of three reasons. The first is that language, upon, which law depends, is inherently vague. As a consequence, legal propositions cannot be given a formal structure. This school of thought, which is not unrelated to deconstructionism, is most often associated with Stanley Fish and his followers. Second, law might be indeterminate even if it could be given a formal structure. This is the argument made by those who endeavor to apply Gödel’s proof to law. Finally, law might be indeterminate because there is no such thing as ‘the law.’ We may call these three schools, respectively, linguistic indeterminacy, formal indeterminacy, and conceptual indeterminacy.” David R. Dow, Godel And Langdell – A Reply To Brown And Greenberg’s Use Of Mathematics In Legal Theory, 44 Hastings L.J. 707, 716 (1993). 2 “Autonomy of law: The ‘autonomy of law’ refers to a number of related but distinct claims: (1) that legal reasoning is different from other forms of reasoning; (2) that legal decision-making is different from other forms of decision-making; (3) that legal reasoning and decision making are sufficient to themselves, that they neither need help from other approaches, nor would they be significantly improved by such help; and (4) that legal scholarship should be about distinctively legal topics (often referred to as ‘legal doctrine’) and is not or should not be about other topics. A claim about the autonomy of law could be understood in three different ways: descriptively, analytically, and prescriptively. Descriptively, the question is what level of autonomy is assumed or encouraged by current practices within a particlar legal system. . . . Analytically, the question is whether law, by its nature, either necessarily is or necessarily is not autonomous. For an analytical claim, one would investigate the ways in, which legal reasoning is purportedly autonomous, and see whether such claims stand up to close scrutiny.” Brian Bix, A Dictionary of Legal Theory, Oxford: OUP (2004), 15–16.

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then law would necessarily also be autonomous. I argue however that law is not radically indeterminate, and that the indeterminacy thesis3 is taken too far, generally speaking.4 Likewise, I argue (contra Teubner5 and Duncan Kennedy) that law is not autonomous: law is in an interdependent relation with the economy, a feedback relation where both the law and the economy influence each other but, which in the end is determined more often than not by market forces rather than by legal structures. That is, I take a weak and purely descriptive view of law as determined mostly by market forces (secondarily, by moral considerations) rather than the amoral strong prescriptive view of law and economics proposed by Richard Posner. In my opinion the main cause of the misconception of law as somehow indeterminate is due to erroneous understandings of epistemology, which do not see the distinction between theoretical and practical logic. Modernity conflates theoretical and practical logic and thus take the law of identity (p or not-p), a valid rule of theoretical logic, and then misapplies it by using it also as a law of practical logic, essentially arguing that all values must 3 See, e. g., Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 harv. L. Rev. 1222, 1241 (1931); K.N. Llewellyn, Legal Illusion, 31 Colum. L. Rev. 82 (1931); Karl N. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 Colum. L. Rev. 431, 431 (1930). 4 “Indeterminacy: The argument that legal questions do not have correct answers, or at least not unique correct answers. The issue is sometimes presented differently: whether the legal materials are collectively sufficient to determina a (single right) answer to the legal question. This second formulation is based on the argument that certain legal issues might have unique right answers when extra legal materials (including moral principles or the background, training, or biases of the judges) are considered, but that the law itself is not determinate. Those who argue that law is significiantly indeterminate base that conclusion on a variety of grounds: on the general nature of rules, the nature of language (e. g. pervasive vagueness, or deconstruction); gaps or contradictions within the law; the availability of exceptions to legal rules; inconsistent rules and principles that overlap in particular cases; the indeterminacy of precedent; and the indeterminacy in applying general principles to particular cases.” Brian Bix, A Dictionary of Legal Theory, Oxford: OUP (2004), p. 97. 5 “Legal autopoiesis is probably most controversial in its insistence on legal autonomy. After all, modern law is shaped by external constraints, social pressures and political decisions. How can one, after the social science revolution in law, after sociological jurisprudence and legal economics, still describe the legal system as autonmous?”; “Deggau identifies legal autonomy in the ‘conditionalized legal normativity’ which is capable of producing the necessary surplus for autopoietic closure. Normativity, as the basis of legal autonomy, produces, at the same time, the specific relation of law ot other fsocial systems, since, in its normative structures, law has a ‘structural affinity’ towards other social systems. The vaery funcction of law si to congruently generalize normative structures in its social environment.” Gunther Teubner, Autopoietic Law: A New Approach to Law and Society, Berlin: De Gruyter (1988), p. 6.

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be either true or false.6 Arguments for legal indeterminicity are also based on misreadings of Gödel and Quine.7 Those misreadings are a secondary cause of the mistaken view that law is somehow (how?) indeterminate. Of course, if language were indeterminate or if truth were subjective then law would be indeterminate and thus, in a twisted sense, autonomous. However, language is not indeterminate. Moreover, truth is objective in that it is a reflection of the material world obtained dialectically. Since language and logic are not in fact indeterminate, law is not necessarily, i. e. inevitably, autonomous. I see law as part of the superstructure of society, a construct. This superstructure is extracted dialectically from observations of the material world and then used to try to change that world. The forces of production at the base of society and the superstructural rationalizations that grow out of that base (the relations of production, i. e. rationalizations such as the law, religion philosophy) are dialectically related, mutually influencing each other. Ultimately, the relations of production (superstructure) are more often than not determined by the forces of production (base) rather than the other way around. Law is not autonomous, not even relatively. And just what is “relative autonomy” – other than a self contradiction?8 “It’s independent – except when it’s dependent.” It’s a bit trite to say ‘everything is relative’ as if that means something deep. Relative to what? Subjective perspective? That would be sollipsism. Relative to other facts? 6

According to the concept of recursive fulfillment only propositions, which are able to be effectively described, counted, written or calculated are valid. Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 724. 7 See generally, Brian Leiter, Why Quine Is Not A Postmodernist, 50 SMU L. Rev. 1739 (1997). 8 “Autopoiesis: An approach to law developed by Niklas Luhman (1927–1998) and Gunther Tuebner (1944–) and others, under, which social systems, including law, are seen as (relatively) autonomous. Autopoiesis is the idea that many systems (both biological and social) have significant feedback or recursive mechanisms that allow the self-regulation of the system. ‘Autopoietic law’ starts from the notion that legal systems often are self refulating, self reinforcing, and self sustaining. Law is created, transformed, and justified according to its own rules; and autopoietic law discusses what follows from this fact. It is important to note that, at least in Luhmann’s version of autopoiesis, ‘law’ and ‘legal system’ refers primarily to the ‘discourse’ of law, not to some set of institutions. . . . The claim is not that law is ‘autonomous’ in the sense of being unaffected by external forces (e. g. political movements and cultural changes); autopoietic law accepts that such forces affect law, but the effects are transformed into legal terms (distinguishing what is ‘lawful’ and ‘unlawful’) by the normal legal processes. Under this approach, there is a sense, not always fully delineated, in, which law ‘acts’, ‘thinks’ or develops ‘on its own’.” Brian Bix, A Dictionary of Legal Theory, Oxford: OUP (2004), p. 18.

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Ok, equivocate. Sure, all objects in the universe are somehow inevitably related to each other. So what? The fact that all objects are related to all other objects does not imply something meaningful like, for example, that thus there is no objective truth. Nor does the fact that everything can be related to anything else, somehow, imply that moral values are subjective. Seeing all experience as relative to the observer is perfect atomism ending in solipsism. Seeing the relatedness of all facts as an argument either for moral relativism or intersubjectivism or outright subjectivity are false consequences drawn from a true but irrelevant premise. Those implications do not follow from the fact that all objects of sense experience are related to each other. The truistic fact that all objects can be related to all other objects is no great revelation of uncertainty or subjectivity of moral choice. “Relative autonomy” is then really just the same thing as “autonomy” with an equivocal weasel word thrown in as a hedge. And law is not autonomous, not even “relatively”. Rather than being “relatively autonomous” law is a (super)structure based ultimately on material reality, i. e. the economy. It is not autonomous, nor is it indeterminate. It is an objective reification from and thus dependent on market forces and conceptions of morality. Moral values incidentally are also in a mutual and dependent relation with market forces.

B. Truth I. Kurt Gödel, Indeterminacy and Autonomy Three erroneous ideas (1) that law is somehow (how?) indeterminate, (2) that truth is somehow subjective, (3) that law is (thus) autonomous stem in part from misreadings of the work of the mathematician Kurt Gödel. Gödel developed theorems about axiomatic systems. Gödel’s incompleteness theorem9 proves, simplified,10 that an axiomatic system cannot be both 9 Kurt Gödel, Ueber formal unentscheidbare Saetze der Principia Mathematica und verwandter Systeme I [On Formally Undecidable Propositions of Principia Mathematica and Related Systems I], 38 Monatshefte Fur Mathematik Und Physik 173 (1931). An English version can be found in From Frege To Godel: A Source Book In Mathematical Logic, 1879–1931, at 596, 596–616 (Jean van Heijenoort ed. & trans., 1967).

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complete and consistent: within any consistent formal system there will be statements, which are indemonstrable.11 One can either have an incomplete system or a self-contradictory system but a complete and non-contradictory system does not obtain. The problem is, the very purpose of an axiomatic system is to consistently and completely describe reality in a closed system.12 Gödel basically proves that to be impossible. The problem is however smaller than one thinks at first. The implication is not that axiomatisation is entirely futile, just that indemonstrable basic propositions (axioms and/or postulates) are inevitable. Why is this relevant to law? Gödel wrote about axiomatic systems. Law can be formalized and represented as an axiomatic formal system. Thus, Gödel’s theorems are relevant to law. Gödel’s theorems, though relevant, do not imply legal indeterminacy. Were law autonomous Gödel’s theorems would be a good warrant for the proposition that law be indeterminate. However, Gödel’s theorems imply that law is not autonomous – not that law is inherently indeterminate. Gödel’s theorems also imply (contra Teubner)13 that closure of a legal system from within is not possible, that at some point we ground our theories on postulates or axioms, which are indemonstrable and either self evident or admitted by convention and that at other points we must invoke extra-legal arguments to complete legal reasoning in the material world14 by appealing, for examples, to conceptions of morality and/or market values, i. e. material facts. 10 “(1) that within any consistent formal system, there will be a sentence that can neither be proved true nor proved false; and (2) that the consistency of a formal system of arithmetic cannot be proved within that system.” Ray Monk, Ludwig Wittgenstein: The Duty Of Genius, p. 295 (1990). “Gödel showed . . . that any such precise (“formal”) mathematical system of axioms and rules of procedure whatever, provided that it is broad enough to contain descriptions of simple arithmetical propositions . . . and provided that it is free from contradiction, must contain some statements, which are neither provable nor disprovable by the means allowed within the system.” Roger Penrose, The Emperor’s New Mind: Concerning Computers, Minds, and the Laws Of Physics 102 (1989). 11 David R. Dow, Godel And Langdell – A Reply To Brown And Greenberg’s Use Of Mathematics In Legal Theory, 44 Hastings L.J. 707, 712 (1993). 12 An axiomatic formal system must be logically independent, complete, and free of contradiction. 13 Gunther Teubner, Autopoietic Law: A New Approach to Law and Society, Berlin: De Gruyter (1988) (autopoietic system is closed), p. 2. Gödel’s theorem argues that the autopoietic system cannot be closed and consistent. 14 But see, Gunther Teubner, Autopoietic Law: A New Approach to Law and Society, Berlin: De Gruyter (1988), p. 4. “Circularity replaces extra-legal foundations of laws as does Kelsen’s fictitious Grundnorm.”, p. 4. But Teubner has not, so far as I have seen, shown why extra-legal justification should be abandoned in favor of circular reasoning.

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In addition to implying that law cannot be autonomous, Gödel’s theorems also imply that the problem with our thinking about axiomatic systems is not a problem of indeterminacy, but rather a problem about the nature of truth. The incompleteness theorem obtains because unprovable statements are inevitable due to the nature of truth. Statements are not always either true or false. And that is why you have inevitably incomplete axiomatic systems. This can be seen in that one could introduce truth/falsehood defiant propositions – propositions with no truth value – into a formal system without necessarily altering any of the existing propositions of a given selfconsistent axiomatic system. This shocking but true fact, that our thinking about legal determinacy and autonomy is clouded due to scholastic currents, which presuppose that all statements must either be true or false, will be revealed by exploration of the idea of truth, generally, and then some other less tricky and more well known paradoxes.

II. Theories of Truth It might seem odd that there is a controversy over just what truth is, however there is. Modernity since the scholastics often enthymematically presumes; wrongly, that all statements must be either true or false, only. That can be seen from the logical laws of identity (A = A) and of non contradiction. The enthymeme that all statements must be true or false, only, introduced to modernity by scholastics, is wrong. Not all values are true or false. The results of that error are various forms of relativism and subjectivism. Just what is truth? Let’s look at the competing theories to avoid confusion. 1. The Correspondence Theory of Truth I wish to argue for the correspondence theory of truth.15 The correspondence theory of truth argues that truth describes a relationship between our thoughts and reality.16 That is, a statement is true when its referent obtains – when there is a correspondence between the statement and the material world.17 One critique of the correspondence theory is that “facts with, 15 See, Correspondence theory of truth, Brian Bix, A Dictionary of Legal Theory, Oxford: OUP (2004), p. 44. 16 Pascal Engel, Truth 9–29 (2002). 17 Alan R. White, Truth 105 (1970).

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which propositions should ‘correspond’ cannot be identified independent of the sentences that express them’.”18 This may be why Quine takes up a correspondence-coherence theory of truth. Since I reject the linguistic circularity thesis, that language is inevitably circular (it is not, due to material referents) I am not compelled to take up coherence theory, though of course statements, which are true are also non-contradictory to other true statements. 2. The Consensus Theory of Truth According to the consensus theory of truth, truth arises as a socially constructed consensus. The problem with this view is that when large groups of people believe something, which does not correspond to the material world the facts of the world do not suddenly conveniently change to suit the wrong majority. In other words, truth exists independently of the observer. Large numbers of people believing something do not make the belief true. True things are true no matter how many or how few people believe them. I specifically reject the intersubjective view of truth proposed by some post-modernists. 3. The Coherence Theory of Truth The coherence theory of truth is similar to the consensus theory and is not much more tenable. The coherence theory of truth argues a statement, thought, or belief is true if and only if it is a member of a coherent set of propositions.19 For the coherence theorists, truth is determined by “its coherence or fit with what is known or at least with what is accepted”.20 Thus, coherence theory is really just a reiteration of the consensus view, but with a more rigorous deductive method.21 The problem with coherence theory is that a statement may be coherent with all other known statements and facts – yet still contradict the state of the material world, as when new information is discovered.22 False beliefs do not become true merely because we are ignorant of those facts, which would falsify them. Coherence theory puts the cart before the horse. True 18

Jaap Hage, Studies In Legal Logic, Heidelberg: Springer (2005), p. 177. Pascal Engel, Truth 14, 26, 34 (2002). 20 John C. Merrill & S. Jack Odell, Philosophy And Journalism, 71 (1983). 21 Elizabeth Blanks Hindman, When Is The Truth Not The Truth? Truth Telling And Libel By Implication, 12 Comm. L. & Pol’y 34 (2007). 22 Elizabeth Blanks Hindman, When Is The Truth Not The Truth? Truth Telling And Libel By Implication, 12 Comm. L. & Pol’y 34 (2007). 19

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statements are of course coherent, i. e. non self contradictory, but their truth does not arise out of their coherence. Rather, coherent statements’ truth arises out of the reflective connection of the truth statements to the material world. The coherence theory is an effort to get around the (supposed) problem of circularity in language.23 In any language a given term is defined by other given terms, such that A defines B defines C defines A. That is as true as far as it goes but does not go far enough. Language is ultimately rooted in material reality: The material referents of language are in fact objective. This illusory problem of circularity is escaped through the fact that language ultimately refers to sensate experience, to ideas derived from observations of reality. There are material referents in language, which permit language to escape circularity of definition. However, even if we understand that language is not ultimately circular or indeterminate due to its connection to the material world the coherence theory still has some use because, after all, true statements do not contradict other true statements. Thus, Quine argues for a correspondence-coherence theory of truth:24 “our statements about the external world face the tribunal of sense experience not individually but only as a corporate body.”25 All he is really saying there, in my opinion, is that true statements must both reflect material reality and be non-contradictory to other true statements. Quine may appear to be relativist,26 but he is not.27 Just as language avoids circular indeterminicity due to material referents, so Quine avoids indeterminicity by retaining the correspondence theory of truth as can be seen by his rejection of the analytic synthetic dichotomy. 23

See generally, Willard Van Orman Quine, Word and Object 24–25 (1960). “In my naturalistic stance I see the question of truth as one to be settled within science, there being no higher tribunal. This makes me a scientific realist. I keep to the correspondence theory of truth, but only holophrastically: It resolves out into Tarski’s disquotational version of truth rather than a correspondence of words to objects.” W.V.O. Quine, Comment on Lavener, in Perspectives on Quine 229 (Robert B. Barrett & Roger F. Gibson eds., 1990). 25 W. V. O. Quine, Two Dogmas of Empiricism, in From A Logical Point Of View 20, 42 (2d ed. 1980). 26 “. . . there is no absolute position or velocity; there are just the relations of coordinate systems to one another, and ultimately of things to one another . . . What makes sense is to say not what the objects of a theory are, absolutely speaking, but how one theory of objects is interpretable or reinterpretable in another.” W.V. Quine, Ontological Relativity 50 (1969). 27 “Have we . . . so far lowered our sights as to settle for a relativistic doctrine of truth – rating the statements of each theory as true for that theory, and brooking no higher criticism? Not so.” Willard Van Orman Quine, Word and Object 24–25 (1960). 24

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4. The Pragmatic Theory of Truth The pragmatic view of truth is that true statements are whatever is useful.28 Pragmatism is instrumentalist. For pragmatists “an idea is ‘an instrument with a particular function. A true idea is one, which fulfils its function, which works; a false idea is one, which does not’.”29 Of course, such a flexible definition of truth is a liar’s dream come true. To avoid that obvious problem prgamatists usually argue for a pragmatic-coherence theory.30 That merely displaces the problem to coherence theory where we saw that a coherent set of statements can nonetheless be contradicted by new facts from the material world. A pragmatic coherence theory, when pressed, must collapse into the correspondence theory because being effective and being connected to reality just so happen to coincide. Another problem with the pragmatic theory of truth is it is difficult to determine what exactly pragmatism is.31 There are in fact “a number of pragmatisms”.32 That ambiguity is the fault of the pragmatists – they hesitate to “insist on necessary and sufficient conditions for calling something a pragmatic theory”.33 The pragmatic view seems hardly objective and is potentially unprincipled. 28 “A somewhat less skeptical view may be the pragmatist view, although there is some disagreement over what the pragmatist view of truth is. The pragmatist view of truth, or at least one version of it, would be content using the predicate “true” if the statement to, which it belongs is useful or handy. A more principled pragmatic theory of truth would also require some level of coherence requiring that for a statement to be true, it must cohere with other statements or beliefs that we hold to be true. Thus, truth is not reduced to simply anything you want to assert at any time, regardless if they are useful; rather, assertions must be consistent with other assertions you would make. This is consistent with truth being relativist in a theory-dependent way (i. e., relative to the theory that determines the coherent set of beliefs) but not radically relativistic to anything you want to say at any time” Christopher Roederer, Negotiating The Jurisprudential Terrain: A Model Theoretic Approach To Legal Theory, 27 Seattle U. L. Rev. 385, 396–397 (2003). 29 Elizabeth Blanks Hindman, When Is The Truth Not The Truth? Truth Telling And Libel By Implication, 12 Comm. L. & Pol’y 34 (2007). 30 E. g., Catharine Wells Hantzis, Legal Innovation Within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr., 82 Nw. U. L. Rev. 541, 552 (1987) (“a pragmatic coherence theory of truth sees truth as a coherence among ideas”). 31 Steven D. Smith, The Pursuit of Pragmatism, 100 Yale L. J. 409, 410–11 (1990). 32 Margaret Jane Radin, The Pragmatist and the Feminist, 63 S. Cal. L. Rev. 1699, 1705 (1990). 33 Michael Sullivan & Daniel J. Solove, Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism, 113 YALE L. J. 687, 688 & n. 11 (2003).

