The Rule of Law and Democracy: The 12th Kobe Lecture and the 1st IVR Japan International Conference, Kyoto, July 2018 3515124829, 9783515124829

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The Rule of Law and Democracy The 12th Kobe Lecture and the 1st IVR Japan International Conference, Kyoto, July 2018 Edited by Hirohide Takikawa

Archiv für Rechts- und Sozialphilosophie Franz Steiner Verlag

Beiheft 161

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

beiheft 161

THE RULE OF LAW AND DEMOCRACY The 12th Kobe Lecture and the 1st IVR Japan International Conference, Kyoto, July 2018 Edited by Hirohide Takikawa

Franz Steiner Verlag

Umschlagbild: Justitia, Landgericht Ulm Quelle: shutterstock.com / Georg_89 Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2020 Layout und Herstellung durch den Verlag Druck: Beltz Grafische Betriebe, Bad Langensalza Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. ISBN 978-3-515-12482-9 (Print) ISBN 978-3-515-12484-3 (E-Book)

Contents

HIROHIDE TAKIKAWA

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Part 1 The 12th Kobe Lecture KRISTEN RUNDLE

Fuller’s Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Part 2 Borders and Grounds of Democracy TETSU SAKURAI

The Borders of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 HIROHIDE TAKIKAWA

Drawing National Boundaries for Global Governance . . . . . . . . . . . . . . . . . . . . . . . 59 SHIH-TUNG CHUANG

Hate Speech, Legitimacy, and Democracy

A Critical Survey of Ronald Dworkin’s Legitimacy Argument

71

TAKAYUKI KAWASE

A Liberal Justification of Nationalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 SHINICHI TABATA

Deliberative Democracy as Quasi-Pure Procedural Justice

Epistemic Value in Jürgen Habermas

93

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Contents

DAI OBA

Procedure-Based Substantive Equality

Pure Procedural Justice and Property-Owning Democracy

107

LAŸNA DROZ

Environmental Civil Disobedience as Catalyst for Sustainable Democracy . . . . . 123

Part 3 Rule of Law and Aspects of Jurisprudence CHUEH-AN YEN

Cultural Reality, Value-Serving, and Internal Reasons

Some Remarks on Gustav Radbruch ’s Concept of Law

137

IMER FLORES

Law as an Artefact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 TERESA CHIRKOWSKA-SMOLAK / MAREK SMOLAK

Moral Reasoning of Judges and the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 MITSUKI HIRAI

Legal Positivism and the Point of Theoretical Value-Neutrality . . . . . . . . . . . . . . . 177 ALESSIO SARDO

Robert Alexy, Frederick Schauer, and the “Positivist” Theses . . . . . . . . . . . . . . . . . 189 MONIKA ZALEWSKA

Does Hans Kelsen’s Pure Theory of Law Supports Rule of Law and Democracy? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 KUMIE HATTORI

A Particularistic Dimension of the Rule of Law

On Razian Conception and a Perspective to Misrule

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Preface HIROHIDE TAKIKAWA

In the early summer of 2018, Professor Kristen Rundle, guest speaker for the 12th Kobe Lecture, and other participants assembled at Doshisha University in Kyoto, the venue of the inaugural IVR Japan International Conference . By ill luck, the first day was hit by heavy rain that broke historical records, and almost all the trains ceased operations in the area . Nevertheless, participants from many countries struggled to the conference venue . I must confess that I was very touched by seeing them engaging in vigorous discussions of various issues on legal and social philosophy even in such terrible weather . On behalf of the Japanese National Section of the International Association for Philosophy of Law and Social Philosophy (IVR Japan) and the Japan Association of Legal Philosophy ( JALP), it is with great pleasure that I present the proceedings of the 1st IVR Japan International Conference and the 12th Kobe Lecture . The keynote speaker, Professor Kristen Rundle1, read her Kobe Lecture Fuller’s Relationships on July 7, 2018 at Doshisha University in Kyoto, Japan . Another invited lecturer, Professor Tetsu Sakurai, read his paper Democracy’s Border the following day . More than 80 researchers from around 20 countries participated in the inaugural IVR Japan International Conference . From July 6 to July 8, the two guest lectures were delivered, two selected panels of speakers were organized, and more than 60 peer-reviewed papers were presented . This volume contains the 12th Kobe Lecture and the articles selected through peer review that were originally presented at the inaugural IVR Japan International Conference . Before introducing the inspiring contents of the lecture and articles, I would like to mention the origins of the Kobe Lectures and the IVR Japan International Conference .

1

Associate Professor at Melbourne University

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History

The Kobe Lecture is an international lecture program founded in 1988 to commemorate the 13th World Congress on Philosophy and Law and Social Philosophy held in August 1987 in Kobe, Japan . The lectures are administered by IVR Japan, in cooperation with the JALP . Every two or three years, a scholar engaged in creative research on basic issues of legal, social, and political philosophy is invited to Japan . The lecture is usually given in a major city of Japan . Professor Ronald Dworkin gave the inaugural lecture in 1990 . Professor Ralf Dreier was the second lecturer in 1992 . In 1994, Professor Joseph Raz gave the third in the series of lectures . The fourth lecture was an exception in that it was given during the First Asia Symposium in Jurisprudence, which had the theme of “Law in a Changing World: Asian Alternatives” in 1996 . Professor Will Kymlicka gave the fifth lecture in 1998 . The sixth was given in 2000 by Professor Randy Barnett . In 2002, Professor Emilios Christodoulidis gave the seventh lecture . IVR Japan and the JALP decided to hold subsequent Kobe Lectures every three years instead of two . The eighth lecture was given in 2005 by Professor Ulfrid Neumann . Professor Cass Sunstein gave the ninth lecture in 2008 . In 2011, Professor David Miller gave the 10th lecture . The 11th lecture was given in 2014 by Professor Brian Tamanaha . The lectures were published in the ARSP (Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy) . The proceedings of the fourth, fifth, ninth, 10th, and 11th lectures have been published as a special issue (Beiheft 72, 96, 132, 139, and 152, respectively) of the journal, as is this 12th lecture . The Kobe Lecture is intended to advance our understanding of the legal, social, and political spheres of life . Important theoretical issues are explored from a perspective that is philosophical yet sensitive to practical problems . In 2015, IVR Japan decided to hold a new series of international conferences connected with the Kobe Lecture from 2018 . The IVR Japan International Conference (the official name of this series of conferences) is intended to offer good opportunities to present recent research outcomes and to enhance academic exchanges among international researchers on legal and social philosophy, including Japanese colleagues and promising young scholars . Holding the inaugural IVR Japan International Conference has been a considerable challenge for the Japanese branch of IVR . We hope that this series of IVR Japan International Conferences will provide a wonderful opportunity for international researchers to exchange opinions and ideas here in Japan .