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5. Truth Statements are Reflections of the Material World Late modernity considers logic to be one branch of mathematics. Contemporary theories of mathematics, following Hilbert, argue that mathematics is a purely formal system, not a reflection of reality, and that there is no correspondence between mathematical statements and empirical reality. This has allowed mathematics to void itself of metaphysical inquires and focus instead on technicity to explore in a structured fashion all possibilities without concern for possible metaphysical implications or concerns. This has allowed a formalization of logical inquiry to expose and resolve certain higher order abstract problems. This view of science as a purely formal exercise is taken up by neo-positivists as exemplified in the Vienna school. The most notable example in law is Hans Kelsen’s pure theory of law, which, if internally consistent, has no predictive or descriptive ability as to the material world. I reject the positivists’ effort at creation of a purely formal logic,34 a purely formal science of law, and take up Quine’s naturalization of philosophy35 and his rejection of the analytic-synthetic distinction.36 A less extreme view of the agnosticism toward the descriptive and predictive capacity of mathematics, logic, philosophy or other formalized systems of rule production is to see a formal system as a model. In this view, the formal system is still not judged experimentally based on its predictive or descriptive power. Rather the model may, or may not, have some factual correspondence to the material world, but it does not have to, and perhaps cannot due to the fact that sense perception is always only a partial comprehension of realty. The reasons for taking either of these views on formal systems are to avoid the metaphysical problems presented by such debates as the scholastics’ quarrel of universals. It permits the demarcation and limitation of the 34 “Sind die Gesetze, Schlussregeln usw. der formalen Logik Konventionen, oder sind sie Gesetze der Wirklichkeit selbst, oder sind sie nur Gesetze des Denkens? Der dialektische Materialismus beweist, dass die Gesetze der formalen Logik weder Konventionen noch irgendwelche dem Bewustsein a priori gegebene Denkformen sind, sondern dass es sich zwar um Gesetze des Denkens handelt, aber um solche, die in der objektiven Realität wurzeln, die durch Abstraktion aus wirklichen Zusammenhängen gewonnen wurden.” Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 721. 35 See generally, Brian Leiter, Why Quine Is Not A Postmodernist, 50 SMU L. Rev. 1739, 1740, 1746 et seq. (1997). 36 W. V. O. QUINE, Two Dogmas of Empiricism, in From A Logical Point Of View 20, 42 (2d ed. 1980).

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field of inquiry to a tractable problem because any question can lead to another question. I wish however to break from that view in the field of legal science. Propositions of law are predictions of and descriptions of reality. Viewing logic as a purely theoretical formal system with no practical predictive use does not advance our understanding of problems such as how to infer factual consequences from legal predictions or to infer one rule of law from another rule or much of anything else in law. Moreover, seeing logical statements as reflections of the material world allows one to reduce, and possibly entirely avoid, postulates. Postulated statements are decomposed into constituent elements, which are sense impressions or inferences from sense impressions. Likewise, propositions escape circularity and pure formalism due to their ultimate connection to some material phenomena. The linkage between material reality and statements is part of why the legal system is not radically indeterminate. Seeing logical propositions as reflections of reality allows one to use them heuristically, to argue analogically from one field to another. Though analogical arguments are imperfect in the sense of describing correspondence rather than congruence, and probabilistic arguments are only possibly, i. e. contingently, and not necessarily true, they are nonetheless useful for developing hypotheses for empirical testing. Of course, the purely abstract statements of mathematics may be untestable as pure formalizations. A less extreme view, which is prudent, is to suggest that rather than being necessary reflections of reality, mathematical propositions are only possibly reflections of reality. Since there are purely speculative propositions, propositions, which are no reflection of reality, this is the more correct view. Such propositions are purely formal. But even if mathematical statements are only possibly reflections of material reality, in law, at least, they are in fact reflections of reality. When we say “if you steal then you will go to jail” we are making a prediction about the material world, a practical (as opposed to theoretical) proposition, a probabilistic one, about what will happen contingent on occurrence of a future event in the world. So I take a view of logic and mathematics that was held by antiquity but rejected by late modernity. I argue that mathematical statements can be reflections of the material world, that mathematical statements are not inherently purely formal. I believe that this problem of the question of whether mathematical propositions have any real existence or are or can reflect material reality arose due to a flawed binary epistemology, which has tended to predominate in

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Western thinking since Aristotle. To counteract this and in all events to advance the science of logic, particularly logic as applied to law, I present a system of three and four valued logic with the values necessarily false (0), true (1), either true or false but not both and unknown, which (2) and unknowable (3). I argue that Western thought, Constrained to binary logic, tended to try to force real world phenomena into categories that were inapplicable resulting in various aporia.

C. Logic I. Practical versus Theoretical Logic The confusion about truth statements in law and legal determinacy is partly due to modernity’s rejection of Aristotle’s distinction between practical and theoretical logic. Theoretical logic concerns only those statements of reality that are necessarily true or false. This is the source of the view that statements must be either true or false. It is also the source of the view that logical statements must be deductive or defective. Both of those views are scholastic and modern gloss. They are distortions of Aristotle’s thinking. I describe this distinction in order to make it explicit thereby to avoid enthymemes such as “either true or false, only”. 1. Theoretical Rationality Theoretical logic concerns only necessary and not possible truths. Consequently, theoretical logic is not defeasible.37 Likewise, theoretical logic is not a temporal view of the world: statements of theoretical logic are nondefeasible – if true, they are true in all times and places. Likewise, theoretical logic does not consider such practical issues as who is speaking or why they are speaking. Identity politics and authoritarian reasoning, for example, are not the province of theoretical logic for that reason. It is a formal way of thinking wherein if our presuppositions and forms are correct we are able to then determine true knowledge, necessary universal truths. 2. Practical Reasoning Practical logic is radically different from theoretical logic, epistemologically speaking. They use similar forms, e. g. syllogistic, but in different ways due to differing presumptions. 37 See, Defeasability, Brian Bix, A Dictionary of Legal Theory, Oxford: OUP (2004), p. 50.

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Propositions of practical logic are not inevitably true. They are only likely to be true. Probabilistic reasoning, inadmissible in theoretical logic, is permitted to practical reasoning. Practical reasoning’s propositions are defeasible and temporal because they are only probably and not necessarily true. Practical logic considers who is speaking and why they are speaking as well as what is being said. Authoritarian reasoning and identity politics are valid within practical reasoning but invalid in theoretical reasoning. Practical reasoning is socially contextualized. Modernity, since Hume, does not generally recognize or use the distinction between practical and theoretical logic, unfortunately. The consequence of the failure to recognize the distinction is to amplify certain problems and obscure others, to create a worldview that is less accurate than it could be.

II. (Qua-)Ternary Logic 1. Interpretations (Values) of Statements I have argued that Gödel’s theorem points us to something, which becomes even clearer when we consider logical paradoxes such as Epimenides’s famous liar’s paradox (e. g., “This statement is false”). That paradox illustrates the limits of a purely binary logic: it is wrong to see the universe in terms of “either true, or false, only”. I wish to argue that statements are either definite (known) or indefinite. Known statements are either true or false (0 or 1, respectively). Indefinite statements are either unknown but knowable (2) or unknown and unknowable (3). Unknown definite statements are either true or false but, which they are is unknown. We do not know the truth value of the unknown definite statement, though we do know that it has a truth value. The unknown definite statement is either true or false but, which is not known. In natural language unknown definite statements could be represented with the word “maybe, maybe not”. For example, “Is it raining in Paris?” “Maybe”. We know that in Paris at any time either it is raining or it is not raining. If we do not know whether it is raining then we say “maybe”. We do not know the truth value of an unknown statement but we could know it – it is knowable, but not known. Unknowable statements are a bit more complicated. It may help to think of them as the abyss of inescapable doubt, metaphorically speaking. Unknowable statements do not have a truth value. The liar’s paradox (“This statement is false”) is an example of a statement with no truth value. What about statements like “Pegasus is flying but the unicorn is not”? Pegasus and unicorns do not exist. Since things, which do not exist cannot

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fly it seems true, that Pegasus is not flying. And if it is false that Pegasus is flying then it seems true that Pegasus is not flying, right? And a thing that is not flying is landed. So then Pegasus seems to be landed. However, that cannot be – Pegasus does not exist. So, Pegasus cannot be landed. So the statement Pegasus is flying seems to have no truth value because Pegasus does not exist. However, wait – “Pegasus does not exist” is a true statement about Pegasus. Ok, so Pegasus is not flying, not landed and truly does not exist. How are we to explain this strange conjunction? Recalling the correspondence theory of truth here might help. Pegasus does not exist. Thus, no statement about Pegasus, other than its non existence, can correspond to the material world. Thus no true statement about Pegasus is possible, aside from Pegasus’s non-existence. What about false statements about Pegasus? “Pegasus is flying” seems to be a false statement. However, “Pegasus is landed” also seems to be false. This shows that a false statement is not equivalent to the negation of an untrue statement. Clearly, some statements such as prayers and commands have no truth value. The liar’s paradox also has no truth value. I argue that it is not possible to say anything true about mythical creatures excepting of course existential statements about their non-existence. Even if I were wrong about Pegasus and his ilk there are clearly other statements, which are neither true nor false. The negation of a true proposition is not necessarily the falsification of the proposition. What about circles? Are they somehow different from Pegasus? Recall, a circle is a set of infinite points equidistant from a central point in a single plane. Circles however do not exist. First, an infinite number of points would take forever to draw. Second, perfectly equidistant placement would likely never occur either. So let’s suppose that the unicorn and the circle are both objects, which really only exist in our brain. Are truth statements about circles possible? I would argue yes, because, unlike the unicorn the circle is a reflection of material experience. It seems to me that the truths about circles are definitional truths. Leaving aside the problem of the truth value of statements about circles and mythical beasts there are clearly statements with no truth value (paradoxical liars, religious supplicants, imperious cops). Thus, we can and should distinguish between: a) definite statements, which are known to be true (truth value: 1), or conversely known to be false (truth value: 0) b) indefinite statements, which are known to be either true or false, only, but we do not know, which value this statement has – these statements

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are either true or false but, which is unknown – we do not know their truth value (truth value: 2) and c) indefinite statements, which are not only unknown, but are, moreover, unknowable (truth value: 3). The indefinite unknowable statements are neither true nor false – they or unknowable – we cannot know their truth value. With an indefinite and unknowable statement we cannot know its truth value. Examples of unknowable statement include falsidical paradoxes, prayers, interjections, and imperatives, at least.38 – they have no truth value and so are unknowable. 2. Truth Functors Every logical functor can be recast as an unambiguous natural language statement. That fact is consistent with my position that logic and mathematics need not be merely or purely formal and can be a reflection of the material world. Here I present some natural language versions of functors in order to help people avoid linguistic confusions. A very common confusion is using “or” as a synonym of “and” or vice verse. For example, if I say cruel and unusual punishments are unconstitutional, does that prohibit both cruel punishments and unusual punishments, or only those punishments, which are both cruel and unusual? Confusion of “and” with “or” (seen also in Latin with the word vel) is the most common ambiguity of natural language representation of logical propositions but it is not the only one. Linguistic imprecision exists of course, but is only the result of laziness, a lack of the intellectual rigor that would insist on precision. Linguistic imprecision is not inherent or inevitable to speech. Here are some common logical functors (operators), recast as natural language statements: – Conjunction: are p and q both true? – Disjunction: are either p or q true? – Exclusive disjunction: are either one, and only one, of p or q true? – If and only if: if p is true then q is true otherwise q is false. – Equivalence: p is true if q is true and p is false if q is false and vice verse. – Implication: if p is true then q is true otherwise p may be either true or false. 38 “Imperativen kommt im Gegensatz zu Aussagen weder Wahrheit noch Falschheit zu. Imperative sind zweckmaessig oder unzweckmaessig, adaequat oder nicht adaequat.” Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 723.

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The usual description of “if p then q” as “if it is wet then it is raining” contains an enthymeme. It should be recast as: “if it is raining then it is wet and if it is not raining then it may be wet or dry, only.” or as “if it is raining then it is wet otherwise we do not know whether it is wet or dry though it must be either wet or dry.”

Here are (qua)ternary truth tables for the basic functors: not p p– 01 10 22 if p then q and if q then p p=q pq = 001 010 100 111 122 202 212 222 if p then q p = > q; p = > q = –p v q pq 00 01 02 10 11 12 20 21 22

=> 1 1 1 0 1 2 2 1 2

pq q iff p pq iff 00 1 01 0

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p=>q 00 2 01 2 10 0 11 1 12 2 20 2 21 2 22 2 p and q p*q pq* 000 010 100 111 122 200 212 222 p or q p+q pq + 000 011 101 111 121 202 211 222

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True Implication (p = > q) * (–p = > (q* – q)) 001 100 0 011 100 0 021 100 0 100 001 0 111 001 1 122 001 2 201 222 2 211 222 2 222 222 2 pq – > 002 012 022 100 111 122 202 212 222

3. Multivariate Logic Invalidates Reductio Proofs Multivariate logic arose due to the inquiry into the universal validity of the law of the excluded middle.39 In trivalent logic the law of the excluded fourth term takes the place of the law of excluded middle.40 A reductio ad absurdum proof tries to prove a proposition negatively, by showing that the opposite argument is absurd. Reductio proofs rely on the law of excluded middle (also known as tertium non datur) which holds that p or not-p. Multivariate logic rejects tertium non datur because multivariate logic admits more values than true or false. A reductio argument only holds true if all other alternatives are absurd. Thus, when logic is seen as multi39 “Der historische Ausgangspunkt des Aufbaus mehrwertiger logischer Systeme ist die Fragestellung nach der universalen Gueltigkeit des Satzes vom ausgeschlossenen Dritten”. Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 718. 40 Georg Klaus and Manfred Buhr (eds.), Philosophisches Woerterbuch, Leipzig: VEB Bibliographisches Institut (1974), p. 719.

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variate, not binary, reductio proofs become much trickier since the law of the excluded middle (p or not-p) no longer holds and equivocation becomes possible.

III. Puzzles in Law 1. Antinomies in Law To avoid confusion I will use antinomy exclusively to refer to legal self contradiction and paradox to refer to the broader problem of apparent or actual logical self contradiction. I use Perelman’s definition of antinomy as an evident contradiction between rules41 and distinguish that from Quine’s definition of paradoxes as either shocking but true or false and misleading, which he refers to respectively as veridical paradox and falsidical paradox.42 I think using Perelman’s definition of antinomy and Quine’s definitions of paradoxes is the most sensible way forward, for there are distinctions between mere contradictions of competing rules, where a logical solution is possible (the antinomy), as opposed to non-problems, where a contradiction only appears to exist (veridical paradox) and the contradiction where in fact no exit is possible because of some error in our thinking (the falsidical paradox). I am aware Quine uses antinomy43 as a superset of paradox and that is contrary to Perelman’s use of the French cognate term antinomie. but I think it is best to use Perelman’s definition of antinomy and obviate confusion thereby. Antinomies arise in law constantly and their resolution is a regular task judges are confronted with. Antinomies arise in law in part because the law is presumed to be a unitary non-conflicting system. However, though the unitary and non-contradictory nature of law is assumed, and probably a valid presumption within civilian legal systems, rules conflict in practice all the time, and indeed legal dualism argues that each different law-giver can create laws, which conflict with the other law-givers. That is, there is no unity of all rules at the global level. We definitely observe conflicting irreconcilable rules of law colliding in legal practice regularly. Even within a 41 “Antinomie . . . évident contradiction entre les règles” Ch. Perelman, Logique Juridique, Paris: Dalloz (1976), p. 41 (citing Tribunal d’Orleans 29 XI 1951). 42 W.V. Quine, The Ways Of Paradox And Other Essays 7 (Random House Publishers 1966). 43 “. . . [a]n antinomy produces a self-contradiction by accepted ways of reasoning. It establishes that some tacit and trusted pattern of reasoning must be made explicit and henceforward be avoided or revised.” W.V. Quine, The Ways Of Paradox And Other Essays 7 (Random House Publishers 1966).

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single legal system we often see conflicting legal obligations whether issued by the administration, judges, or by the federal or federated state legislature(s). Even though ontologically speaking monism is more valid than dualism, juristically speaking dualism seems more correct than monism. There are a multiplicity of sources of rules; rules are not necessarily hierarchically arranged. Gödel’s theorem seems to imply that antinomy in law is inevitable. The law is a defeasible set of rules and arguments about rules. In that regard, at least, there is in theory (unlike in practice) no legal certainty or legal finality, only conflicts, between lawyers, before judges about rules issued by the legislature or custom (including the custom of stare decisis). In practice of course final decisions are the usual case. Theoretically speaking however, and consistent with Popper’s epistemology, propositions of law are not affirmative statements, true for all time. Rather they are, as yet unfalsified hypotheses, tentative and ever subject to refutation. a) Conflicts of Law The most obvious sort of non-unity creating an antinomy in law is the simple conflict between two legal orders – when for example a French citizen is injured by an Italian in an auto-accident in Germany. The resolution of such conflicts is complicated but not impossible. Conflicts of laws44 only appear problematic if one believes that the law is a unitary non-conflicting set of rules.45 That is clearly empirically not the case. Rules conflict constantly. There is more than one source of rules and numerous differing interpretations of those roles. b) Lacunae Conflicts of laws occur from “too many laws”. The opposite problem, too few laws, also creates antinomies. Lacunae – gaps in the law – arise due to a lack of legislation, as when a new invention changes the presuppositions of the laws, or when the legislator overlooks something. Again, lacunae are only problematic if one believes the law is a complete and consistent structure of harmonious rules – a unitary hierarchy – and not a set of competing and conflicting conditionals that incompletely describe reality.

44

Gunther Teubner, Recht als Autopoeitisches System. Frankfurt: Suhrkamp (1989), p. 123. 45 Gunther Teubner, Autopoietic Law: A New Approach to Law and Society, Berlin: De Gruyter (1988), p. 4.

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2. Paradox The simplest definition of paradox is a belief that goes against common opinion, the literal meaning of the term. A related idea associated with the word paradox is a belief that goes against one’s own intuition. However, these sort of paradoxes are not aporia. They indicate only an area where our thought, or generally received opinion is wrong – not an area where thought is impossible, so to speak. I argue that certain paradoxes arise out of the erroneous enthymematic presumption that all statements must be either true or false, only. Those paradoxes, which go against common opinion yet are true are known by Quine as veridical paradoxes – they are shocking but true statements. Quine distinguishes veridical paradoxes from falsidical paradoxes. Falsidical paradoxes are not shocking-yet-true – they are false and misleading. They indicate that we need to rethink some aspect of our conceptual apparatus. For this reason paradoxes are not mere intellectual curiosities, they are heuristically very useful devices for improving one’s thought. Paradox, aside from being very useful heuristically is also interesting to lawyers because certain logical paradoxes reappear in law as legal paradoxes, and other paradoxes arise out of the law itself. Let’s consider Epimenides’s liar’s paradox. The liar’s paradox in its various forms comes down to the phrase “This statement is false.” Such a statement is a falsidical paradox, in that it is misleading. However, I wish to argue that the liar’s paradox in fact reveals something fundamental about statements: that not all statements are either true or false, and that as a consequence the negation of a statement does not always imply it’s opposite. The liar’s paradox demonstrates not systemic indeterminacy but the multivariate character of truth. Sometimes people argue, or at least seem to believe, that the existence of paradoxes and/or Gödel’s incompleteness theorems demonstrates semantic indeterminicity and thus supports relativist or subjectivist views (whether as to ontology, epistemology, or axiology). I disagree with those views. I argue that the existence of paradoxes – whether falsidical, such as the liar’s paradox, or veridical, like Gödel’s theorems – does not demonstrate rampant systemic indeterminacy, supportive of a relativist or subjectivist position. Rather, the existence of paradoxes shows us the scholastic worldview, that all statements must be either true or false, is incorrect. Gödel’s incompleteness theorems46 similarly reveal the basic problem of thinking that 46 “Gödel showed . . . that any such precise (“formal”) mathematical system of axioms and rules of procedure whatever, provided that it is broad enough to contain descriptions of simple arithmetical propositions . . . and provided that it is free from

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statements must be either true or false, only. The fact that any axiomatic system is theoretically incomplete does not create random or rampant systemic semantic indeterminacy. As Aristotle noted, statements may either be true, false or have no truth value. The liar’s paradox has no truth value. It is not false, nor is it true. It is unknown and unknowable. What are we to make of statements, which have no truth value? Is it possible to further distinguish among statements, which have no truth value so as to develop a heuristic wherein we can know whether we should pursue that piece of information, or ignore that other piece of information? I argue that it is possible to further refine our understanding of statements, which have no truth value beyond Aristotle’s account of prayers and interjections as having no truth value. Aristotle seems to regard statements that have no truth value as non-statements. He uses the example of prayers, commands and interjections as statements that are neither true nor false. The scholastics, in contrast, sought to find in every statement either truth of falsehood, likely following the idea that statements with no truth value are non-statements, pseudo-assertions. However, that does not in fact cover the entire class of statements that have no truth value. I argue we should look at statements of truth as either true, false, unknown or unknowable. That epistemology resolves certain paradoxes and illuminates problems like statements about circles and mythical creatures. a) Paradoxes of Material Implication Reveal the Inadequacy of Binary Logic If the moon is green then Paris is the capital of France is, by the usual binary logic, an implication which is true. The paradox of material implication exists, and its existence indicates that something is wrong either either with our interpretation of the logical functor implication or with the use of a binary logic. Usually, people who run into and understand the paradox merely accept it as a kind of mathemetical artefact. However the correct response is to note that binary logical implication does not reflect what we mean when we say “If . . . then . . .” in ordinary speech, either because of the nature of entailment, temporality, the nature of truth, or some combination thereof. My resolution is to simply note that there are at least four truth values in the field of theoretical rationality and to graph out an implication functor wherein nonsense statements like “if cheese then paris” are contradiction, must contain some statements, which are neither provable nor disprovable by the means allowed within the system.” David R. Dow, Godel And Langdell – A Reply To Brown And Greenberg’s Use Of Mathematics In Legal Theory, 44 Hastings L.J. 707, 713 (1993).

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not valid implications just because the premise and consequence both happen to be true. b) Paradox in Laws One example of a paradox in law is the paradox of the legislator – ‘this prescriptive statement is ineffective’. This is a variant of the liar’s paradox47 and we already know how to get out of those. A more problematic paradox is the paradox of self binding – how can a legal body logically obligate itself? It cannot, strictly speaking. This brings us to a third and perhaps most difficult paradox: the state is a legal fiction, in fact most, perhaps all, laws are fictions. However, if the law is a fiction then how is it different from a mythical creature? How could any logic apply at all to it? I do not present solutions to the paradoxes of self-binding or of legal fictions. Rather I present them as puzzles hoping to inspire some reflection. Toward that end I wish to examine logical statements concerning intentional entities. c) Circling the Square: Statements about Pegasus What about Pegasus, finally, have we learned? We know that Pegasus does not exist. Does that mean that all other statements about Pegasus are false? Or that they have no truth value? I argue that: (1) statements about Pegasus, other than the existential statement that Pegasus does not exist, are not true and, moreover, (2) that false and not-true are not equivalent to each other. In binary logic the negation of a negation is an affirmation. Usually it is argued that it should also be so in ternary logic. However, this is because of a confusion. Let us consider the proposition: – A false statement is not true. – A true statement is not false. – A statement with no truth value is not false. – A statement with no truth value is not true. That reveals the potential for equivocation – a statement with no truth value is not false, and a true statement is also not false, yet true statements have a truth value and are very different from statements with no truth value. The latent equivocation steps clearly into view when we recognize that 47 “. . . le présent énoncé prescriptif doit être inefficace” Ch. Perelman (ed.), Etudes de Logique Juridique, vol. 7 Bruxelles: Bruylant (1978), p. 93.

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not all statements are true or false, and thus not all untrue statements are false. The true statement and the statement with no truth value are both not false and this creates the potential for equivocation and paradoxes. Is the negation of a statement with no truth value a statement with truth value? Consider the negation of the liar’s paradox: “This statement is NOT false”. It clearly can have a truth value. But, by way of contrast, consider the negation of a command. The negation of a command is itself a command and thus also has no truth value. Negations of prayers and interjections likewise have no truth value. So, the negation of a statement with no truth value may or may not have a truth value. This too then underscores the necessity of distinguishing between statements that are true, statements that are false, and statements, which are neither true nor false; we must then distinguishing between statements, which are knowable, but not yet known (whether Mars has life, for example) and statements, which are unknowable (liar’s paradoxes, for example). Let’s go back to Pegasus. What about negations of statements concerning Pegasus? Suppose I say “Pegasus can fly”. Pegasus does not exist. Only things, which exist can fly. Consequently Pegasus cannot fly. So the statement “Pegasus can fly” is not true. However, the negation “Pegasus cannot fly.” is also not true. Statements about things, which do not exist are, with the exception of existential statements, untrue as is their negation. Is there a difference between statements about a Pegasus and statements about a circle? What about statements about splorp? Splorp is undefined. It could mean anything, has never existed and never will exist. Is splorp different from Pegasus, and is Pegasus different from circle? Both circles and Pegasus are different from splorp as they are reflections of empirical experience. Splorp is totally undefined and so it is impossible to say anything about splorp beyond that it is undefined. Pegasus is an imaginary recombination of existing animals and does not exist. A circle is a formal arrangement. If people stopped observing circular material objects the abstraction from those objects would not cease to exist. Pegasus, in contrast, has never existed. Yet, Pegasus does not exist is a true statement about Pegasus. Discussing the truth value of irreal statements is useful because it allows us to see that nominalist epistemology is correct. However, synergies such as economies of scale, specialization, trade, standardization show that the atomist method is incorrect: the whole is greater than the sum of its parts. Nominalism and holism can together reach cognitivism thanks to materialism with, which I wish to complete this chapter.

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D. Conclusion: Law and Morality When law and morality diverge it is evidence of social conflict over what is moral. That is evidence that norms are not unitary, contra Kelsen. It also represents a lacuna in the system. To the point of the right relation between law and morality, John Rawls argues that there is a duty or right to disobey unjust laws, i. e. laws, which are immoral.48 How is that possible? It is possible by appeal to values outside the terms of law itself. I would like to close this chapter with a final puzzle because I think it shows how the open texture of law speaks not to indeterminacy or legal autonomy but to the dependence of law not only on material market forces but also on moral conceptions of ethics. Terms are open to competing interpretations. That is, the law is open textured precisely because law is not a closed system and appeals to teleological values outside of legal texts such as moral values and economics. The open texture of law points not to indeterminacy but to the dependent character of legal argument on extra-legal justifications such as morality. Law is an intensely moral process, which is why it is so hotly contested. Law and morality, at most, are only temporarily separable for analytical purposes. Such analysis of law is however, by definition, incomplete because analysis decomposes objects into their constituent elements and thus ignores holistic insights. Analysis does not and cannot reveal synergies. Ultimately the appeal to morality, which underlies any claim to just law explains why law is not relatively autonomous, why it cannot be a closed axiomatic system. Arguments that law is indeterminate or autonomous or both are thus really arguments for a purely positivist and volontarist view of law. They are founded on flawed epistemological assumptions about the nature of truth and morality. Law is dependent on market forces and thus is not indeterminate. Law is also, and in my opinion more importantly, dependent on moral and ethical considerations and thus is not purely positivist or voluntarist and can be just. Lex mala – lex nulla.

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John Rawls, A Theory of Justice Oxford: OUP (1973), pp. 350, 363, 371.

Chapter 13

Rights Discourse A. Introduction Duncan Kennedy presents a deep critique of contemporary legal thought, which he summarizes as a “death of reason” critique.1 One of his key claims is that normative inferencing, central to the formalization of legal thinking in conceptual jurisprudence (Begriffsjurisprudenz),2 proved at best problematic, at worst impossible; that the hope that conceptual jurisprudence could close all legal gaps (lacunes) and solve all paradoxes and problems in law was misplaced;3 that rather than enjoying foreseeable justice based on law, we live under an ad hoc system, which often fails to identify and implement substantive justice.4 Where I agree with Kennedy is 1 See, Duncan Kennedy, A Critique of Adjudication [fin de siècle] (Harvard University Press, 1997), available at: http://www.law.harvard.edu/faculty/dkennedy/ publications/critique.pdf. 2 “The transformation of private law thinking was accomplished by the iteration and reiteration of the public/private distinction to differentiate fields within the private domain, and then to further internally differentiate each field. The upshot was a ‘will theory’ within private law, with the will being either the will fo the parties or the will of the state.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xiii. 3 “The irony was that the very success of the enterprise of subsuming all legal relationships under a single small set of concepts eventually destroyed belief that it was the concepts itself that determined the outcomes of their application. When the abstractions had performed their task of integrating legal thought, it became apparent that while pre-Classical particularly had been irrational, the new unity was merely linguistic – a verbal trick – rather than substantive reconstruction. We came gradually to see that there were an infinity of possible results that might all plausibly find expression in the new conceptual language, and, what was worse, might all claim to be derivation of the abstract governing principles. The concepts then could be nothing more than a vocabulary for categorizing, describing and comparing, rather than the elements in a method for deriving outcomes. The famous principles, taken together, appeared either self-contradictory or so vague as to be worthless as guides to particular decisions.” Duncan Kennedy, The Rise and Fall of Classical Legal Thought, Cambridge: AFAR (1975 m/s; 2006), p. xxiii. (cited from p. 251). 4 See, generally, Duncan Kennedy, The Rise and Fall of Classical Legal Thought, 1975 (manuscript); reformatted 1998 (Washington D.C.: Beard Books, 2006).

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that the legal system in fact often fails to work substantive justice. However, rather than presenting an abstract theoretical critique of why the system cannot work5 (and it often cannot – just look at the issue of torture6 to see what I mean, or go directly to the death penalty for more injustice)7 I try to present concrete material propositions of where and how the system could work – if it wanted to. I do that in order to empower other critical jurists and also because U.S. global hegemony is not unbeatable. An alternative to kill-for-oil federal imperialism in the name of freedom to torture could exist. Rather than creating concepts that may be taken up by a supreme court in 100 years I would like to give judges tools to make decisions today that reach the right result even if the reasons are wrong. Though, I think my reasoning is correct.

B. Rights and Laws A key characteristic of contemporary legal thought is “rights discourse”. What is “rights discourse”? A discursive practice8 is a dialog (not a resolution) between different viewpoints. Rights’ discourse is the practice by various contending theorists to determine or impose some vision of “rights”. I argue that most rights’ discourses fail to persuade due to unscientific conceptual apparatus and mythological counterfactual views of reality. The term “right” like the term “law” is polysemic9 and ambiguous; due to overlap between the terms “right” and “law” most rights discourse is doomed to incoherent failure. Though most rights discourse is doomed to futility and irrelevance that is not because of some fatal flaw in the idea of the rule of law or of logic being somehow inevitably indeterminate.10 A dialectics of rights is possible.11 Legal science can and should extirpate ambiguity, poly5 See, e. g., Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Brown and Halley, eds., Left Legalism/Left Critique (Duke University Press 2002). 6 See, e. g., Eric Engle, The Alien Tort Statute and the Torture Victims’ Protection Act: Jurisdictional Foundations and Procedural Obstacles, 14 Willamette J. Int’l L. & Dispute Res. 1 (2006). 7 Death is Unconstitutional: How Capital Punishment Became Illegal in America – A Future History 6 Pierce Law Review 365 (2008), available at: http://www.piercelaw.edu/assets/pdf/pierce-law-review-vol06-no3-engle.pdf. 8 Michel Foucault, The Archæology of Knowledge, Londong: Routledge (1972). Chapter 1 The Unities of Discourse. 9 See, e. g. Steven L. Winter Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes For Law, 137 U. Pa. L. Rev. 1105, 1213 (1989). 10 See. e. g., Jefferson White, “Indeterminacy” in Dennis Patterson, A Companion to Philosophy of Law and Legal Theory, Cambridge: Blackwell (1996), p. 489 (critiques the theory of radical legal indeterminacy).

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semicity, and confusion from rights discourse so as to compel dialectical resolution of the conflict over what is right and what rights are.

C. Rights Discourse I. Dworkin The most famous – and in my opinion failed – contemporary view of rights discourse is propounded by Ronald Dworkin. Dworkin tries to describe “principles”12 as “rights”13 and distinguish them from “policies”.14 “When lawyers reason or dispute about legal rights and obligations, particularly in those hard cases when our problems with these concepts seem most acute, they make use of standards that do not function as rules, but operate differently as principles, policies and other sorts of standards. . . . I just spoke of ‘principles policies, and other sorts of standards’. Most often I shall use the term ‘principle’ generically, to refer to the whole set of these standards other than rules; occasionally however, I shall be more precise, and distinguish between principles and policies. . . . I call a ‘policy’ that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community . . . I call a ‘principle’ a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality. . . . The distinction can be collapsed by construing a principle as stating a social goal [emphasis added] . . . or by construing a policy as stating a principle . . . or 11 Elizabeth Schneider, “The Dialectic of Rights and Politics: Perspectives from the Women’s Movement” in D. Kelly Weisberg, Feminist legal theory: foundations. Philadelphia: Temple University Press (1993), p. 507. 12 Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 33. 13 “I call a ‘policy’ that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the commuinity (though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change). I call a ‘principle’ a standard that is to be observed, not because it will advance or secure an economic, political, or social situation but because it is a requirement of justice or fairness or some other dimension of morality. Thus the standard that autolobile accidents are to be decreased is a policy, and the standard that no man may profit by his own wrong a principle. The distinction can be collapsed by construing a principle as stating a social goal (i. e., the goal of a society in, which no man profits by his own wrong), or by construing a policy as stating a principle (i. e. the principle that the goal the policy embraces is a worthy one) or by adopting the utilitarian thesis that principles of justice are disguised statements of goals (securing the greatest happiness of the greatest number). In some contexts the distinction has uses, which are lost if it is thus collapsed.” Ronald Dworkin, Taking Rights Seriously, pp. 22–23. London: Duckworth (1977). 14 Ronald Dworkin, A Matter of Principle, Oxford: Clarendon (1985), p. 72.

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by adopting the utilitarian thesis that principles of justice are disguised statements of goals . . . In some contexts the distinction has uses, which are lost if it is thus collapsed.”15

So, Dworkin argues that principles, policies, and other sorts of standards operate differently than rules, to reach the conclusion that principles are privileged compared to other rules.16 He does not say how policies or principles (which are in fact meta rules – rules for deciding other rules) differ, logically, from other rules. They do not in fact. All rules are if . . . then conditionals. Meta-rules tell us how to choose and apply other rules, and that is the only ontological difference as far as I can see. Dworkin is probably trying to differentiate conceptual jurisprudence’s “rights” and “principles” from legal-process interest-balancing “standards” and “goals”. If so, the distinction would be ill put: policies and principles alike are teleological ends the law seeks to fulfil. Dworkin may also be trying to make a distinction between “legal rights” versus “collective (political) goals”. He writes: “Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole. . . . Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right.”17

The problem is, Dworkin has not adequately defined his basic terms: rights, principles, policies, goals and standards. A good typology might distinguish among “rights” as individual or collective, as “procedural” “negative” “freedoms from” or “affirmative” “rights to”. E. g., prohibitions of discrimination against women, against races, are collective rights – yet are also “merely” procedural guarantees. Dworkin does not make those distinctions. Instead, Dworkin tries to distinguish “principles” from “right” and “policies”.18 He seems to be grappling with the issue whether rights are individual or collective, positive or natural. His distinction could be made defensible by arguing that “rights” are individual, natural, and/or substantive whereas “policies” are collective, positive and procedural. However, he does not seem to consciously make those distinctions and in any events such a typology would be questionable. Political rights such as the right to vote, to free speech, are ‘merely’ procedural yet doubtless would be seen 15 Ronald Dworkin, Taking Rights Seriously, London: Bath (3d edn.1977, 1981), pp. 22–23. 16 Ronald Dworkin (ed.), The Philosophy of Law, Oxford: Oxford University Press (1977), R. Dworkin, “Is law a system of rules?”. 17 Ronald Dworkin, Taking Rights Seriously, London: Bath (3d edn.1977, 1981), p. 82. 18 Id.

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by Dworkin as hierarchically superior to other rights. Likewise, prohibitions against racial discrimination or gender discrimination are collective and also show that the substantive/procedural distinction does not always hold. Again, Dworkin would be likely to argue that laws prohibiting sex discrimination and race discrimination – which are collective claims – are “rights”. Dworkin even admits his distinctions are not final because he recognizes the existence of collective rights (“principles”). In fact, his typology is incomplete and cannot succeed in its own natural law terms because Dworkin, like most of the rest of late modernity, does not see the complementary character of natural law and positive law. Some laws are natural and universal, inevitable. Others are positive, variable, and depend on the society. “Rights” could be adequately distinguished thereby as “natural” not “positive” and then further distinguished on the basis of whether they are individual or collective, whether they are “procedural” “negative” “freedoms from” or “affirmative” “rights to”. Dworkin does not reach these distinctions and his theory as presented is untenable due to lack of adequate basic definition. Dworkin also tries to distinguish justice, fairness, and morality from other goals, which are also good – which leads to further confusion in his theory by introducing more undefined basic terms. What is justice? Dworkin does not seem to define it, at least as far as I have read. Plato and Aristotle already had radically different ideas about what “justice” and the “just” are. Though, you can always add Thomas Moore or Karl Marx to see how deep this human desire to the good is – so deep that the idea of “justice” is quite contested: “justice” is polysemic. Dworkin, so far as I have read him, does not appear to define his basic terms even by reference – he seems to be a Kantean-Lockean liberal minus the social contract. Dworkin also appears oblivious to the fact that moral theory since about 1880 has been hotly contested. If you took a time traveller from 1800 and put them in today’s society of: Legal prostitution here, gay marriage there, abortion just about everywhere, and premarital sex they would be shocked, to say nothing of the complete pornification of the west via internet – and by the way, few people go to church these days. We’re not in Kansas anymore. Dworkin believes in the moral. So do I. However, we might have different ideas about what morality is. He does not seem to have defined morality. So, I think Dworkin is remarkably unsuccessful at proving his positions of a fundamental difference between “rights” and “policies” and that “rights” do or should “trump” policies. However, Dworkin’s ideas, though wrong and basically flawed, had for a time surprising resonance. His ideas got listened to despite what in my opinion are fatal flaws because Dworkin

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basically argued from the presumption that the system was legitimate. Just like the poor desperately need basic rights the rich and powerful likewise need to believe that they deserve luxury amidst famine and war. Who can blame them? There are no evil people. There are destructive and unhealthy actions – and there are also healthy constructive ones. All those “evil” people think they are doing what is right, natural, and good, that they are justified and that they are making the best choices possible, even that they have not any other choice. You would not do any differently if you were in their shoes. Their dysfunctional (self) destructive behaviors are the result of a lack of awareness that better alternatives even exist, the inability to see themselves in those better alternatives, and above all the lack of understanding as to how they could properly obtain the better alternatives: the flawed assumption eventually results in the flawed action. I regard Dworkin’s views on rights as unpersuasive and untenable. His moral theory and his theory of justice seem underdeveloped. His basic terms are not well defined. His theory has problems and is often criticized.19 At least Dworkin was man enough to see it and admit it.20 However, the problems – undeveloped theories of justice and morality, terminological ambiguity, and enthymematic liberal/individualist presumptions, remain and explain the limitations on his theory. Dworkin does not search out the origins and significations of his basic terms in legal history and practice. Thus, he cannot (and does not) adequately define his basic terms. The result is confusion. While distinctions between “principles” “rights” and “policies” could be made tenable by recognizing the complementary character of positive law versus natural justice and then distinguishing between substance and procedure, individual and collective, Dworkin does not make those distinctions. Seeing as I am not a liberal individualist it is not my task to try to remedy his broken work. Dworkin does not prove that his “principles”, whatever they may be, are “objective”. How could he? He never defined “principle” adequately in the first place. So Dworkin also does not prove that “principles” do or should “trump” “policies”. Instead, Dworkin fixates on tautology: “principles” (what are they and how are they selected?) are somehow (how?) outside of politics and (thus?) are superior (how?) to policy (why?). He has not really any good answers to any of those questions nor as to how to distinguish a “policy” from a “principle” or why “principles” should trump 19 See, e. g., Justine Burley (ed.), Dworkin and his Critics, London: Blackwell (2004). 20 “. . . my critics have not understood the points I wish to make. I acknowledge that the responsibility for those misunderstandings is mine.” Ronald Dworkin, Taking Rights Seriously, London: Bath (3d edn. 1977, 1981), p. 291.