Preface

The 12th Kobe Lecture

Kristen Rundle gave the 12th Kobe Lecture a very impressive heading–Fuller’s Relationships–following her excellent book with a similarly impressive title: Forms Liberate .2 In her Forms Liberate, she has offered a fresh, attractive, and convincing understanding of Lon L Fuller’s jurisprudence and extracted the significant implications of the form of laws based on a thorough investigation of his published works, working papers, and letters . In the Kobe Lecture, Rundle recapitulates her work and proceeds to illuminate the importance of relationships in Fuller’s jurisprudence, especially that between legal officials and legal subjects . Kristen Rundle commences her lecture by mentioning the letters between Lon Fuller and Ryosuke Inagaki, a leading Japanese researcher on natural law theory and translator of Fuller’s The Morality of Law . Fuller wrote to Inagaki that “procedure, process, and institutional forms” can never be “ethically neutral .”3 Rundle shows in her lecture that this implies a relational conception of the authority of law . Rundle reexamines the famous debate between H . L . A . Hart and Fuller . While Hart defends the core claim of legal positivism that law and morality are necessarily separable, or the separability thesis, Fuller opposes it . The bottom line is that Fuller did not present his arguments as a follower of the natural law tradition, which stresses the morality of the content of law, but rather focused on the morality of the form of law, which he calls “the inner morality of law .” Fuller points out that King Rex would fail to make law in no less than eight ways, and from that draws the eight principles that law must be: (1) general, (2) publicly promulgated, (3) nonreactive, (4) clear, (5) noncontradictory, (6) possible to obey, (7) constant, and (8) congruent with official action .4 Rundle shows that these principles are not offered as “the required features of individual laws within a condition of the rule of law,” but rather as “the conditions from which legal as opposed to other modes of ordering can emerge .”5 She finds a distinctly relational feature of these conditions in Fuller’s analysis of the story of Rex and its implications when he discusses law as a cooperative effort between lawgivers and subjects . According to Rundle, Fuller accurately understood that his arguments were about what kind of job law-making is . In other words, he illuminates a collaborative relationship between lawmakers and citizens . However, Hart did not properly grasp the point of Fuller’s arguments and simply objected that the eight principles had some implications for the effectiveness of law but no intrinsic connection to anything moral .

Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller, 2012, Oxford: Hart Publishing . 3 Rundle, Fuller’s Relationship (this volume), 18 4 Lon L Fuller, The Morality of Law, 1969, 33–44 5 Rundle, Fuller’s Relationship (footnote 3), 22 2

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Hirohide Takikawa

Rundle sheds a new light on the internal morality of law by putting Fuller’s arguments in the context of his wider research program to produce a “science or theory of good order and workable social arrangements,”6 which he called eunomics . In this understanding of Fuller’s project, the internal morality of law shows itself to be a distinctive character of the forms of law to achieve the goal of building good order . Rundle draws our attention to an important remark by Fuller: “Every departure from the principles of the internal morality of law is an affront to man’s dignity as a responsible agent .”7 According to Rundle, law presupposes and constitutes agency on the part of the subject of law . In other words, law gives humans legal agency and then enables them to interact with each other . Only legal officials engaged in role morality who then meet the relational demands for the appropriate regard of citizens can claim legitimate authority . Simply put, legal officials acquire legitimate authority over their subjects only through law . This is what Rundle names the “relational conception of authority .” This intrinsic effect on agency by interaction through law is what the internal morality of law is all about . With these insights, Rundle returns to the Hart–Fuller debate to clarify why it is important to look at the relationships between legal officials and legal subjects . Hart argues that to obey the principles of the internal morality of law is merely an effective way to achieve legal ends . Fuller disagrees with Hart, saying that Hart confuses managerial direction and law . If legal positivism is just a conception of managerial direction, it would be safe to say that the principles are morally neutral . However, as the principles of generality, nonretroactivity, and congruence between official action and declared rule clearly show, the eight principles can never be morally neutral requirements of managerial direction; they are the internal morality of law . Without realizing the distinction between managerial direction and law, according to Rundle’s understanding of Fuller’s arguments, we cannot explain the phenomenon of fidelity of law . Moreover, Rundle draws practical implications from Fuller’s understanding of the rule of law . She finds the core of his idea in the enterprise of framing governing relationships according to the demands of legality . From this perspective, it is clear why the public are worried about a contemporary trend of “contracting out” governmental functions to private actors . Concern arises because contracting out to private sectors is likely to obscure the governing relationships between legal officials and legal subjects in which political legitimacy should be grounded . Based on her relational conception of the authority of the law, she also convincingly explains public concerns about wide discretion within administrative decision-making structures . The granting of wide discretion should be carefully examined because it would give the decision-maker arbitrary power and damage the healthy relationship between the decision-maker and