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“policies” because he assumes we all share his liberal individualist rights centric worldview. I do not. I’m not an individualist. I am probably authoritarian not liberal, and I am certainly instrumentalist about rights: “rights” are an effective and convenient way to organize and subdue conflict. That’s it. Like the rest of late modernity, Dworkin did not see that positive law and natural justice are complementary not dichotomous. So, while Dworkin does not prove his thesis and at times errs his categories are not incurable even though the presuppositions, which are their foundation are. This becomes clearer when we look Rawls.

II. Rawls Dworkin does not make the social contract central to his vision. He is honest enough to recognize that social contract arguments are not tenable: “It would be very different, of course, if every citizen were a party to an actual, historical agreement to accept and obey the political decision taken in the way his community’s political decisions are in fact taken. Then the historical fact of agreement would provide at least a good prima facie case . . . So some political philosophers have been tempted to say that we have in fact agreed to a social contract of that kind tacitly . . . However, no one can argue that very long with a straight face.”21

Rawls in contrast takes up state of nature22 and social contract presuppositions.23 The trouble is, rights centric individualist social contract liberalism wilfully ignores the realities of social injustice, the fact that there was never a social contract, nor any state of nature, and related problems like how a social contract is formed and why the social contract binds successive generations. This basically dooms liberal individualist theory because when one proceeds from incorrect presumptions it is entirely to be expected that faulty conclusions will follow. I do not regard Dworkin or Rawls as having crafted theoretically tenable versions of natural law thinking and this despite the fact that I regard a natural law theory (= law as natural reasoning) as applicable to describe some law, e. g. jus cogens. Positivism and natural law are complimentary, not dichotomous. Nevertheless, Dworkin and Rawls do not present tenable theories due to failed basic presumptions and/or absent definition of basic terms.

21

Ronald Dworkin, Laws Empire, Cambridge: Belknap 192 (1986). John Rawls, A Theory of Justice, Oxford: OUP (1972) (“veil of ignorance”), p. 136. 23 John Rawls, A Theory of Justice, Oxford: OUP (1972) (“original position”), p. 118. 22

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III. Hohfeld Although social contract/liberal individualist rights discourse is incoherent due to disconnect from reality, tenable rights discourses do exist. Hohfeld argues this: rather than thinking of “rights” as implying corresponding “duties” and “remedies” or even other “rights”, we should recognize that the term “rights” is fatally flawed.24 He proposes in the place of rights a Pierceian semiotic analysis with about eight different forms of legal relation.25 Of course, there are in fact an infinite number of potential forms of claims. The whole point of Pierce’s semiotics is that between any two things there is a third relation, and between the relation and either of the two things there is another intentional entity, and so on ad infinitum.26 So Hohfield, following Pierce, focuses on relations between entities and then relations between relations and so on – technically the derivation of new terms could go on forever. I agree with Hohfeld in one way, but disagree in another. Hohfeld is right to criticize rights: this recursive conceit just showed you why – the term “right” is polysemic. We can rapidly perceive this problem when we ask: what is the difference between a right and a law? We quickly discover there is a lot of overlap. Are “right” and “law” the same thing? At times “right” and “law” do describe the same thing – but not at all times – because “right” and “law” are polysemic terms, with several definitions, some of, which overlap, but not all. The very terms “right” and “law” are ambiguous. Thus, “rights” are bad analytical tools. Hohfeld is right to seek a better, more precise and scientific terminology. I just happen to think the proper way to do that is not by logically deducing and distinguishing in an ever more abstract and disconnected way more and more terms. I think we are better to focus on historical uses (praxis) to see through to something workable in the real world, rather than in abstraction.27 24 Wesley Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16 (1913). 25 Christopher Gray (ed.), “Rights and Liberties” in The Philosophy of Law, An Encyclopedia, New York: Garland (1999), p. 753. Some of the terms Hohfeld uses are defined in the law: e. g., immunities, privileges, liabilities, powers, disabilities, liberties but sometimes with different meaning to his and generally with much less precision. It is wiser to work with the terms law gives us rather than invent ones (Occam). 26 See, Peirce, C.S., 1883. Studies in Logic, by Members of the Johns Hopkins University. Ed. Charles S. Peirce. Boston: Little Brown (1883). 27 Other scholars think Pierce is worth working on. See, e. g., Rex Martin “On Hohfeldian Liberties” in The Reasonable as Rational? On Legal Argumentation and Justiciation – Festschrift for Aulis Aarnio, Berlin: Duncker & Humblot (2000), pp. 87–128. This may be due to not recognizing the possible infinite regress in any

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So: “Rights” are ambiguous, polysemic, and make a bad building block for legal science. Unfortunately, we are stuck with them. Right and law are basically (not universally) synonymous due to their polysemicity. I argue elsewhere, I think correctly, that all laws whether “rights”, “principles”, or “plenary decisions of the central committee” are conditional statements in the form of if condition then consequence.28 Put in terms of the “bad man theory” – which I do not subscribe to, but you might, law is a threat and/or a promise. Wherever you see a law you can transform it into a conditional. So for example “there is a law sanctioning x” can be reformulated as: “If you do x then I can go to court and force you to do not x.”

And this is incidentally how I define our first term – vested rights. A vested right is a legally enforceable claim. Part of the problem with rights’ discourse is that it exemplifies conclusory reasoning, i. e. tautology. “Rights” are the conclusion of power struggles. Wherever you say “I have a right” what you really mean is “If you do not agree with my claim I can get a cop and/or take you to court and they will make you pay, one way, or the other.” That is a materialist understanding of rights. Every “right” is only a “claim” and if you can get a judge and/or a cop to back you up your “claim” just turned into “right”. The idea “right” is an abstract entity – it does not itself have a material existence, it is a mental projection from material reality, an abstraction and formalization of material reality. So, I do not argue that rights be “natural”, “inevitable”, and “good”, “transcendent” and “self evident” “universal” “forms”. They are nominal abstractions. Rights do not really exist. Rights are not real entities. They are objects of intention, ideations. I argue that “rights” do however have a superstructural logical form (a conditional statement: if then) which is in turn a reflection of (= induced from) material existence and then reflected back into material practice (a cop with a gun, a judge with a cop) as deductions (= the inductive-deductive method). It is also important to note that “rights” are not merely “the bad man theory”.29 The “right” is effective in part because it is logically persuasive and thus does not need actual violent Piercean semiotics or because they do not search deeply enough into the law to disambiguate the polysemic term “rights” as I try to do here. 28 Eric Engle, Law: Lex v. Jus, 1 J.Juris 31 (2008), available at: http://www.jur isprudence.com.au/vol1_engle.pdf. 29 While the bad man theory ignores the self-enforcing, self reproductive character of law and is thus inaccurate it can be reread here. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 457 (1897).

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enforcement due to the foucauldian self policing of actors.30 Law/Rights are not merely threats they are also internalized self-concepts, expectations, desires. People want to live in a structured, organized world where they are treated with justice. Some of us even need that (illusory) sense of order and fairness and in fact all the more so that life is chaotic, unpredictable, dangerous and unfair. The love of rights is at times a fear of wrongs. So, the idea of rights is attractive and persuasive. It is the attractive persuasive power, which explains why a badly defined concept is also seductive. Rights look really good when you’re drunk or in love with them.

D. Types of Rights Hohfeld proposes a potentially infinite and in all events complex typology. He is trying to form solid distinctions between “right”, “no right”, “claim” and about another half dozen terms. I think that is needlessly complex. Occam teaches that we should not (as Pierce does) multiply intentional entities beyond what is needed to explain all phenomena completely. Good science is parsimonious because parsimony creates fewer possible errors and results in a clearer system: a simple yet powerful and elegant formalization. Good science also builds on the basis of existing knowledge, when possible. Thus, while I criticize “rights” as: (1) polysemic and ambiguous; (2) often merely a reflection of inane counterfactual social contract mythology; (3) merely the conclusion of power struggles and thus; (4) conclusory with no inherent (“natural”) a priori hierarchical superiority. I nonetheless coerce a workable scientific definition of “rights” by invoking adjectives – especially because the world’s exploited and oppressed need justice like you need water and food. Rights are how we get that. However, the adjectives I use to qualify rights are not my own invention. Rather, I draw on legal history for qualifications of rights because: (1) Science builds on existing knowledge to attain progress. If I can see a bit farther it is only because I am standing on the shoulders of brave intelligent visionaries. (2) Courts are much likelier to take up ideas presented on the basis of prior courts’ decisions rather than the inventions of isolated idiosyncratic scholars, at least in the common law, though that is less true in civilianist law. 30

See, Michel Foucault, The Birth of the Clinic [1963] (NY: Pantheon, 1973).

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(3) Qualifications of “rights” drawn from existing legal terminology can be used to disambiguate the term “rights” adequately to render it scientifically useful. The crux of Hohfeld’s argument is that “rights” do not necessarily imply corresponding remedies, duties, or other rights. However, Hohfeld seems more interested in taking up Piercian semiotics than in studying legal history. A piercing analysis of legal history quickly reveals existing legal terms for disambiguating the polysemic conclusory shibboleth “right” and coercing it into something scientifically useful – an unequivocal element of legal science. A scientific approach to law/right distinguishes first between perfect (vested) rights and imperfect rights, to, which we now turn our attention.

I. Perfect (Vested) Rights Perfect rights are vested (I use those terms synonymously), that is, they give rise to an enforceable legal claim. Where a person has a vested right they can go to a court and enforce their claim. By “an enforceable claim” I mean simply a conditional with an imperative consequence: if defendant does act X, plaintiff can go to court and force defendant to do not X. To say a person has a right is conclusory because rights are the conclusions of power struggles. However, to understand how the power struggle will be decided it is crucial to distinguish, as courts have since centuries, between vested (perfect) and executory (imperfect) rights. Vested rights are legally enforceable claims, which can be successfully asserted before a court and then enforced by a cop. For every vested right there is a corresponding legal remedy. Moreover, for every vested right there is a corresponding legal duty. Finally vested rights may (or may not) imply other accessory rights. Example of Vested Rights: Property Historically, property consisted of the rights of use (usus) including abuse (abusus) and also the rights to the products of the property e. g. fruits, rents (fructus). The right of property ownership is vested by actual possession coupled with good legal title. So if the person had good title and actual possession there would not be much anyone could do about how the owner used, abused, or consumed his property or its products. Of course, this concept of absolute exclusive and well defined rights is completely alien to contemporary legal thought, which sees rights as relativized, divisible, and somewhat amorphous claims. The point is not to say, which way is better or

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more fair. Rather, it is to show the internal coherence of the historical approach and how we can use that coherence to shape equally coherent reform laws. We can, and even should, argue over whether conceptual jurisprudence (Begriffsjurisprudenz)31 or legal process interest balancing (Interessenjurisprudenz)32 is more effective, whether those theories are complementary and if not where they are contradictory. However, to do so we need a common language and one, which will be taken up and used by courts. Perfect rights imply a remedy and corresponding duty. That is what distinguishes them from imperfect rights, which we now turn our attention to.

II. Imperfect Rights The next form of rights I wish to speak of are known as “imperfect rights”. Imperfect rights do not necessarily imply any legally enforceable claim, any corresponding legal duty or any legal remedy. They may imply political remedies or practical remedies or possible ways to be transformed into perfect rights. 1. Rights at Will: Permissions, Privileges and Licenses There are several types of imperfect rights. Permissions, like licenses are revocable at the will of the grantor. Privileges may also be revocable at will: there is a right, but it exists only to the extent of the will of the grantor. These are revocable rights. Example: Ferae Naturae I wish to go hunting, to do so these days I need a license, I have no right to hunt without the permission of the state. The state grants me the license, but can revoke its grant at will since the activity is dangerous and the object of the activity is a res communis (if the state claimed no right to license taking the/unowned thing then it would be res nullius). The point is the right exists, but is defeasible.

31 Rudolf Wiethölter, “Begriffs- oder Interessenjurisprudenz – falsche Fronten im IPR und Wirtschaftsverfassungsrecht. Bemerkungen zur selbstgerechten Kollisionsnorm”, in: Alexander Lüderitz und Jochen Schröder (ed.), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts. Bewahrung oder Wende? Festschrift für Gerhard Kegel, Frankfurt am Main (1977), pp. 213–263. 32 See, e. g., Philipp Heck, Gesetzesauslegung und Interessenjurisprudenz, in: Archiv für die civilistische Praxis (AcP), 112 (1914), p. 1.

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2. Potential Rights: Mere Expectancies In contrast, mere expectancies are not even held at the will of another. They are potential rights. If one executes the act required, the right is actuated and transformed from a mere expectancy (an imperfect executory right) into a vested perfect right (and thus a legally enforceable one). These are potential rights. Example: Ferae Naturae I still want to go hunting, and now I have the license the state obligates of me. I now have the opportunity to get a vested right to wild meat by hunting and killing Bambi (or Thumper, take your pick). Now if I shoot Bambi and you shoot Bambi and each shot was mortal we each have an expectancy but no vested right. Whichever of us reaches Bambi’s corpse first and then takes it (caption) vests the right. This fact pattern, from Pierson v. Post,33 whether and when the expectancy vests, is the same issue as Marbury v. Madison.34 Whether the wild game, like the commission, was a mere expectancy, or a vested right. Of course, these distinctions are conclusory. They are the conclusions of power struggles. However, they are predictable conclusions, which follow certain rules of argumentation, which are predictable because if legal rules were unpredictable then basic business transactions, which benefit the entire society could not occur. Just as they need rights to feel safe (self preservation) they also need rights to prosper (self actualization). Small wonder there is such a to-do about rights. 3. Hortatory Rights: Programmatic Goals Hortatory rights are another form of non-vested right, i. e. an imperfect right. Hortatory rights can and should be distinguished from revocable rights and potential rights. Hortatory rights are desirable programmatic political goals for the society to attain. They do not create any enforceable individual or collective legal claim. They do however give rise to a collective political claim. Most interestingly, hortatory rights can be used as interpretive guides for the determination of substantive rights – that is, as warrants for other arguments.35 So, though rights such as mere expectancies and hor33 34 35

Pierson v. Post, 3 Cai.R. 175, 2 Am. Dec. 264[1] (N.Y. 1805). Marbury v. Madison, 5 U.S. 137. LaGrande, Memorial of the Federal Republic of Germany 3.44 16 Sept. 1999.

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tations are not vested they nonetheless have legal significance. Hohfeld is right, there is more to right than meets the eye. Example: The Right to Food, “Third Generation Rights”36 The right to food is a really good idea.37 No one should starve. People who are starving cannot help you. People who are not starving can help you. People who are starving are desperate and have nothing to lose. People who are not starving are not so desperate as to kill themselves (i. e. you) to feed their family. However, the right to food is a collective programmatic goal, an objective to be attained progressively over time as society grows economically stronger and stronger. It can however serve as a basis for arguing about other rights, as an interpretive guide to the content of other laws. All imperfect rights have this in common: they do not imply any enforceable remedy, any other right, or any other duty. They may however create a political claim. Some imperfect rights can be transformed into perfect rights. Others cannot. Hortatory rights do not give rise to a chance to create a vested right on performance of some given action. Expectancies do. In sum, imperfect rights create no current legally enforceable claim. They may sometimes be able to be transformed into vested (perfect) rights; they may give rise to a political claim; they may even serve as a guide to the interpretations of other laws, which in turn would determine whether other rights are or are not vested. This defeasible character of rights discourse explains in part why theoretical rationality has trouble as a tool for analyzing rights discourse. Aristotelian theoretical logic (unlike his practical logic – phronesis) is a-temporal and non-defeasible. So rights discourse, for Aristotle, would have been lost in the uncertain operational world of rhetoric. Aristotle did not make “rights” central to his vision of justice.38 First he was a materialist (and quite rightly so). Second, his legal theory was nondefeasible because for Aristotle theory is universally true. His legal praxis (rhetoric) in contrast was defeasible, not necessarily but contingently true. For Aristotle, the machinations of rhetoric are tactical and quite possibly lies, the lies of an advocate defending his client. Aristotle’s theory39 (logic) 36 For a synthetic description of the generational theory of human rights see: Eric Engle, Universal Human Rights: A Generational History, 12 Annual Survey of International & Comparative Law 219 (2006), available at: http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1020464. 37 Philip Alston, Katarina Tomas ˇevski (eds.), The Right to food, Martinus Nijhoff Publishers (1984). 38 See, Chapter 2.

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was for judges and legislators. His praxis – rhetoric and practical reasoning (phronesis) was for advocates. These two parts of his organon serve different functions and are epistemologically and ontologically very different. Aristotle did not want, expect, or desire judges to take either advocate “at face value” but did expect judges to recognize advocates for cunning clever rhetoricians and thus view their arguments skeptically and prudentially within the greater framework of a scientific object, which stemmed from the nature of things. This was not the common law adversarial system. There was no expectation of truth emerging from the conflicting lies of the advocates. Truth would be a function of the judge as bearer of truth and wisdom and is not the product of conflicting lies of the advocates.

III. Other Distinctions among Rights There are several other popular and legal distinctions among rights.40 I do not find them analytically useful. However, others may disagree and any typology should try to be complete. Sometimes people argue that fundamental rights must be procedural not substantive because: (1) procedural rights determine the content of other rights. (2) Procedural rights do not inflict any costs (or only minimal costs) on others. (3) Procedural rights are “negative” “freedoms from” state interference. I do not find those arguments so persuasive. That is not the point. The point is, whether there is or is not “a right to education” does not depend on arbitrary processes. It depends on who argues from more warrants more persuasively. I do not find the “substantive” versus “procedural” distinction at all useful in determining whether a right does or does not exist and what its content is or implications are. However, you might disagree – and so might a judge, and in the end it is He who counts. The law certainly does make the distinction between “substance” and “procedure”, rather often in fact. Similarly, the distinction between “affirmative” “rights to” versus “negative” “freedoms from” also strikes me as unpersuasive. However, courts make that distinction fairly regularly in predictable fashions, which advocates as rhetoricians cannot ignore and we as legal scientists must account 39

Aristotle, Politics, Book V. See: Eric Engle, Universal Human Rights: A Generational History, 12 Annual Survey of International & Comparative Law 219 (2006), available at: http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1020464. 40

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for, if possible, as something other than stupid judges not thinking enough about the lies they are told by the advocates. The real point about rights discourse, beyond seeing it as conclusory yet tractable and able to be coerced into workable definitions, which can be successfully presented to courts is this: even if we can expose or impose internal rationality and coherence on the law, that does not change the fact that the system can be both internally coherent and unfair. Guess what? It often is.

E. Inferring Rights We can usefully distinguish “rights” from each other by disambiguating the polysemic term with historically accepted and used qualifying adjectives. This disambiguation was necessary in order to determine whether and how we can infer among rights. We now look at whether and how we reason among rights. Can we infer among norms? If so, how do we properly infer norms? There seem to be at least three forms of useful normative inferencing: (1) inferring a duty from a right (“for every right there is a corresponding duty”)41; (2) inferring a remedy from a right (“for every right there is a remedy”)42; (3) inferring a right from some other right (e. g., “the greater implies the lesser”).43 These three inferences are different from each other in theory, though in practice they seem to always get the same answer: sometimes. Rights do not necessarily imply remedies, duties or some other right, but possibly do. We already saw examples where I have a right but you have no corresponding duty (ferae naturae) or where I have a nominal right but no enforceable claim (hortatory programmatic rights – they are policy goals and may be interpretive guides). When the right is “vested” then it implies duties and remedies and maybe even other rights. When the right is “imperfect” i. e. “executory” then it makes no necessary implications though it may entail 41 See, e. g., Martti Koskenniemi, “The Effect of Rights on Political Culture” in Philip Alston, Mara R. Bustelo, James Heenan, The EU and Human Rights, Oxford: OUP (1999), p. 102. 42 “It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury it’s [sic] proper redress.” William Blackstone, Commentaries on the Laws of England 23, Marbury v. Madison, 5 U.S. (1 Cranch), 137, 162–163 (1803). 43 Of course that is vague and manipulable but with stare decisis can converge to predictability.

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possible implication such as political remedies or the basis for influencing other interpretations. So, can we infer among norms? Paradoxically, Kelsen, though arguing for a variety of conceptual jurisprudence, did not believe we could infer among norms (his view changed from RR1, where he did apply logic to the relations among norms44 but in ATN he rejected logic as governing the relationships among norms45) because he took up the popular view attributed (in my opinion, wrongly) to David Hume about the relationship between facts and statements about facts.46 I reject Kelsen’s self defeating view about norms and argue that in fact we can infer from one norm (rule) to another. How do we infer among norms (rights)? We infer among norms such as rules, rights, principles, policies, standards and goals using logic. We use natural reasoning to render implicit relations explicit to determine the natural, fitting and appropriate relations among rights, duties and remedies. Thus we use well known logical methods namely: (1) Induction (common law) – applying the rule in one case to another case. (2) Deduction (civil law) – inferring from a general rule to determine the outcome in a specific case. 44

“La fondation de la validité d’une norme positive, c’est à dire posée par un acte de volonté et qui prescrit une certaine conduite, a lieu par une procédure syllogistique. Dans ce syllogisme, la majeure est une norme considérée comme objectivement valable, ou plus exactement: l’énonciation, l’assertion d’une telle norme, aux termes de laquelle on doit obéir aux commandements d’une certaine personne, c’est à dire se conduire conformement à la signification subjective de ces actes de commandement; la mineure est l’énoncé du fait que cette personne a proscrit que l’on doit se conduire de telle ou tell fac¸on; et la conclusion: l’assertion de la validité de la norme que l’on doit se conduire de la fac¸on ainsi déterminée . . . La norme que la majeure pose – proposition qui procure le fondement – comme une norme objectivement valable est une norme fondamentale si sa validité objective ne peut plus faire l’objet d’une question. Elle ne peut plus faire l’objet d’une question si elle ne peut plus être fondée par le moyen d’un processus syllogistique. Et elle ne peut plus être fondée de cette fac¸on si l’assertion du fait que cette norme a été posée par l’acte de volonté d’une personne ne peut plus constituer la mineure d’un syllogisme.” Hans Kelsen, Théorie Pure du Droit, p. 268. 45 “Comme on l’a précédemment remarqué, le syllogisme théorique, dont la majeure est un énoncé général et dont la conclusion est un énoncé individuel correspondant à l’énonce général, ne mène pas à un acte de pensée dont cet énoncé individuel est la signification. Le prétendu syllogisme normatif, dont la majeure est une norme générale et dont la conclusion est une norme individuelle correspondant à la norme générale, mène encore moins à un acte de volonté, dont la norme individuelle est la signification.” Hans Kelsen, Théorie Générale des Normes Paris: PUF (1996), p. 317. 46 Hans Kelsen, General Theory of Norms Oxford: Clarendon Press (1991), Ch. 20 “Is and Ought in Hume’s Philosophy”, p. 86.

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(3)

The inductive-deductive method – we use induction to generate new deductive rules and then apply those deductive rules to new cases.

(4)

Analogical arguments – arguing that A is like B because of common characteristics 1, 2, and 3.47 Analogical argument, unlike deduction, does not entail a theoretically necessary conclusion.

(5)

Probabilistic argument, i. e. statistical argument.

(6)

Ampliation – developing new general rule from a set of cases.

(7)

Teleology – arguing from or to the goals of the law.

(8)

Forward chaining of inferences (connecting inferences using the basic logical functors: implication, conjunction, disjunction, strict implication, negation).

(9)

Backward chaining of inferences (results oriented reasoning chained together using the above mentioned functors).

(10) Anything you can convince the judge of. Really. Rights are implied from well-formed arguments, which in turn are based on and invoke warrants. Essentially, the task of legal argumentation is to assemble warrants for an interpretation. Whichever side amasses more and better warrants for their argued interpretation – wins. This persuasive function of rights discourse is crucial to the legitimation of the state. It might seem bizarre to be talking about “rights” at all since they do not have any real existence and are in fact merely the conclusions of power struggles. Rights are legal fictions. So is the state. However, they are fictions backed up with force. Is that persuasive? No. Robbery is also backed up with force. Moreover: robbers think they are acting fairly: “I only steal from the rich”. However, a just state is not a mafia writ large, a band of thieves. What makes the just state somehow different than a robber or a criminal gang? Given that the state and the rights it creates and upholds are legal fictions, why are laws other than arbitrary? Why must/should/does the state use logic to determine its laws? Laws are made according to rules of logic in order to be persuasive so that the system is perceived as just and thus becomes a self-enforcing self-policing and self-reproducing foucauldian panopticon.48 Laws must be made and argued logically to persuade judges and the general public that the outcomes are fair. The state and its laws are 47 See, e. g., Jefferson White, “Analogical Reasoning” in Dennis Patterson, A Companion to Philosophy of Law and Legal Theory, Cambridge: Blackwell (1996), p. 591 et seq. 48 Bentham, Jeremy Panopticon Letters Ed. Bozovic, Miran (London: Verso, 1995), pp. 29–95.

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fictions – fictions backed up with a gun. However, the state is so much more than a fiction backed up with guns. These fictions are also backed up with expectations, desires, social sanctions, even hopes and dreams. The result? Voluntary compliance with rules and their enforcement by the ruled on the not so voluntarily compliant. Though the state and its laws are fictions we ignore them at our own peril and they have predictable operationality – unlike a band of criminals. The legal system uses logic as tool for self-policing so that the system is persuasive, self-enforcing, attractive and thus reproductive of hierarchy. The rules are not arbitrary, capricious and/ or universally or even generally abusive – class bias (race is a proxy for class in the U.S.) is implemented systematically, operationally, with plenty of places for opt-in and opt-out and a remarkable flexibility. Otherwise no one would obey or ensure others obey. Finally, not only does the legal system use logic as a tool for self-justification, it uses the rights formed out of that logic as the means to the end of the good life. The system is not only persuasive it is also attractive, self enforcing and self-reproducing and sustainable. Criminality is not sustainable because it disincentivizes production and raises transaction costs. People have rights because they need them (or at least think they do) and because they are, at least sometimes, a useful way to organize the social body. Rights are the conclusions of power struggles and thus are conclusory. Rights as commands have no truth-value and thus cannot imply anything. However, the idea of rights can be persuasive, and in fact decisive, when linked to logical arguments based on policy and purpose (teleology), based on similar structure and facts (analogy49) based on practical observations (inductions) or theoretical a priori rules (deductions). “Rights” are like a magnet, a tool for amassing and structuring arguments and their warrants and also for structuring expectations and desires. Properly structured, rights discourse can be used by progressives to undermine racism, sexism, homophobia, patriarchy, greed, and war. “Rights” are a weapon. Whether they are used by or against the exploited and oppressed depends on how effectively progressives marshal them.

F. Conclusion Rights are the conclusion of power struggles. Thus, all statements of rights are conclusory. Statements about the conclusions of power struggles are, well, conclusory, and if that seems tautological it is because it is. When rights are expressed as commands they are then only imperatives, 49 See, e. g., Lloyd Weinreb, The Use of Analogy in Legal Argument, Cambridge: CUP (2005).

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have no truth-value, and imply nothing because it is impossible to infer truth or falsehood exclusively from statements, which are neither true nor false. Right as conditionals in contrast can have a truth-value and can imply other duties, remedies and other rights depending on the circumstances and arguments. Rights discourse in the popular sense can, and at times should, be avoided because, at least in the developed world, it invokes numerous falsehoods such as the failed social contract myth and because the terms of rights discourse, unless cured as suggested here or by some practical refinement of Hohfeld (too many terms/potentially infinite terms), are analytically ambiguous. True, one can disambiguate the terms. However, for legal science – la doctrine, Rechtslehre, scholarship – one is much better merely using an unambiguous logical syntax – logical functors – and expressing legal relations as logical operations, e. g. conditional statements as parts of syllogisms. However, since rights discourse is so dear to Anglo-American liberal individualism it is inescapable in popular discourse. Thus this chapter coerces the pre-scientific (neo-)feudal term “rights” into a scientifically useful tool so that others who insist on using or discussing “rights” can do so while avoiding some of the traps of legal theory such as Hume’s “law”: ((p = > q) * (q = > r)) = > (p = > r) is so much clearer. Right? In the next chapter, we apply the typology of rights described in this chapter to the question of whether there is an international human right to basic alimentation (the right to food) and if so, what is the nature and content of that right.

Chapter 14

The Right to Food A. On Radical Legal Critique Ronald Dworkin in Taking Rights Seriously (and also in Law’s Empire)1 attempts to present a theory, which privileges “rights” (which he equates, wrongly, to “principles”) and elevates them to a hierarchical superiority over “policies”. Unfortunately, Dworkin’s definitions are absent and fundamentally flawed by an equally absent epistemological foundation.2 Consequently, his work has failed to have much influence on court decisions and has been received with justified criticism by legal theorists.3 Dworkin is a liberal individualist. I am not. So I do not regard Dworkin’s failure to present a coherent discourse on rights as necessarily or entirely bad. However, his flawed theory is widely read and can be coerced into something useful to serve the interests of the exploited and oppressed (who overwhelmingly live in the third world). So, this chapter presents a restructuring of Dworkin’s flawed terminology. Dworkin should have defined his terms more carefully. This chapter tries to do that. This chapter is a piece of radical/critical scholarship. The first wave of critical legal studies (CLS, ca. 1979–1989) ran from the U.S. defeat in Vietnam to its victory over the U.S.S.R. CLS basically collapsed soon thereafter.4 Critical forces however gather again as the U.S. Empire wages failing wars for resources5 which bankrupt the economy and maim youth.6 If CLS is to launch a second strike it must recognize that legal superstructure 1

Ronald Dworkin, Law’s Empire, Harvard University Press (1986). See, e. g., Vincent Luizzi, Taking Dworkin Seriously, 19 Western Ontario Law Review 21 (1981). 3 Justine Burley (ed.), Dworkin and His Critics. Oxford: Blackwell Publishing, 2004. 4 See, generally, Andrew Altman, Critical Legal Studies: A Liberal Critique, Princeton: PUP (1993). 5 On the relation between war and critical theory see Eric Engle, The Fake Revolution: Understanding Legal Realism, 47 Washburn Law Journal 653 (2008). 6 On self destructive resource wars see: Eric Engle, I Am My Own Worst Enemy: Problems and Possibilities of European Foreign Policy Vis-a-Vis the United States, 737 (2006). 2

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is built on top of forces of material production (infrastructure, a.k.a. base). Critical theorists must also take into account historical material facts as well as the critiques made against CLS 1.0. How ought “CLS 2.0 proceed? Two points give a good start to understanding radical legal critique. First, radical legal critique points out when jurists think they are doing justice but are not in fact doing justice, and why, exactly. Phenomenologically,7 the critique is this: “You may think what you are doing is justice, but it is not – and here’s why.” Critical theory can and should point out why much of what passes as just, fair, and righteous is wrong, unfair and even (very rarely) malicious. Injustice is rarely, maybe even never “evil”, though it is just about always stupid – and human. Most injustices are the result of error, not choice: people believe they have no other choice, cannot see the other choice exists, or understand how to undertake it often because they had never even conceived of the possibility of an alternative. For example, just look at zork. You might wonder what zork tastes like. Let me tell you, zork is fantastic. You want it. However, seeing as you have never even seen zork you do not have a clue how badly you want it let alone how to get it. That is what the unknown “good life” is for the poor. For just one example: a world where daddy does not have to beat up the kids so they become tough and able to survive a world that is even meaner than daddy.8 A similar analysis can play out with mommy the prostitute, or shoplifter, drug-dealer or just about any other sad existence you maybe cannot imagine well due to inexperience. Just as the poor cannot imagine or undertake healthy modes of life, which the rich take for granted the rich likely cannot imagine the unhealthy modes of life, which the poor also take for granted. That first radical critique already goes a fair distance to giving jurists a sense of how to direct their passion for justice. The second critique is darker. It points out: not only is the system unfair, it is at times intentionally unfair. Namely, decisions, which present themselves as objective, neutral, detached deliberations are at times nothing other than power politics in disguise. The phenomenological criticism is an accusation against the bench and bar, to wit: “You pretend what you are doing is objective, neutral, disinterested adjudication – but it is not, and here’s why.” 7

Phenomenological approaches ask the scholar to put themselves in the shoes of the actors then and there at that place being analyzed. It is subjectivist and thus unscientific since it creates and is shaped on nothing objectively reliable however phenomenology may have a heuristic use and I try to illustrate that here. See, “A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation”, in Duncan Kennedy, Legal Reasoning, Collected Essays (The Davies Book Publishers, Aurora Co, 2008). 8 My father did not beat me.

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Radical critique must present both these prongs in detail to be effective and must also pose workable concrete alternatives (e. g., the earned income tax credit, a negative income tax, is a good thing). A radical critique of the prison plantation system would run thusly: “The system, your system, sends the beaten victims of daddy to jail, because all those victims ever knew was violence. Now they know they are men because The Man of All Men has put them behind bars, conclusively proving that Daddy the Man has them under His thumb and that’s the way life is. They could have led better lives. They could have made your life better too, and here is how.” Injustice is often the reiteration of psychologically dysfunctional roles and scripts. Critical theory must patiently explain why the solutions it proposes are better than the system as it is. Radical critique must not merely cut down the existing system (which is not always or even necessarily inevitably unfair). Radical critique must moreover present better ways: the “and here is how”. Radical critique must point to solutions that are practical and would work in the real world not in some ivory tower but in the slums of the third world and the ghettos and prisons of the empire. This radical critique is in the interests of the system because the alternative is dysfunctional violence. So I guess it is not so radical. However, then again, who really thinks the answer is Molotov cocktails? That’s viscerally satisfying but childish. If you want peace, work for justice.

B. Classical Law: More Geometrico Classically, law was seen as an axiomatic system,9 like Euclid’s Elements. I think law can and should be still constructed and presented as such because that is what the system can stomach, what it will listen to and what it will act on. The system cannot and will not listen “when the shotgun sings its song”.10 Would You listen to violence? The system also will not, and probably even should not, listen to pomobabble,11 hyperlogic, or other post-structuralist dreamery. However, it can and will listen to the soothing words of classical hierarchical dominance of knowledge over power; of knowledge as power:12 lex est summa ratio. 9 Christopher B. Gray, The Philosophy of Law: An Encyclopedia, Taylor & Francis (1999), p. 120. 10 The Who, “We Don’t Get Fooled Again”. 11 Dennis W Arrow, Pomobabble: Postmodern newspeak and constitutional ‘meaning’ for the uninitiated, 96 Michigan Law Review 461 (1997). 12 Foucault, Michel, The History of Sexuality, vol. 1, Harmondsworth, Penguin, 1981 (see pp. 92–102).

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So let us think about classical legal reasoning, i. e. naturalistic and conceptual jurisprudence. To the Euclidean mode of reasoning in more geometrico, each law would be a demonstrable theorem, formed by elements, demonstrable as a proof, modelled after geometry. Thus, to prove that tort exists one must prove the existence of each of its elements. In this sense proving the conjunction of (1) Duty and (2) Breach and (3) Cause in fact and (4) Proximate Cause and (5) Damages implies (6) Therefore a Tort. would be analogous to this sort of styled proof: (1) Triangle ABC side AB congruent to triangle DEF side DE. (2) Angle AB congruent to angle DE. (3) Angle BC congruent to angle EF. (4) Two triangles with two congruent angles and one congruent side are congruent. (5) Therefore triangle ABC is congruent to triangle DEF. An axiomatic system is founded on axioms. An axiom is a fundamental element, which itself is not provable. It is an inevitable, i. e. necessary, presumption. Classically, axioms and postulates were distinguished in that postulates were considered those fundamental values over, which reasonable people could differ, whereas no reasonable person would dispute a given axiom; axioms, unlike postulates, were considered self evident.13 Science has since made great strides. At the same time however there is also continuity. Kurt Gödel demonstrated (proved) simplicissmus that in any formal system there would be true theorems, which would however be indemonstrable within the terms of that formal system.14 That is, any formal axiomatic system is incomplete. I believe Gödel’s theorem obtains for two separate reasons. First, there are statements, which are neither true nor false. Some statements have no truth value. Yet, any axiomatic system (and law 13 See generally, e. g., Paul Edwards (Ed.): “Glossary of Logical Terms” in The Encyclopedia of Philosophy, Vol. 5, Collier Macmillan (1972). 14 Kurt Gödel, Über formal unentscheidbare Sätze der Principia Mathematica und verwandter Systeme I. in: Monatshefte für Mathematik und Physik. Akademische Verlagsgesellschaft, Leipzig 38 (1931), pp. 173–198.