6 7

Ibid ., 23 Lon L Fuller, The Morality of Law (footnote 4), 162

Preface

the person subject to his authority . According to Rundle, these examples show that the eight principles of the internal morality of law are important demands for the relationship between lawgiver and subject, but are not criteria that should be met in all cases . Fuller would admit that one of them should be compromised if to do so would improve legality . Rundle concluded her lecture by showing what Fuller was seeking in legal philosophy . On the last page of The Morality of Law, complaining about contemporary legal philosophers, Fuller calls for more research not on “conceptual models” but on “social processes that constitute the reality of law .”8 In this phrase, Rundle finds the core of Fuller’s program of legal philosophy, that is, the significance of “procedure, process, and institutional forms,” which Fuller mentioned in his letter to Inagaki . Her lecture clearly shows us the overall aim of Fuller’s jurisprudence . Selected Articles

Part Two of this volume is a collection of seven papers on the borders and grounds of democracy . Tetsu Sakuai claims that we should pay more attention to the borders of law because they are indispensable to maintain our basic rights, but at the same time, they threaten our important values . By illustrating a dreadful predicament for stateless people, Sakurai reminds us that a national government can be the only protector of their basic rights . On the other hand, he shows that democracies require borders for self-governance and necessarily imply exclusion . It follows that a national government can be both an angel and a devil in human society . To address this paradox of democratic self-determination, Sakurai urges us to face the problem of law’s spatiality . The Treaty of Amsterdam, signed in 1997, describes the European Union as “an area of freedom, security and justice,” that is, a sharply bounded space imbued with democracy and the rule of law . This implies that there is an outside in which servitude, insecurity, and injustice stand . It assumes that a political entity provides a set of liberties and equality only in a strictly bounded community . Confronting the discrepancy between the universal values of freedom, equality, and other basic rights and the requirement of a bounded community to protect them, Sakurai stresses our commitment to the project of further advancing these values and the institutions that implement them, and maintains that we should give more weight to civic boundaries than to territorial ones . He argues for the primacy of civic boundaries because they play an essential role in constituting the borders of law .

8

Ibid ., 242

11

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Hirohide Takikawa

Hirohide Takikawa argues that it is morally permissible to draw national boundaries to achieve a better institutional arrangement for global justice in spite of cosmopolitan objections to borders . Takikawa shows that it is important to draw national boundaries territorially, but not temporally, elementarily, or personally to discharge our moral duty of justice more effectively and thoroughly . Takikawa also argues that the national boundary between citizens and foreigners can be defended as a better way to ensure that each territory has its own responsible governing agent . Chuang Shih-Tung carefully examines the controversial relationship between democracy and hate speech . Some argue that hate speech injures basic democratic values, but others hold that bans on hate speech damage democracy . Ronald Dworkin takes the latter position, asserting that upstream intervention against hate speech damages the legitimacy of downstream laws . Chuang objects to Dworkin’s claim and maintains that the prohibition of hate speech does not necessarily diminish the legitimacy of downstream legislation . Takayuki Kawase argues for liberal nationalism by showing that the liberal integration of nation is an effective way to implement those egalitarian liberal policies . By focusing on the important roles of a national language and mutual trust, Kawase states that liberalism and nationalism are not only compatible but also complementary, and urges multicultural national education for their prosperous union . Shinichi Tabata explores the relationship between deliberative procedures and truth-tracking outcomes in theories of democracy . Arguing against David Estlund’s objection that deliberative democracy cannot evaluate whether its outcomes are right, owing to its lack of procedure-independent standards of rightness, Tabata attempts to show that it has both procedural values and substantive criteria by examining Jürgen Habermas’s conception of deliberative democracy as quasi-pure procedural justice . Dai Oba sheds light on the internal relationship between democracy and procedure by carefully examining and clarifying the idea of pure procedural justice and its relationship with property-owning democracy in John Rawls’s theory of justice . After drawing several requirements from the notion of pure procedural justice, Oba shows that we can regard property-owning democracy itself as an institutional arrangement of pure procedural justice, and can therefore explain its wide endorsement . Laÿna Droz explores the idea of environmental civil disobedience . It is certain that democratic mechanisms are important to address environmental problems, but they are sometimes delayed in coping with the urgency of the environmental crisis and less inclusive of those beings that are vulnerable to environmental problems such as minority groups, non-human living beings, ecosystems, and future generations . Droz maintains that environmental civil disobedience is not only compatible with but also complementary to democratic decision-making procedures about environmental matters . Part Three of this volume is a collection of seven papers on the rule of law and aspects of jurisprudence .

Preface

Chueh-an Yen carefully examines and interprets the concept of law proposed by Gustav Radbruch . Arguing against Robert Alexy’s influential interpretation of this concept, Yen offers a refined understanding that law is a special kind of cultural reality in the sense that it is based on value-related attitudes, intended to serve important values, and motivating legal subjects–including jurists–to follow legal reasoning . Imer B . Flores defends the thesis that law is an artefact and elaborates on the idea of an artefact . Referring to theories of artefacts from Aristotle to modern scholars, he proposes a general theory of artefacts and situates law in that theory . Flores carefully discusses authorial intention as a condition for the artefact, and he provides an artefactual account of law that enables us to explain customary laws as well as statutory ones . Teresa Chirkowska-Smolak and Marek Smolak examine a precondition for the rule of law, namely a judge’s superiority over moral reasoning . Referring to recent psychological theories and their own research, they assert that judges do not have special moral competence . Chirkowska-Smolak and Smolak suggest that judges should pay more attention to the reasons provided by the legislature to follow faithfully the idea of the rule of law . Mitsuki Hirai carefully examines legal positivism by distinguishing subjective positivism–a first-order claim that law and morality should be separated–from methodological positivism, a second-order claim that legal theory and moral evaluation should be separated . Hirai argues against legal positivism by showing that the value neutrality underpinning subjective positivism in turn impairs methodological positivism . Alessio Sardo attempts to draw out a useful set of tests for judicial review beyond the dispute between positivism and nonpositivism . By carefully examining nonpositivist Robert Alexy’s and positivist Frederick Schauer’s theories of law, Sardo suggests that both are engaged in a joint project to elaborate a set of tests for judicial review that include an over/underinclusive test and a proportionality test . Monika Zalewska argues that Hans Kelsen’s pure theory of law defends the rule of law and democracy despite its supposed value neutrality . While some scholars claim that it simply describes the general features of a legal system, Zalewska insists that it supports the rule of law and democracy by analyzing the idea of supervenience, which would naturally imply both the principle of equal treatment and the requirement for a rational lawgiver . Kumie Hattori carefully compares two competing conceptions of the rule of law, the positivist conception of Joseph Raz and the nonpositivist one of Lon L Fuller . After clarifying some differences between their conceptions, Hattori argues for the Razian conception of the rule of law by showing that it can illuminate the serious social problem that good men can enact good rules that others will misapply .

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Acknowledgements

On behalf of IVR Japan, let me express our deep gratitude to all those involved in the 12th Kobe Lecture and the inaugural IVR Japan International Conference . I would like to express my deepest gratitude to Kristen Rundle for her wholehearted cooperation in preparing for the Kobe Lecture and this publication . She has always been punctual, or actually more than punctual, and responded promptly to my requests and questions . It is a great honor to count her in the Kobe Lecture Hall of Fame . I would also like to express my profound gratitude to Tetsu Sakurai and other contributors to this volume for their kind cooperation . I would like to express my heartfelt gratitude to all the participants in the first IVR Japan International Conference . Without their generous contribution, we could not have had such a wonderful and successful international conference . I would also like to thank all those who contributed their time and effort, working with the organizers to make the inaugural IVR Japan International Conference and the 12th Kobe Lecture as fruitful as it has turned out to be . My sincere thanks go to Doshisha University, which provided us an ideal conference venue, and Michihiro Kaino and Makoto Usami for their hard work in making the conference arrangements . As the then President of IVR Japan and the head of the organizing committee, I would like to thank every single member of the Executive Committee of the Japanese section of IVR, especially Secretary General Hidehiko Adachi and Tatsuya Yokohama, then Treasurer, for their pioneering efforts, without which we would have never reached the goal by such a long and winding road . I wish to express my special appreciation to the Kikawada Foundation for financial support that made the conference feasible . I also express my sincere appreciation to Susumu Morimura, President of the JALP, and the executive board of the JALP for their ungrudging support of this innovative enterprise . On behalf of the contributors to this volume, as well as JALP and IVR Japan, I wish to express my appreciation to the managing editor of ARSP, Richterin am Bundesgerichtshof Dr . Annette Brockmoeller, for accepting our proposal . Thanks are also due to Simone Zeeb for her skillful help in the publication process . prof . Hirohide Takikawa College of Law and Politics, Rikkyo University, 171-8501 Tokyo, Japan, President of IVR Japan (then), Member of the Executive Committee of IVR, tkkw@rikkyo .ac .jp