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can be represented as a formal axiomatic system) must somehow account for statements, which are unknown or unknowable. The existence of such statements implies the incomplete nature of the formal system. If there are statements, which have no truth value, then by definition there are statements, which are indemonstrable. This may seem problematic until we understand that it is also a demonstration of the inevitability of axioms. We cannot avoid grounding our system on some fundamentally shared yet indemonstrable propositions. A similar and related argument is that axiomatic presumptions are inevitable due to solipsism. That is, we all must presume the existence of other persons. I cannot prove that anything outside of my own existence is not a hallucination.15 I cannot prove you really exist (nor can you prove I really exist). The solipsistic position is logically consistent. It is also practically senseless. That fact explains why Aristotle’s distinction between theoretical logic and practical reasoning is a sensible one. Solipsism can only be accounted for by presuming it away. So, for these two reasons, I believe the only closure of any axiomatic system will be in its axioms. Quantum mechanics, epistemology, and mathematics are intertwined. They are all aspects and descriptions of the same basic reality. Many controversies of ancient theoretical physics have been resolved by practical experimental physics. Interestingly, physics too seems to support the idea that there is some inherent uncertainty in the universe. We know for example that the particle-wave duality of light is a false dichotomy. Light behaves both as a particle and as a wave.16 Likewise, we know that the matter-energy duality is also a false dichotomy: matter and energy are one and the same and are mutually convertible.17 Atoms had been postulated to be indivisible (a-tom: uncut) elements. Physics has since shown that atoms appear to be ever divisible into smaller and smaller elements and moreover as atoms are matter-energy the former duality of “discontinuous atomic particles” versus “continuous energy waves” has been resolved toward the idea of matter-energy as a continuum. Moreover, at the quantum level, it is known that the observer inevitably effects the item observed.18 Likewise, we can either measure the velocity or the direction of sub-atomic particles, not both.19 I do not argue for 15

René DesCartes, Meditations (1641). See, e. g., Walter Greiner Quantum Mechanics: An Introduction. Springer. (2001). 17 Herman T. Briscoe, The Structure and Properties of Matter, Read Books (2007), p. 383. 18 Simon Gröblacher, Tomasz Paterek, Rainer Kaltenbaek1, S caronaslav Brukner, Marek Z dotukowski, Markus Aspelmeyer & Anton Zeilinger An Experimental Test of Non-Local Realism, Nature 446, 871–875 (19 April 2007). 19 Heisenberg, W. (1927), Über den anschaulichen Inhalt der quantentheoretischen Kinematik und Mechanik, Zeitschrift für Physik 43: 172–198, doi:10.1007/ 16

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an observer created universe. Rather, I point out the simple fact that each person is both the perceiver and that, which is perceived. Therefore, self reference is inevitable in any observation. Likewise, reference outside the self is inevitable in any observation. Finally, because each observer is only partially aware of the observed object (whether it is interiorized or not) the fact that the observer is also the observed compels us to a dialectical understanding of the universe: we compare and contrast our individual partial views to obtain a best-possible (imperfect) integrated view, which approximates the presumed-to-exist objective truth. The atom, if an indivisible element is, like the axiom unknowable. Axioms are indemonstrable first propositions just as atoms, if indivisible (a-tom) are inscrutable. However, unlike the axiom, which has been shown by Gödel as a theoretically inevitably fact-of-life, the atom, as a fundamentally indivisible basic material component in the universe, has been more or less proven inadequate. First, matter and energy are convertible. Second, matter-energy appears to be (therefore) inevitably (infinitely) divisible. What does this imply for the law? For one thing it implies the inevitability of axioms in any legal system – the consequence of force, if necessary, to compel compliance with the law – are inevitable. The final force of the law is force. That is a tautology but is not question-begging. It is simply a (inevitable) foundational assumption, that legal systems use violence (which is why we would all like to move from law/politics/the state to civil society). Yet, if Gödel’s theorem implies that axiomatization is a legitimate presupposition, the empirical observations of physics imply that our legal elements are to a certain extent inevitably uncertain. Thus, for every term there is a core of axiomatic theoretical legal certainty (an “easy case”) in, which the term must obtain, a penumbra20 of probabilistic practical certainty (phronesis) (a “hard case”21) in, which the term probably obtains and likewise an area of uncertainty where the term probably does not obtain and an area of certainty where the term certainly does not obtain. Hard cases arise not only due to conflicting rules, principles, policies, goals (all of, which can be subsumed under the general vague term “norm” i. e. “standards”). However, hard cases also arise due to competing and uncertain definitions. DefiniBF01397280. English translation: J. A. Wheeler and H. Zurek, Quantum Theory and Measurement Princeton Univ. Press, 1983, pp. 62–84. 20 Hart, H. L. A. (1958). “Positivism and the Separation of Law and Morals”. Harvard Law Review 71 (4): 593–629. The Hart-Fuller debate miscast the complimentary relationship of positive and natural law. 21 On “Hard Cases” see, Ronald Dworkin A Matter of Principle’ Harvard Univ. Press (1985).

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tional uncertainty results from the fact that, in addition to axioms with, which no one can theoretically disagree, which entail necessary implications, there are also postulates, about, which people can reasonably disagree, but, which contingently entail implications, if the postulate in reality obtains. This is why there is a distinction between axiom and postulate. The axiom speaks to theoretical logic, the postulate to practical reasoning.

C. Taking Empire Seriously: Radicalized Rights as a Key to Third World Well Being The foundational presuppositions explicated above are the necessary precondition to an effective exposition of rights discourse and the imposition of a better sense of structure and terminological certainty. I wish to impose order on chaotic and contradictory rights discourse for a very practical reason: I argue for the existence of a fundamental human right to adequate nutrition. The best proof of that right is the practical fact that it is in the interest of the well fed to feed the starving: well fed happy people are not so desperate as to become suicide bombers unlike those so desperate as to have literally nothing to lose but their painful lives. To me that argument alone carries the issue. However, others may like further theoretical warrants than the practical argument. So, this foray into rights discourse is purely and simply motivated by an instrumental perspective on rights and aims to provide the warrants needed for finding the right to food. I am not trying to reform individualist liberalism. I consider individualist liberalism to be fundamentally inadequate to describe reality: people are a rational, talking, social, animal.22 Nor am I engaging in rights discourse out of some naive or foolish belief that rights have any real transcendental existence outside of the practical facts of life. However, the reconstruction of the idea of “rights” which I present could be used by liberal individualists: a correct idea is correct even when used in conjunction with incorrect ideas or by people with generally incorrect ideas. So, what emerges from this frank effort to “steal” food from the rich to feed the poor is a defensible schema, which can apply to liberal individualist perspectives on rights. However, liberals miss the point: I present a structure of rights not to undergird the free market but simply to form a legal system, which generates outcomes so the majority of the planet will not be starving or malnourished (inadequate vitamins, protein and calories). If structuring rights to end starvation and make the world less violent has the incidental effect of arming clueless liberal individualists with better intellectual weapons that’s life. In22

Aristotle, Politics, Book I Ch. 1.

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dividualism fails for epistemological reasons independent of the to-present incoherence of rights discourse. Rights can be categorized according to a series of binary distinctions. Of course, sometimes neither category of either duality applies and, exceptionally, in other cases both categories apply. Any right may be placed somewhere on the following chart, which presents opposed dualities. Usually the right will be as “either/or”. Less often the descriptor of the right in question will not apply (this right is “neither/nor”). Sometimes the right will be “both/and” (e. g. both an individual and a collective right). Fundamental/ Natural/Human/Universal rights can be characterised as: – Individual or collective (group). – Substantive or procedural. – Affirmative “rights” to (claims) versus negative “freedoms” from. – Alienable or inalienable. – Natural or positive. – Vested or executory. – Hortatory. – Privileges. – Basic. – Fundamental/Natural/Human/Universal (these four tend to coincide but not always). Some tendencies can be identified as well. Usually “justiciable” “liberal” “rights” are constructed as: inalienable, individual, natural, procedural, freedoms from. These are generally contrasted against “non-justiciable” as: collective, substantive, rights to, generally presented as mere hortatory goals having at most interpretive value.23 In fact however, those associations are only contingent. Nothing in the nature of things compels them: they are emanations of the general principle that law is logic in action. I. e., lex est recta ratio.24 How might we address what appears to be a “tangled hierarchy”? 25 Can we untangle it? How far? 23 On human rights’ typology see: Eric Engle, Universal Human Rights: A Generational History, 12 Ann. Surv. Int’l & Comp. L. 219–268 Golden Gate University School of Law (2006). 24 Cicero De Legibus, 1,15–30. 25 Douglas R. Hofstadter: Gödel, Escher, Bach: An Eternal Golden Braid. Basic Books, 1979.

C. Taking Empire Seriously

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First, we should recognize that universal natural rights co-exist with positive laws. “Positive law” versus “natural right” is a false dichotomy.26 Positive laws and natural rights are complementary, not dichotomous. “Natural” rights are natural in the sense that they are universal; they are recognized in all times and places and are invariable. Of course, truly universal norms (ius cogens) are most exceptional: they are very few in number but of fundamental importance. A similar tenable distinction can be made between “inalienable” rights, those rights, which are not able to be bought, sold, or traded because they are considered essential to human dignity or something in their nature prevents their alienation. Alienable rights in contrast can be bought, sold or traded away. Inalienable rights are hierarchically superior to alienable rights because inalienable rights are essential, i. e. inherent, to the person and are the basis on, which other alienable rights are founded. Inalienable rights thus correspond to positive rights and upheld as natural laws and alienable rights are in contrast, alienated according to positive law. They are axiomatically presumed. Usually but not always, natural rights will be individual rights because they protect people against the state and thus, generally, against tyrannical majorities. Usually but not always natural rights will be negative “freedoms from” state domination rather than affirmative “rights to” resources. Usually natural rights will be procedural as opposed to substantive.

I. A Typology of Rights Thus the rights schema can be summarized roughly and with only dialectical exactitude as Natural Inalienable

Positive Alienable

freedoms from state action procedural individual

rights to resources (enforceable claims) substantive individual or collective

I list these tenets in descending order of their logically compelled entailment. The most tenable distinctions are in bold, the least tenable distinctions are in italic with the plain text falling in the middle. Incidentally, procedural rules may also be considered as “meta rules” – rules for deciding how other rules are formed and applied.27 26

Aristotle, Politics, Book V. Hobbes, Leviathan.

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As that hierarchization indicates, this typology is only approximate. It is a reflection of practical observation. The entailed descriptors follow from practical reality. They are not necessarily logically compelled implications. Examples of how the schema I present is only an approximate description of observed reality rather than theoretically compelled from a series of logical implications follow. E. g., some procedural rules are positive, not natural. No one would suggest that the Federal Rules of Civil Procedure are natural (i. e. universal, and/or invariable) rights, even though they are purely procedural. Likewise, the rights of women, of racial minorities to be protected against invidious unjust discrimination (by the state, at least, but also sometimes against other private persons) are a collective right – they arise out of a collective experience of oppression and exploitation and a corrective of society to that exploitation and oppression. Fairly generally however, positive rights are claims to alienable resources “rights to” and natural rights are freedoms from state action. I think the best way to elicit and resolve this “tangled hierarchy” is by presenting a grid of specific rights and specific categories. This follows. Freedom of Contract

Free speech press and assembly

Vth*

Ed.*

Vote

Group

?

Individual

x

x

Substantive

?

x

Procedural

?

Freedom from

x

Right to

x

x

x

Inalienable

x

x

x

x

x

x

x x

x x x

x x x

x

Positive

x

Hortatory

x

Interpretive

x

x

Alienable Natural

Libel

x

27 Hart apparently calls them “secondary rules”. Since I think the Hart-Fuller debate was irrelevant (positivism and natural law are complementary, not conflicting) I haven’t read Hart so closely as most. HLA Hart, The Concept of Law, OUP (1997).

C. Taking Empire Seriously Freedom of Contract

Free of speech press and assembly

Vested

Vth*

437 Ed.*

Vote

Libel

x

Executory Contingent Privilege Basic

x x

Fundamental

x

Natural

x

x

Human

x

Universal

x

Meta Rules

x

Vth* – The various rights of the accused to know their accuser, to confront witnesses etc. found in the U.S. Fifth Amendment for example, and recognized in, e. g. French law as droits de la défense Ed.* – The right to education.

The above listed rights are all well recognized legal constructions. The categories too are all recognized in law. These are not self invented categories for imaginary rights. The categories are derived from legal practice and the nature of things. However, as can be seen, the categories themselves are to some extent rough, at times ambiguous. Some rights will fall into both sides of the dualism. Others will fall into neither pole of a given dualism. Nonetheless, this schema allows the elaboration of some pragmatic sense of what courts do, and even enables one to make arguments as to what the court in this case should do. However, caveat lector: although these descriptors of rights (the typology) would be generally admitted by courts and commentators alike, a court could deviate from the general typology described. In contrast, the existence of the particular rights described (e. g. the right to free speech) would be admitted by all. However, trying to fit the existing well recognized rights to the grid reveals that these categories, though better than nothing, are not always adequate and do not cover the phenomenon exactly. Greater clarity is obtained through this grid, which shows that some of the categories are apt to describe certain rights.

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II. Positive Policies, Natural Rights So, the distinctions among categories of rights are only partially adequate. Would approaching the problem from the other direction help? Dworkin tries, in my opinion ineffectively, to distinguish principles from policies. Rather than focus on “rights” – a very broad term – we should focus on “principles” to try to get at what I think Dworkin was reaching after. My critique is that Dworkin does not adequately define principles. Does he mean “natural” “individual” “procedural” rights, i. e. freedoms from government interference? Or does he mean something else? Your guess is as good as mine, maybe better. We can however fairly consider “principles” as indicating or subsumed into the category of general principles of law.28 The general principles of law include things like the rights of the accused (right to self-defence), the principle of equality, of freedom to contract, etc.29 That is, the sorts of fundamental rights, which the liberal individualist Dworkin would like to see protected. Supposing for the instant that we can in fact render the ambiguous common law “principles” unambiguous by looping it back into the civil law general principles of law can we consider the general principles of law as somehow superior to “policies”? Dworkin does not, at least as far as I have read, define “policies” or how they are different from “principles”. What I think he was trying to get at was a distinction – which I do not think at all useful – to assigning rights – between individual freedoms from state oppression as opposed to collective rights to resources whether of the state or of other private persons. I do not think that distinction is so tenable, especially when isolated and unelucidated i. e. as merely implicit. I think a better way is to go after just what is meant by “policy” as distinct from “principle”. I do not think distinguishing policy from principle by focusing on the idea that policies are affirmative claims to material resources and/or made by groups or even necessarily by focusing on the positive-natural law distinction is particularly helpful. I think the better route is to figure out just what policies are and then to see whether or not they are necessarily radically different from “principles”. I argue that they are not, since some “policies” are “natural” and some “principles” are “positive”. 28

See, e. g., Giorgio Del Vecchio (Felix Forte translator), General Principles of Law Wm. S. Hein Publishing, 1986. General principles of law are a source of law in the international system. See, e. g., Restatement, Foreign Relations Law of The United States, Third. 29 See, e. g., Eric Engle, General Principles of European Environmental Law, Penn State Environmental Law Review, Volume 17, Number 2, Winter 2009, 215.

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The relevant terms for what Duncan Kennedy innovatively and probably correctly calls “purposive reasoning”30 are – Goals, – Policies, – Objectives, – and Teleology. Teleology is the natural tendency toward, which a thing develops due to its own inner essence. It is the only “natural” term in the above listing the end to, which the body would eventually attain even without guidance or direction by some external force. The other terms are “positive”. Though, one can easily characterize (cast) many “principles” as positive (or, instead, as natural). So I do not think the “positive”, “natural” distinction is necessarily dispositive because the term “natural” has both a thetic and normative sense (nature as what is, versus natural as what ought to be) – and due to disputes over just what is nature/natural (e. g. the nature/nurture debate). “Goal” and “objective” in contrast are synonymous terms for positive aims the law seeks. Policies are means to those ends (goals, objectives). As positive laws they are hierarchically inferior to inalienable natural (universal/invariable) rights. I equate Dworkin’s “Principles” to the general principles of law, which are persuasive evidence of the law in the national civilianist legal orders and a source of law in international law. I cast fundamental rights as natural and inalienable. Fundamental rights are not necessarily individual and can well be collective. However, fundamental rights are usually considered individual rights because most often rights are held and enforced by individuals even when presented in group terms (e. g. the rights of woman are the rights of women) and because fundamental rights generally protect people against the state – and a democratic state is usually majoritarian.31 Thus we see some sense of hierarchy: inalienable natural rights are hierarchically superior to alienable positive laws. Goals of the law, like teleology, are superior to the policies, which serve them. There is a hierarchy of rights not because rights are unitary and issued by a single law giver nor due to any mythical Grundnorm (basic unitary norm); lacuna, gaps, and conflicts of laws are the legal reality. However, 30

David Kennedy, “The Rule of Law, Political Choices and Development Common Sense” in David Trubek, Alvaro Santos (eds.), The New Law and Economic Development, A Critical Appraisal, Cambridge Univ. Press, p. 5. (2006). 31 See, e. g., Madison, Federalist 10 (1787).

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despite conflicting law and spaces that are not (yet) juridified there is a hierarchy of rights because of the nature of things. Some goals are more important than other goals; any goal is determinative of the extent of the policy, which serves it; some things are means to an end while other things are an end in and of themselves. And some things are inherent, inalienable and essential to human dignity whereas other things are alienable.

III. The Right to Food (Basic Alimentary Rights) How does the right to food, one of the alimentary rights,32 stack up in this typology? The right to food is: – an individual right; – an affirmative right to nutrients; – a substantive right; – at least an interpretive guide; – at least a programmatic goal; – a positive right; – an inalienable right; – at least an executory right – the right of the individual to do those things needful for their own sustenance; – a universal fundamental human right. Why is not the right to food a positive right? It is. However, this positive right is attained both by the individual shifting for their own resources and by the efforts of the state and by the efforts of private charity. Further, the right to food is owed to people both by their state and by the international community and by private actors as part of the disaggregation of sovereignty characteristic of the post-Westphalian era. The right to food is flanked by and an accessory to the right to water, the right to development, the right to education. The right to food is more basic than any other right but the right to clean air and water. It is a necessary means, without, which the end of the good life cannot be obtained but is obviously not alone sufficient to the good life. So the hierarchization of rights also goes in the sense of “most basic” i. e. that, which is a necessary means (the right to food) to the “highest” i. e. that, which is the full flowering of all the other rights – the right to self development. That is, we see in the law a reflection of 32 The rights to water, clothing, shelter are the others. These are distinguished from the psychological rights to one’s own language, culture, education, worship.

D. Conclusion

441

Mazlow’s hierarchy of needs. The basic alimentary rights (air, water, food, clothing, shelter – survival rights) are hierarchized by their necessity and are more important than the psychological rights (the rights to education, to one’s own culture and language, the right to worship) yet are also necessary means to the end of the psychological rights, which are the fulfilment of the human spirit. It is healthy and good that legal science and social science, here psychology, cooperatively drive toward the common good for all persons. Any other arrangement would be sub-optimal.

D. Conclusion The idea of rights is so ingrained in liberal individual legal consciousness that first world progressives really have no choice but to try to work with the concept to achieve substantive goals for the world’s oppressed and exploited. In this chapter I explained how the broken Dworkinian distinction of “rights” versus “principles” could be cured of incoherence and even used productively to help end world hunger and thereby reduce the likelihood of terrorism and augment the probability of global peace. Dworkin believes, wrongly, that the theoretical dilemma facing legal theory is a choice of either positivism or natural law.33 He was wrong on that point and so his entire structure of “rights” versus “principles” cannot be coherently articulated since the distinction he was trying to make cannot make sense without relying on the distinction “positive legal policies” versus “natural principles of justice”. Certainly, the structure of rights I propose is itself imperfect because in practice the field of rights is confused. Moreover, I am no individualist. Confusions in rights’ discourse arise fundamentally from the epistemological distinction between materialism versus philosophical idealism (i. e. Platonic formalism34 – also known as eidetic realism). Rights discourse is also confused by the false dichotomy of positivism versus natural right consequent to the ill conceived Hart-Fuller debate. Positivism and natural law are complementary, as Aristotle and Hobbes both make plain. Finally, rights discourse is also confused by arguments that normative inferencing be impossible, which result from misreadings of Hume.35 I propose instead a coherent materialist typology of rights 33 See generally Ronald Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967), esp. p. 22. 34 See, e. g., Plato Republic. 35 For an exposition of what Hume in fact said and the misreadings of Hume see, Eric Engle, Knight’s Gambit to Fool’s Mate: Beyond Legal Realism, 41 Val. U. L. Rev. 1633, 1639–1643 (2007). “Hume’s Trap” is a much better description than “law”.