Part 1 The 12th Kobe Lecture

Fuller’s relationships KRISTEN RUNDLE* 1

Abstract

Inspired by correspondence between Fuller and a Japanese colleague, this article situates Lon Fuller’s lifelong attention to procedures, processes and institutional forms in the context of the relational demands that he saw as constitutive to a condition of legality . Fuller’s jurisprudence of the ‘internal morality of law’ must be understood as offering prescriptions for all governing relationships that are framed by the authority of law . The article thus deepens our understanding of the consistent features of Fuller’s treatment of the conditions necessary to possess and exercise the authority of law, at the same time as it offers a fresh perspective through which to identify and address contemporary challenges of the rule of law that bear upon the intelligibility of relationships between legal officials and legal subjects . Keywords: Fuller, internal morality, authority, procedure, governing relationships, the rule

of law .

I.

Introduction

In the archive of Lon Fuller’s working papers and correspondence held at Harvard Law School library can be found a series of letters between Fuller and a young scholar who was to become the leading Japanese expert on natural law theory in the tradition of St

Associate Professor and Co-Director, Centre for Comparative Constitutional Studies, Melbourne Law School, Australia . I am indebted to members of the Executive of IVR Japan, and especially to the President of IVR Japan, Professor Hirohide Takikawa, for the opportunity to deliver the 12th Kobe Memorial Lecture on which this article is based . *

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KRISTEN RUNDLE

Thomas Aquinas .1 Ryosuke Inagaki first approached Fuller to direct his learning on ‘the crucial problems of natural law theory’ during a research visit to Harvard in 1962 .2 That the opportunity to study with Fuller was immensely fruitful for the young Inagaki is clear from the record of correspondence that followed .3 Fuller, however, also came to owe his former student a great debt, as it was Inagaki who translated Fuller’s book, The Morality of Law, into Japanese . That this occurred within a short period after its original publication meant that Fuller’s thinking on the demands of the ‘internal morality of law’ was accessible to Japanese students of jurisprudence from the time of its writing . The interest in Fuller’s thought that has since been sustained in Japan thus owes much to Inagaki’s efforts . The letters between Fuller and Inagaki reflect the warm relationship that developed between the two scholars over the course of the 1960s . One of particular interest sees Fuller express his frustration about the reception of The Morality of Law by critics from the ‘natural law’ side of the legal philosophy camp .4 He had evidently expected a more supportive response . Fuller’s main complaint in the letter, however, is about the directions in which his natural law contemporaries were taking their shared inheritance .5 As he put the point to Inagaki, I have come to think that the greatest failing of modern writers in the natural-law vein is that they ignore procedure, process, and institutional forms . They lay down rules about what is right, and leave to someone else the problem of how you get there . They are apt to feel uncomfortable when you raise the question of procedural implementation . And, in any event, they regard procedure as ethically neutral, being just as critical of my book in this respect as the most ardent positivists . Another way of saying almost the same thing is that they ignore the morality of social role, something that is prominent in the Greeks (and, of course, in Confucius) .6