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discourse. That typology could be used by liberal individualists, even dualist Platonic formalists though I really think that would distort the legal issues even if it helped the exploited and oppressed. The flaws in dualism and formalism (eidetic realism) still hold even with this disambiguation. I disambiguate rights discourse not to achieve liberal individualist goals, but rather to enable the proper attribution of legal rights to the world’s exploited majority – who live almost exclusively in the third world. Fiat justitia.

Global Conclusions This work presented a grand view of legal theory. It centred on a fundamental error of late modern legal thought: the false dichotomy of “either positive law or natural law but not both” – an extension of the law of identity. Some laws are universal and natural, e. g. prohibitions against incest, against killing; other laws are positive, arbitrary and vary from place to place. Likewise, the work resolved one of the great puzzles facing late modern legal thought: whether and how normative inferencing is possible in the face of relativist critiques of the ideas of morality and truth. It concluded that moral theories of law are positive when posited in materialist terms, presuming as postulates an anthrocentric worldview, which aims to secure Aristotle’s goal of the good life for all. Normative inferencing is possible as a variety of practical reasoning (phronesis). These comprehensions were built on an ontological monist holism, an epistemological materialism, and an axiological cognitivism, a unique combination of concepts, which are often, wrongly, cast as incompatible. Along the way to resolving these grand themes of late modern legal theory a variety of other ideas were raised – flanking theories of law such as law and economics were discussed in reasonable detail and the origins and destiny of critical legal studies was discussed in great detail. With regard to critical theory this work is really an extension of Duncan Kennedy’s ideas about critical legal theory and contemporary legal thought, though hopefully the influence of Catharine Mackinnon can also be seen, albeit only indirectly. This work did not directly address her Feminist Theory of Law and the State, which I in fact regard as the most creative and influential political theory since Hobbe’s Leviathan, at least in English because her work did not address the problems of relativism, indeterminacy, or legal logic: she faced down more practical concerns in the struggle to end oppression and exploitation. This omission hopefully will be forgiven insofar as the ideas herein empower critical jurists with arguments, which they can use to win battles before courts and legislatures, as shown in the final chapter where the conceptual apparatus developed herein was used to briefly present a defence for alimentary rights (the right to food).

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Index Africa 8 African 41 African (possibly also Black) 41 Analysis 38, 129–130, 141, 156, 183, 226, 228–229, 245, 250, 252–253, 256–258, 262, 371–373, 406, 451, 454–455, 461, 464, 467 Analytical Method 33, 35, 38, 257, 285, 311 Aquinas 63, 88, 90, 113, 119, 190, 195, 354, 444 Aristotle 6, 10, 33, 36–37, 39, 41, 43–44, 46–65, 73, 76, 88, 90–97, 99, 107, 110, 119, 126, 130–131, 133– 136, 140–141, 149–151, 162, 166, 189, 194, 204, 212, 230–231, 268, 274, 298, 303–305, 309–311, 313– 314, 319, 321–323, 332, 337, 341– 342, 346, 354, 373–374, 377, 393, 403, 411, 420–421, 433, 435, 441 Arte 90 Athena 53 Atomism 6, 28–39, 44, 92, 126, 128, 146–148, 151, 227, 231, 237, 249, 259, 341, 344, 365, 369, 385 Axiology 6, 8, 27–28, 30–31, 39–40, 45, 68, 115, 129, 140, 177, 183–185, 188, 195, 201, 204, 213, 220, 224, 264, 402 Balance of Power 35–36 Balancing 169, 171–172, 174, 177– 178, 215–217, 219–222, 224–226, 229, 256–257, 262, 317, 346, 360, 366–367, 371, 374–375, 410 Balancing Tests 169, 172, 215, 222, 256, 262, 444, 448 Base 349

Basic Right 412 Begriffsjurisprudenz 86, 88, 345, 354, 407, 418 Black 53, 62, 160, 165, 169, 202, 205, 222, 262, 319 Bretton Woods 41–42, 235, 447 Buchanan 134, 148, 228, 245, 247– 253, 255–256, 260, 447, 453 Budget 182, 225–226, 250, 253 Canada 182 Capital 148, 182, 193, 232, 241–242, 245–246, 255, 261, 292, 305, 408 Capitalism 25, 67–68, 88, 123, 139– 140, 144, 146–148, 152, 154, 158– 159, 165–166, 169–171, 193, 203, 213, 217, 230, 234, 241, 246, 291– 294, 297, 300, 305, 340, 344, 350, 359, 408, 449, 453, 458 Catholicism 68 Child 189, 351 Children 26, 52, 61–62, 109, 215, 306, 344 Christianity 107, 117, 212, 365 Cicero 34, 47–48, 63, 88, 90, 98–99, 110, 113, 116, 190, 276, 317–318, 354, 374, 434, 447 Classical Legal Theory 86, 88, 90, 306, 316, 346, 354–358, 362–365, 370, 379 Classical Legal Thought 86, 88, 90, 127–128, 301, 305–307, 311, 316, 339, 344, 346–347, 349–351, 354– 368, 370, 374–375, 378–380, 407, 456 Coase 171, 258, 365, 373 Coke 88, 90, 99, 303–304, 317–318, 341, 355, 448

470 Commission 158, 419 Conceptual Jurisprudence 38, 40, 86, 88, 345, 354, 407, 410, 418, 423, 430 Congress 158, 165, 182 Constitution 50, 92, 97, 106, 109, 119, 121, 157, 162, 197, 202, 211, 247, 272, 287, 362, 367, 451, 454 Contemporary Legal Thought 108, 157, 366–367, 407–408, 417, 443 Continuity 112, 122, 153, 362, 430 Convention (see also Treaty) 41, 93, 143, 145, 152, 156, 166, 172, 189, 386 Copyright 27, 192, 263 Corporate 27, 41, 158, 214, 219, 375, 389 Corporate Governance 41 Corporations 41, 121, 300, 343 Corporatism 198, 364 Correct 43 Crime 141, 143, 145, 190, 238, 272, 291, 366, 424 Critical Legal Studies 8–9, 45, 64, 155, 161, 165, 172, 179–180, 224, 287, 290–293, 346, 358–359, 363, 365–367, 369–370, 408, 427–428, 443–444, 456, 461 De Facto 222, 258, 278 De Jure 258, 278 Death of Reason 338, 347 Deduction 423 DesCartes 26, 92, 212, 431 Descriptive 69, 91, 95, 99, 113, 125, 134, 149, 162, 185, 187, 246, 260, 263, 285, 322, 340, 352, 383, 391 Dialectic 5, 36, 47, 50, 92, 115, 151, 213, 290–291, 298, 301–309, 321– 322, 336, 340, 344, 349, 356, 376, 409, 432, 435, 463, 467 Doctrine 41, 67, 103, 131, 136, 160, 169, 173, 177, 207, 214, 316–317, 347, 350, 361, 367–368, 379, 382, 389, 426

Index Dualism 6, 28–31, 38–40, 47, 64, 66, 87, 102, 104, 106–107, 115–116, 189, 191, 195, 201, 206, 208, 211– 212, 223–224, 343, 400, 437, 442 Duties 93, 111, 117–118, 124, 133, 135, 141, 414, 417, 422–423, 426 Dworkin 7, 10, 44, 110, 120, 124– 130, 145, 153, 263–264, 409–413, 427, 432, 438–439, 441, 447, 449, 457 Economic 8, 25, 27, 34–35, 39–42, 52, 56, 58, 61, 67, 75, 90, 102, 123, 127, 129–130, 133, 135–136, 141, 143–144, 146, 151, 154–156, 158– 159, 162, 165–167, 170, 173, 177– 181, 184, 188, 196, 199, 204, 213– 215, 219–222, 225–226, 228–243, 245–248, 251–254, 256–260, 262– 263, 287, 292–293, 300, 303–305, 310, 316, 336, 340–341, 344, 355– 357, 359, 363–364, 367–369, 372– 373, 376, 379, 409, 439, 460 Economy 9, 33, 42–43, 51, 129, 133, 139, 141, 144, 153, 156, 165, 167, 214, 228–237, 241, 243, 247–248, 253, 258, 260, 292–293, 300, 341, 348, 360, 363, 367, 374, 383, 385, 427 Eidos 32, 37, 39, 67, 77, 107, 125, 142, 163, 189, 211, 224 Einstein 34, 69, 226, 301 Empiricism 35, 44, 146, 151, 174, 178, 217, 220, 301, 389, 391 Engels 36, 193, 195, 202, 219 Environment 42, 383, 447 Epistemology 5–7, 9, 27–32, 39–40, 44, 65, 67–69, 85, 115, 129, 169, 173, 176–178, 183–185, 188–189, 192, 194–195, 200, 203–204, 213, 216, 218, 220, 222–224, 237, 239, 241, 243, 245, 264, 274, 342, 383, 392, 401–402, 405, 431, 459 Equality 57, 64, 66, 93–94, 110, 120, 130, 184, 247, 438 Erga Omnes 32

Index

471

Ethics 33, 37, 46, 48, 50–51, 54–60, 92, 94, 102, 106, 121, 135, 194, 198, 204, 210, 212, 311, 337, 342–343, 374–375, 406 EU 217, 422 Expropriation 44, 71, 124, 126–127, 143, 146, 165, 201, 220, 409–410, 412, 427, 433

335, 340, 347, 359, 368, 401, 419, 454, 468 Goal 313, 439 Gödel 76–77, 87, 114–115, 199–200, 294, 324, 342–343, 345, 382, 384– 387, 394, 401–402, 430, 432, 434, 452, 454 Grotius 110, 163, 292

Formal 7, 48–49, 72, 76, 90, 103, 114–115, 125, 131, 149, 161, 173– 174, 176, 179, 196, 200, 205, 207, 213, 216–218, 220, 222, 239, 242, 245, 272, 319–321, 324–325, 328, 330, 332, 339, 341–343, 351, 360, 364, 376–377, 382, 385–387, 391– 393, 396, 402, 405, 430 Formal System 76, 90, 200, 324, 328, 342–343, 377, 386–387, 391–392, 430 Formalism 28–30, 67, 86, 88, 107, 114, 116, 156–157, 159–160, 162– 166, 172–174, 177–179, 189–190, 211, 213–215, 217, 220–221, 224, 262, 293, 339, 355, 359, 362–363, 366, 370, 374, 392, 441 France 63, 123, 167, 186, 321 Freie Rechtslehre 287 French 78–79, 86, 122, 152, 190, 244, 334, 360, 370, 400–401, 437 Friedman 139, 144–146, 148, 183, 231–236, 238–239, 252–253, 256, 259, 263, 292, 304, 365, 451, 464 Functionalism 40–43, 161, 170, 342 Fundamental Rights 118, 123, 125, 128, 370, 380, 421, 438–439

Hamilton 93, 123, 452 Hayek 139, 147–148, 231–233, 237– 247, 255, 260–261, 300, 365, 455 Heuristic 71, 80, 82, 114, 130–131, 140–142, 241, 312, 321, 323, 342, 403, 428 History 6, 8–9, 65, 74, 138, 140–141, 144–145, 147, 151–152, 157–158, 162, 164, 180, 189, 193, 198, 244, 287, 290, 294, 296–297, 311–312, 316, 339–340, 342, 345–346, 348– 349, 351–352, 356–359, 376, 412, 416–417 Hobbes 7, 33, 38, 43–44, 88, 91, 95– 96, 98–99, 107, 110, 113, 120–123, 126, 134, 140, 146, 148–149, 153, 166, 186, 228, 236, 288, 311, 314, 337–338, 341, 346, 354, 435, 441, 454 Hohfeld 414, 416–417, 420, 426, 454 Holism 5–6, 11, 28–32, 37–40, 43, 65, 126, 130, 227, 249, 258, 344, 365, 405, 443 Hortatory 419–420, 422, 434, 436 Human Rights 28, 32, 41–42, 102, 109, 112, 117–120, 153, 164, 188, 193, 213, 262, 277, 367, 380, 420– 422, 434, 444, 447, 450, 455–456, 461, 465 Humanism 163, 293 Humanitarian Intervention 28, 175 Hume 48, 91, 99–108, 114, 117, 186– 188, 191–192, 195, 204–212, 223– 224, 246, 268, 274–276, 281, 294– 295, 311, 314, 318–322, 330, 333– 334, 337, 339, 341, 343, 346, 376, 394, 423, 426, 441, 447, 454, 458

G.A.T.T. 42 General Principles 119, 128, 130, 160, 170, 266–267, 270, 273, 277, 312, 361, 370, 383, 438–439 General Theory 34, 232, 266, 268, 275–276, 278–279, 282, 284, 299, 301, 423, 449, 455–456 Germany 86, 97, 109, 145, 148, 165– 166, 168, 222, 241, 246, 305, 316,

472 Hypotheses 32, 37, 40, 42, 117, 133, 191, 299, 301, 320, 392, 401 I.M.F. 41–42, 167, 447 Imperialism 162, 205, 291, 295, 408 India 58 Individuals 26, 34–35, 39, 41, 43–44, 51, 54–58, 96, 117, 123–125, 131, 133–134, 139–142, 147, 151, 199, 227, 233, 238, 242, 248–249, 253, 256, 265, 279, 308, 343, 439 Induction 128, 202, 318, 423, 461 Inequality 41, 48, 52, 56–58, 60, 135, 137, 146, 203–204, 220, 247, 372, 379 Inference 7, 87, 100–101, 103–106, 111, 187, 191, 206, 208–209, 211, 265, 271, 273, 280, 283, 315, 331, 334, 392, 422–423, 426 Insurgents 222 Integration 36–37, 41, 296, 364 Intellectual Property 217 Interessenjurisprudenz 287, 345, 355, 418 Interest Analysis 418, 453, 466 International Law 25, 32, 34, 41–42, 45, 55–56, 97, 110–111, 122, 193, 285, 297, 313, 365, 439, 455, 461 International Monetary Fund 41–42, 167, 445, 447 International Organisations 41 International relations theory 5, 39 Intervention 41, 138, 231, 236–237, 247–248, 252, 254, 351, 373 Invisible Hand 35–36, 133 Is-Ought 93, 100–101, 103, 191–192, 205–208, 210–212, 223, 275, 279, 315, 321–322, 331–332, 343, 423, 446–447, 450, 454, 458, 466 Ius Commune 313 Jefferson 123, 340, 408, 424, 466 Jus Cogens 32, 97, 137, 413

Index Just 26–27, 34, 38, 40, 47–48, 50, 54–56, 58–60, 62–63, 71, 84, 87, 89–90, 92–94, 107–108, 113, 116, 129, 132, 135–137, 140, 142, 155, 158, 165–166, 174–175, 177, 180, 183, 186, 190, 193, 195–196, 211– 212, 216–217, 219, 222–223, 228, 230, 232–233, 256, 259–261, 271, 278, 280, 283, 288–289, 292, 298, 303, 307–308, 310, 317–318, 321, 325–327, 333, 337, 340, 342, 348, 350–351, 353, 363–365, 367–368, 370–371, 374, 376–377, 384, 386– 390, 406, 408–409, 411–412, 414– 415, 419, 424, 428, 432, 438–439 Justice 6–7, 9, 42, 44, 47–50, 54–58, 60, 64–65, 84, 88, 90–95, 99, 103, 108–109, 112–115, 120, 124, 127, 129–133, 135–137, 139, 143, 145– 147, 149, 156, 158, 162–166, 169– 170, 173, 177, 185–186, 189, 192, 204–205, 207, 214–215, 217, 219, 221, 224–225, 228, 230, 247–248, 252, 260, 287–288, 296–298, 300, 308, 316, 320, 337, 343, 364, 367– 368, 373–374, 381, 406–407, 409– 413, 416, 420, 428–429, 441, 446– 449, 453–455, 459, 461–462, 465 Kant 105, 209 Kelsen 9, 81, 83, 102, 104, 108, 124, 171, 204, 206, 208, 226, 237–240, 246, 264–286, 299, 301, 314–315, 341, 346, 365, 370, 386, 391, 406, 423, 428, 455 Kennedy 7, 10, 86–90, 111, 127–128, 171–172, 296, 298–301, 305–307, 310–317, 320–321, 323, 331, 335– 336, 338–381, 383, 407–408, 428, 439, 443, 452, 455 Kennedy, David 111, 171, 296, 299– 300, 311, 313, 317, 320–321, 323, 331, 335–336, 338–339, 341–343, 345, 369, 374–376, 439 Keynes 226, 232, 234, 299, 301, 451, 456

Index Law (see also Legal) 41–42, 45, 455, 461 Law and Economics 9, 129, 156, 170, 219, 227, 256–262, 370, 454 Law, Legal 5–11, 25–27, 31–32, 34, 38–42, 45, 47–49, 51–52, 55–56, 59–61, 63–69, 71–73, 75–77, 79, 81–99, 104, 106–121, 123–131, 135– 137, 139, 141, 144–147, 153, 155– 186, 189–191, 193–195, 200–201, 204–205, 208–210, 212–231, 236– 237, 239, 247–248, 250–251, 253– 254, 256–272, 274, 276–281, 283– 308, 310–324, 330–331, 333–351, 353–388, 390–393, 399–404, 406– 430, 432–441, 443 Laws 8–10, 25–26, 32, 34, 38–40, 42, 45, 47, 49, 69, 72, 76–77, 79, 81–84, 86, 89, 91, 95–96, 109–111, 113, 115, 120, 125–126, 129–131, 135, 141, 146, 155–166, 168–173, 177– 183, 185–186, 189, 191, 193–194, 200, 204–205, 212, 214–217, 219– 221, 223–224, 226, 228–231, 251, 256, 258–259, 262–263, 267, 270– 272, 277, 279, 281, 283, 285, 287– 290, 292–302, 305–308, 310–317, 320–323, 331, 335–336, 338–349, 351, 353–360, 363–372, 374–376, 379–384, 386–388, 390, 393, 400– 401, 403, 406, 408, 410–411, 414– 416, 420–421, 424–425, 427–429, 432, 434, 436, 438–439, 441, 443– 467 Legal (see also Law) 40, 45, 454, 461 Legal Process Interest Balancing 170– 172, 418 Lenin 38, 292 Liberal 7–8, 33–34, 40–44, 67–68, 93, 109–110, 113, 120–121, 123–124, 127, 140, 165, 172, 185, 205, 225, 228, 231, 293, 297, 307, 312, 314– 315, 338, 346, 349–350, 366–368, 371, 378, 411–414, 426–427, 433– 434, 438, 441, 451, 460, 462 Liberalism 8, 26, 33–34, 41–45, 109, 111, 119, 125, 152, 183, 185, 205,

473

217, 315, 338, 343, 346, 349–350, 363, 367–368, 370, 378, 413, 427, 433, 444, 451, 455–456, 460, 462, 464–465 Libertarian 137, 139–140, 144, 147– 148, 203, 238, 246, 255, 367 Locke 7, 41, 43–44, 88, 121–123, 131, 134, 140, 143, 149, 153, 233, 236, 238, 445, 457 Logic 5–7, 10, 29–30, 44, 46–49, 53, 55, 64, 67, 69, 71–73, 75–77, 79, 82, 84–85, 87, 98, 139, 159–160, 162, 174, 176, 179, 190, 199, 213–218, 220–221, 224, 242, 244, 254, 263, 265–266, 268–269, 272, 274–277, 283, 298, 300, 309, 316–318, 320, 323–327, 330–333, 339, 342, 346, 369, 376, 382–385, 388, 391–394, 399, 403–404, 408, 414, 420, 423– 424, 431, 433–434, 443, 452, 460– 462, 464–466 Madison 123, 165, 193, 419, 422, 439, 451, 458, 468 Manichean 67, 294 Mao 322 Marbury 419, 422, 468 Market 36, 42, 44, 133, 140, 145, 155, 157–158, 166, 170, 173, 177– 178, 199, 203–204, 206, 214, 219, 221, 225–233, 235, 239–241, 243, 245–249, 251–254, 256–262, 292, 300, 341, 356–357, 360, 372–373, 382–383, 385–386, 406, 433, 459 Marx 35–36, 81, 138, 151, 185, 193– 195, 198, 202, 224, 233, 235, 237, 245, 292, 295, 303, 305, 309, 348, 374, 411 Marxism 9, 69, 89, 138, 151, 159, 168, 224, 288, 290–291, 294, 347, 350, 353, 367–368, 377 Marxist 10, 36, 160, 171, 176, 290– 294, 304, 308, 312, 316, 343, 347, 349–350, 363, 365, 368, 374, 377 Marx/Marxism 35–36, 81, 138, 151, 185, 193–195, 198, 202, 224, 230,