The candour with which Fuller advances his complaints is characteristic of the tone he took in correspondence with those who he could expect to be sympathetic to the distinctive jurisprudential path that he was trying to chart . Inagaki was clearly someone who Fuller trusted in this regard . Yet we also learn something important about that distinctive jurisprudential path from the substance of the complaint itself . Fuller’s concern for the neglect of “procedure, process and institutional forms” by legal philos-

For an extensive engagement with the archive of Fuller’s private papers, see Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller, 2012 . All references to archival material in this article are to The Papers of Lon L Fuller held at Harvard Law School Library . 2 Letter from Ryosuke Inagaki to Lon L Fuller, June 7, 1962: The Papers of Lon L Fuller (Box 11, Folder 17) 3 Letter from Ryosuke Inagaki to Lon L Fuller, August 18, 1963: The Papers of Lon L Fuller (Box 11, Folder 17) 4 Letter Lon L Fuller to Ryosuke Inagaki, April 9, 1968: The Papers of Lon L Fuller (Box 11, Folder 17) 5 For a study of Fuller’s relationship to the natural law tradition, see Kristen Rundle, Opening the Doors of Inquiry: Lon Fuller and the Natural Law Tradition, in: The Cambridge Companion to Natural Law Jurisprudence, ed . George Duke and Robert P George, 2017, Chapter 16 . 6 Letter from Lon L Fuller to Ryosuke Inagaki, April 9, 1968: The Papers of Lon L Fuller (Box 11, Folder 17) 1

Fuller’s relationships

ophers, alongside the connection he seeks to draw between the “ethical” significance of procedure and “the morality of social role”, warrants closer attention . The argument I develop in this article is that these comments offer an illuminating starting point from which to deepen our understanding of the relational demands that Fuller saw to be constitutive to a condition of legality . On Fuller’s analysis, procedures, processes, and institutional forms can never be ‘ethically neutral’ because as vehicles for the carriage of governing relationships they carry the responsibilities and opportunities of the authority of law itself . The significance of ‘procedure, process, and institutional forms’ to the conditions necessary to possess and exercise the authority of law must therefore be appreciated . Second, it is equally important to understand the demands of Fuller’s jurisprudence as salient to all governing relationships framed by the authority of law, and not merely those arising from the legislative mode of governance with which his contribution to theorising the idea of ‘the rule of law’ is most closely associated . Grasping this dimension of Fuller’s thought opens up a new lens through which to examine and evaluate contemporary instances of the rule of law that raise specifically relational concerns . To set the scene for this analysis, I begin by briefly recounting the standard view of Fuller that emerged from his famous debate with H L A Hart (Part II) . I then restate the core emphases of my own efforts to articulate and develop Fuller’s agenda on its own terms by reference to his enduring concern for the conditions necessary to be a legal subject and the ‘role morality’ that attaches to the status of being a legal official (Part III) . I then dwell on the uncompromisingly relational conception of the authority of law that informs these features of Fuller’s jurisprudence (Part IV) before returning to why ‘procedure, process and institutional forms’ can never be ‘ethically neutral’ in their role as vehicles for the carriage of governing relationships framed by such authority (Part V) . The generative potential of this perspective to contemporary challenges of the rule of law is then explored (Part VI), before I offer some concluding remarks (Part VII) . II.