474 233, 235, 237, 245, 292, 303, 305, 309, 348, 374, 411, 448, 458, 467 Materialism 5–6, 10–11, 28–31, 33, 35–40, 43, 46, 65, 85–86, 102, 115– 117, 138, 151–152, 184–185, 189, 191, 212–213, 221, 237, 244, 290– 291, 306–307, 322, 334, 360, 377, 379, 405, 441, 443 Mathematics 6, 46, 325, 382, 386, 391–392, 403, 431 MERCOSUR 41 Methodology 9, 26, 33–38, 40, 44, 50, 64, 70, 76, 78–79, 86–87, 90, 128, 130, 134, 137–138, 145, 148, 151, 156, 160, 163, 165, 170, 173– 174, 176, 178–179, 184, 186, 191, 202, 205, 213–214, 216–217, 220, 222–225, 229–231, 237, 239–241, 257–258, 271, 277, 284–285, 289, 293, 298–299, 301, 306, 308–309, 311–312, 316, 322, 324, 331, 351, 361, 364–365, 367, 375, 380, 388, 405, 407, 415, 424, 459 Mises 42, 44, 148, 171, 237–240, 244–246, 259, 449, 459 Modernity 6, 69, 88, 352, 377, 383, 387, 394 Money 44, 233–235, 241, 246, 299, 301, 304 Monism 5, 28–30, 39, 47, 65, 116, 184–185, 212–213, 280, 344, 401 Montesquieu 123, 126 Moral 5–9, 11, 26–28, 30–31, 43–44, 57, 64–66, 71, 73–75, 82, 85, 87, 90–91, 97, 100–103, 105–107, 111, 117, 126, 132, 134, 138, 140–141, 149, 157, 160, 165–166, 168, 170, 176–177, 181, 183–184, 186, 188, 190–191, 194–196, 198–199, 201, 203–213, 216–220, 223–225, 230, 258, 262, 264, 270–272, 274, 276– 277, 282, 284, 295, 311, 314, 334, 339, 343, 371, 377, 379–380, 382– 383, 385, 406, 411–412, 443, 464 Morality 30–31, 43, 64–66, 71, 73– 74, 100, 102, 149, 186, 188, 205–

Index 206, 208, 211–212, 219–220, 223, 315, 385, 445, 447, 464 NAFTA 41 Natural Law 5, 7, 9–10, 28, 39, 58, 90–92, 95–99, 107, 109–118, 120, 124–126, 135–137, 157, 162–163, 166, 169, 185–186, 192, 194, 213, 223–224, 271, 281, 287–288, 296, 299, 311, 316, 318, 337, 340, 346– 347, 354, 358–360, 363, 365, 367, 373, 411, 413, 432, 434–438, 441, 443, 448–449, 453, 463 Nature 7, 27–28, 30–31, 33, 35, 39, 43–44, 47–48, 51–55, 61–63, 70, 72, 78, 82, 91–92, 94–100, 102, 104, 106, 109, 111–115, 117, 120–123, 130–131, 134, 136, 139–143, 146, 148–150, 159, 163, 166, 168, 184– 185, 187, 190–191, 202, 206, 208, 211, 226, 230, 235, 238, 244, 255, 258, 271, 288–289, 295, 309–314, 318, 321, 323, 335, 338, 346, 354, 357, 374, 382–383, 387, 400, 406, 413, 421, 431, 434–435, 437, 439– 440 Neo-Liberal 33, 39–40, 43–44 Neo-Liberalism 40, 43, 45, 460 New Deal 156–158, 165–166, 171, 287, 451, 466–467 New World Order 42 Newton 34, 36 Nietzsche 68–71, 73–75, 114, 150, 186, 188, 192–199, 202, 224, 274, 294, 459 Noesis 35–36, 115, 142, 343 Non-state actors 28, 45 Norm 9, 217, 264–265, 267–275, 277–282, 284–286, 293, 317, 347, 364, 371, 423, 432, 439 Normative 99, 186, 194, 265, 274, 288, 330, 333, 443, 450, 459 Normativity 106, 211, 217, 315, 383 Norms 87, 97, 100, 103–104, 111, 160–161, 165, 172–173, 177, 185, 187, 207, 209, 215, 265–268, 270–

Index 280, 282–286, 297, 300, 317, 331, 334–335, 341, 347, 360, 364, 371, 406, 422–423, 435 Nozick 7, 44, 110, 120, 124, 139– 144, 148, 153, 238, 460 Nuclear 40, 334 Objectivity 44, 72, 101, 111, 173, 177–178, 188, 203, 205, 215, 222, 224, 351, 353, 365 Ontology 6, 27–28, 30–31, 40, 91–92, 129, 133, 164, 184–185, 192, 195, 203, 213, 223, 231, 379, 402 Paradox 76–79, 81, 86, 318, 342, 348, 400, 402, 404, 455, 462, 465 Parliament 98 Peace 42, 44, 67, 96, 109, 134, 146, 151, 192, 228, 257, 290, 429 Penal 183, 291 Plato 31, 35, 38–39, 46, 49, 68, 70, 73, 77, 107, 112, 117, 119–120, 142, 189–191, 195, 197–198, 201, 211, 223, 245, 341, 411, 441, 453, 461 Policies 10, 41, 126–127, 130, 148, 160, 172, 184, 225–226, 236, 250, 255, 287, 367, 371, 409–412, 423, 427, 432, 438–439, 441 Policy 42, 158, 182, 205, 233, 315, 370–371, 380, 427, 449, 457, 459, 462, 464, 466 Polis 37, 50–51, 53–55, 57, 61 Popper 128, 201–202, 239, 302, 318, 401, 461 Positive 5, 10–11, 35, 42, 55, 60, 84, 92–98, 107, 110, 114, 116, 118, 124, 127, 132, 137, 163, 166, 171, 188, 204, 214, 223, 230, 239, 267–268, 271, 281, 288–289, 292–293, 296, 305, 311, 337–338, 343, 347, 355, 359–360, 362, 373, 375, 410–412, 423, 432, 434–436, 438–441, 443 Positivism 5, 7, 9–10, 64, 90–91, 95– 99, 107, 109–111, 113–115, 124– 126, 129, 135, 137, 157, 162–164,

475

166, 168, 195, 205, 288, 294, 316, 337, 340, 345–347, 355, 358–360, 363–365, 413, 432, 436, 441 Positivist 9–10, 94, 98, 112, 114, 125, 186, 288, 296, 337, 359, 364, 406 Posner 129–130, 133, 141, 144, 170, 226, 228–231, 248, 254, 258, 262– 263, 300, 381, 383, 390, 465 Post-Modernism 39, 45, 64, 88, 159, 164, 186, 191–192, 196, 199, 218, 223–224, 257, 288, 293, 350–352, 368, 377 Practice 27, 50, 55, 63, 82, 98, 118, 143, 160, 164, 172, 179–180, 184, 214, 224, 237, 244–245, 297, 309, 318–319, 341, 378–379, 381, 400– 401, 408, 412, 415, 422, 437, 441 Prescriptive 9, 91, 99, 101, 113, 125, 186, 188, 225, 260, 383, 404 Principle 89, 109, 125–127, 129, 159, 178, 214, 227, 256, 267, 287, 289, 409, 432, 446, 449, 453–454 Principles 26, 30, 32, 38, 42–43, 72– 73, 92, 118–119, 126–130, 132–133, 142, 160–161, 173–175, 182, 216, 228, 231, 249, 263, 266, 268, 271, 276–277, 281, 295, 299, 304, 306, 312, 325, 341, 347, 352, 356, 360– 361, 364, 375, 377, 383, 407, 409– 412, 415, 423, 427, 432, 438–439, 441 Private 56, 87, 127, 135, 137–138, 144–145, 147–148, 170, 238, 243, 247, 251, 254, 272, 293, 297, 306– 307, 312–313, 317, 355, 357, 359– 362, 364, 366, 368, 371–373, 380, 407, 436, 438, 440 Procedural 174, 216, 302, 320, 410– 411, 421, 434–436, 438 Property 93, 119, 128, 135, 137–138, 140, 142–144, 147, 170, 173, 238, 248, 250, 256, 281, 300, 343, 347, 349, 358–359, 362, 369, 374–375, 417 Proportionality 123, 374

476 Public 139, 238, 313, 373,

Index 45, 55–56, 87, 126–127, 134, 145–148, 160, 165, 190, 214, 240, 247–256, 297, 299, 307, 339, 348, 357, 360–361, 366, 407, 424

Quine 77–79, 115, 145, 199–200, 217, 294, 323, 335, 384, 388–389, 391, 400, 402, 457, 465–466 Race 25, 46, 60, 64, 168, 172, 174, 205, 214, 222, 289, 350, 367–368, 411, 425 Racial 25, 56, 62, 158, 161, 183, 411, 436 Ratio 5, 53, 56, 82, 84, 87, 116, 163, 185, 190, 194, 198, 246, 268, 276, 279, 302, 304, 309, 315–318, 339, 341, 343, 347–348, 356, 358–360, 363–365, 367, 370–371, 374, 376, 422, 429, 434 Rawls 7, 44, 110, 120, 124–125, 130–136, 140, 149, 153, 406, 413, 462 Raz 82–83, 278–279, 462 Realism 5–6, 8–9, 28–29, 31–35, 37– 40, 42, 66–67, 72, 86, 111–112, 115, 120, 125, 134, 138, 142, 147, 155– 157, 159–166, 169–170, 172, 174– 177, 179–180, 213–221, 223–224, 239, 257–258, 287–292, 311–312, 340–341, 345, 350–351, 358–359, 362–363, 368, 383, 427, 431, 441 Realpolitik 288 Regulations 5, 93, 161 Relativism 6–9, 28, 30–31, 39, 42, 44, 64–66, 68–69, 71, 73–74, 84–86, 102, 111, 115, 117, 126, 141, 157, 165, 168, 176, 181, 183–186, 188, 190–192, 194–196, 198–205, 213– 214, 218, 220, 224–225, 258, 262, 264, 274, 276, 278, 284, 297, 369, 377, 385, 387, 443, 445, 459 Revolution 75, 89, 113–114, 117, 123, 155–159, 162, 165, 174, 179, 181, 217, 294, 308, 356, 383, 427

Ricardo 42–43, 227–228, 231, 236, 256, 258, 462 Right 7, 25–26, 33, 43–44, 46–47, 49, 53, 84, 91, 95, 98, 109, 112–113, 115–117, 119–120, 122–123, 125– 128, 136–139, 142, 144–145, 147, 153–154, 167, 175, 181, 188, 190, 198, 203, 222, 247, 264–265, 270, 281, 296, 304, 309, 315, 317–318, 322, 335, 338, 345, 347, 349–350, 354–355, 357, 359–360, 362–365, 368–369, 374–375, 379, 383, 395, 406, 408, 410, 412, 414–422, 426, 433–438, 440–441, 443 Right to Food 420, 440 Rights 7, 10, 25, 28, 32, 41–44, 93, 95, 110–114, 117–120, 122–127, 136, 138–140, 142, 144–145, 147– 148, 152–153, 156–157, 162, 167, 169, 171, 178, 181, 183–184, 188, 193, 198, 222, 248, 256, 258, 260, 277, 296, 317, 320, 338, 343, 350, 354, 357–360, 362, 364, 367–368, 371, 375, 379, 408–427, 433–441, 443–444, 455 Rothbard 44, 148, 237–240, 244–245, 462 Rousseau 7, 43–44, 119–121, 123, 132, 134, 149, 151–152, 462 Rule of Law 65, 81, 110, 113–114, 117, 119, 121, 153, 165, 174, 179, 183, 220, 267, 289, 291, 318, 392, 408, 439 Rules 36, 67, 71–72, 97, 101, 103, 106, 113, 125–126, 128, 134, 160– 161, 167, 169, 172–173, 177, 190, 207, 210, 214–215, 229, 240, 247, 270, 277–278, 281, 283, 285–286, 289, 292, 297, 311–313, 316, 335– 336, 339, 343, 347–349, 351, 355– 356, 358–360, 363–364, 371–373, 383–384, 386, 400–402, 409–410, 419, 423–425, 432, 435–437, 441 Russia 138–139, 145, 335

Index Science 6, 9–10, 27–28, 31, 34, 36, 38, 44, 46, 48, 50, 60–61, 63–64, 69–71, 83–84, 86–91, 96, 98, 107– 108, 131, 133, 137, 149, 163, 174, 184, 189, 191, 194–196, 199, 202– 205, 212, 215, 231, 239, 241, 244– 245, 266, 269, 276, 283–284, 293, 296–302, 305, 308, 310–313, 315, 318, 320–321, 334, 336–338, 341– 342, 344, 351, 355–356, 358, 364, 376–378, 381, 383, 389, 391–393, 408, 415–417, 426, 430, 441, 445, 449, 457, 461, 463, 465–466 Scientificity 298, 301 Slaughter 34 Slavery 6, 46, 52, 61–62, 156, 199, 205, 262, 378 Smith 35, 42–43, 61, 133, 148, 190, 227–228, 231, 233, 236, 244, 256, 258, 273, 292, 340, 357, 390, 445, 464 Social 42, 48, 86, 111, 120–124, 129, 131–132, 144, 149–152, 158, 171, 205, 214, 315, 363–365, 377, 445, 447–449, 454, 459–460, 462, 464– 466 Social Contract 7, 36, 44, 109–111, 113–114, 118, 120–124, 126, 129– 136, 139–142, 145, 148–155, 166, 236, 248, 411, 413–414, 416, 426 Societas Europae 260 Source 31–32, 67, 78, 88, 92, 117– 120, 138, 200–201, 205, 223, 250, 252, 264–265, 270, 274, 277–278, 283, 286, 301–302, 328, 344, 348, 385, 393, 401, 438–439 South Africa 202 Sovereignty 28, 32, 41–42, 44, 81, 153, 186, 277, 321, 364, 440, 455 Stalin 36, 349 Standard 104, 209, 292, 453 State 7–8, 10, 26–28, 32–34, 40–41, 43–44, 47, 49, 51, 53–54, 56, 58–59, 64, 74, 81–84, 93, 95–96, 98–99, 102, 109–111, 118, 120–125, 127– 128, 130–134, 136–151, 154–157,

477

159, 161–162, 165, 170, 178–179, 181, 183, 192, 206, 218, 225–226, 228, 231, 233, 235–239, 241, 243, 246–247, 251–254, 258, 263–264, 272, 280, 286–288, 290–291, 299– 301, 305–308, 310, 312–314, 316, 319–320, 322, 349, 360–362, 364, 371, 373, 388, 401, 404, 407, 413, 418–419, 421, 424, 432, 435–436, 438–440, 443, 460, 468 State action 435–436 Strauss 90, 198, 203, 307, 341, 349– 351, 353, 378, 457 Structuralism (Post) 162, 189, 461, 464 Subjectivism 39, 176, 204, 216, 239– 240, 245, 297, 387 Subjectivity 44, 65, 69, 71, 73, 87, 89, 173, 203, 244, 255, 264, 284, 385 Substantive 60, 64, 128, 157, 171, 173–174, 177, 184, 194, 216–217, 219, 221, 271, 296, 302, 316–317, 341, 347, 359, 361, 370, 407, 410, 419, 421, 434–435, 440–441 Supremacy 138, 147, 174 Synthesis 39, 129, 136, 312 Synthetic Method 39, 312 Taxation 42–43, 158, 228, 231, 233, 247, 250, 300, 380 Technology 193, 377 Tekhne 50, 91–92 Territory 41 Terrorism 40, 138, 182–183 Teubner 79–80, 86, 169, 342, 349, 383, 386, 401, 465 The Good 11, 39, 43, 54, 58, 60, 65, 67–68, 85, 106, 113, 129–130, 141, 182, 204, 211, 227, 230–231, 286, 300, 313–314, 350, 368, 411, 425, 440, 443 The Good Life 11, 43, 58, 129–130, 141, 204, 231, 300, 313–314, 425, 440, 443

478 Theory 5–10, 25–28, 30, 32–35, 37– 47, 49, 56, 61, 65, 68–69, 73, 82–83, 85, 87–88, 90, 92, 95–97, 101, 109– 116, 118, 120–126, 128–136, 138– 144, 146–149, 151–157, 161–164, 167–169, 171–172, 174, 183–186, 189–190, 193, 195, 201, 204–205, 212–216, 220, 223–233, 236–237, 239–242, 245–246, 248–249, 251– 252, 254–258, 260–264, 266, 268, 270–272, 275–280, 282–286, 288– 294, 296, 298–299, 301, 304–306, 309–310, 313–314, 319, 322–323, 338, 340–341, 345–351, 353, 357– 370, 373–374, 377–384, 386–391, 393, 395, 401, 403, 406, 408–409, 411–413, 415, 420, 422–424, 426– 429, 432, 441, 443, 445, 454, 464 Third World 166, 292, 300, 365, 378, 427, 429, 433, 442 Tort 49, 56, 145, 172, 226, 257, 262, 307, 319–320, 348, 362, 366, 376, 408, 430 Torture 100, 187, 408 Transformationism 32, 40, 42–43 Treaty 97 Truth 68–69, 73, 81, 142, 176–177, 196, 200–201, 213, 218, 308, 322– 323, 328, 377, 385, 387–388, 390– 391, 396, 421, 448–449, 454, 466 U.K. 248 United Kingdom 119 United Nations 32, 41 United States 8, 62, 99, 123, 147, 155, 157, 166–168, 171, 179, 181– 183, 195, 214, 222, 264, 287, 296, 311, 340, 365–366, 427, 438

Index Universal Declaration of Human Rights 277 Universalism 293, 308 Universality 116, 118, 120, 133, 162, 219, 377 Universals 66, 68 U.S. 9–10, 25, 41–43, 49, 86–87, 90, 96–98, 119, 130, 147, 152, 155–156, 158–159, 165–167, 171, 181–182, 184–185, 217, 219, 225–226, 264, 287, 289, 296–297, 299, 301–302, 311, 320, 340–341, 348, 351, 353, 358–360, 368, 370, 380–381, 408, 419, 422, 425, 427, 437, 468 U.S. Supreme Court 287 War 8, 28, 34, 39, 41–42, 62, 70, 74– 75, 83, 87, 96–97, 102, 122, 136, 138–139, 146, 148–149, 152, 155– 158, 161–162, 166–169, 171, 173, 175, 177, 179–180, 182–183, 185, 188–189, 222, 224, 228, 237, 239, 277, 287, 290, 292, 295, 300, 303, 305, 314, 334, 340–341, 355–359, 362, 364, 378, 412, 425, 427, 445, 448–449, 452, 458, 463, 465, 467 Weber 108, 117, 168, 203, 205, 275, 281, 297, 314–317, 341, 346–348, 358–360, 363–365, 367, 370–371, 456, 466 Westphalia 41 Women 46, 52–53, 61, 159, 181, 205, 261, 344, 378, 410, 436, 439 World Bank 41–42, 447 World Trade Organization 35, 42 WTO 35, 42