The Standard View

Few students of legal philosophy in the past 60 years have escaped some sort of engagement with the famous debate in the 1958 Harvard Law Review between Fuller and the English legal positivist, H L A Hart . In legal philosophy circles, most came to know of Fuller as Hart’s ‘natural law’ respondent in that twentieth century iteration of the ongoing contest between natural lawyers and legal positivists about the connections between law and morality .7 What Hart did in his remarkable essay, ‘Positivism and the

Fuller however had been writing on questions of jurisprudence since the early 1940s, most notably, in The Law in Quest of Itself, 1940 . 7

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Separation of Law and Morals’,8 was to lay the foundations for retrieving the theory of legal positivism in its Anglophone guise from the shackles of John Austin’s nineteenth century command theory of law . This involved a thoroughgoing defence of the core tenet of legal positivism that law and morality are necessarily separable (the ‘separability thesis’) with respect to a range of sites of legal philosophical debate in which the viability of that thesis might be contested . By choosing to reply to Hart, Fuller effectively submitted himself to a debate framed by Hart’s objectives . From the beginning, however, it was clear that he was working within the parameters of that debate in an unorthodox way . He was not presenting his arguments in the vein ordinarily expected of a thinker associated with the natural law tradition: that is, with a primary emphasis on the morality of the content of law . Fuller’s argument, instead, was that law contained an ‘internal morality’ that disturbed positivism’s separability thesis . Fuller’s explanation of what he meant by this idea of the ‘inner’ or ‘internal morality of law’ in ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ was at best under-worked .9 We are however to take something of its meaning from his suggestion that ‘the ideal of fidelity to law is something for which we must plan’ .10 To illustrate, Fuller spins a brief take about a nameless and selfish monarch who cannot succeed in governing his subjects through law because he fails to comprehend the constraints on his own actions that the lawgiving role demands .11 As Fuller explains it, at the root of the monarch’s failure was his failure to face ‘the responsibilities of his position’ .12 These ideas are developed further Fuller’s reply to Hart on the question of the status of Nazi law as law . Hart had argued that one must not confuse the moral defects of Nazi law with its status as valid law . Repeating the positivist mantra that ‘the existence of law is one thing, its merit or demerit another’, he insisted on a clear separation between the two . Fuller, however, not only rejected Hart’s argument but saw a ‘law and morality’ connection at issue in the example of Nazi law that ran along different lines . Foregrounding the formal defects of the Nazi legal system and certain of its laws – the hopeless lack of connection between the law as published and how it was administered, if indeed the law mattered at all – Fuller insisted that it is no stretch to ‘deny the name of law’ to a legal system which ‘clothes itself in a tinsel of legal form’ and yet ‘far departs from the inner morality of law’ .13

H L A Hart, Positivism and the Separation of Law and Morals, Harvard Law Review 71 (1958), 593–629 Lon L Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, Harvard Law Review 71 (1958), 630–672 10 Ibid ., 642 11 Ibid ., 644–645 12 Ibid ., 645 13 Ibid ., 660 8 9

Fuller’s relationships

Hart’s seminal book, The Concept of Law,14 dedicated only two lines to the arguments of Fuller’s Harvard Law Review essay . Fuller’s so-called internal morality of law, he said, was ‘unfortunately compatible with great iniquity’ .15 The brevity of Hart’s response is instructive . The law and morality connection of interest to his defence of legal positivism was the morality or otherwise of the content or ends of law(s) produced in compliance with Fuller’s prescriptions . Fuller had said little to suggest that compliance with his ‘internal morality of law’ guaranteed that these ends would be moral . Accordingly, Hart concluded, he had failed to unsettle the separability thesis . Fuller, however, could not shake off Hart as readily as Hart thought he could shake off Fuller . His objections to the vision of law presented by Hart’s positivism permeated his 1964 book, The Morality of Law,16 in which we meet the hapless King Rex who failed, in no less than eight ways, to make law .17 As Fuller tells the story, Rex came to the throne as a man of goodwill determined to make his name in history as a great lawgiver . His dream, however, was short-lived . First Rex failed to achieve appropriate generality in the rules he issued . Then some of his laws were kept secret from his subjects, while others operated retroactively . He proved in turn to be a hopeless legislative draftsman, with his laws suffering from obscurity and perpetuating confusion in their contradictory demands . He also changed his laws far too often, while others were impossible to comply with . Adding insult to injury, Rex’s judicial opinions bore little relation to the enacted rules on which they were allegedly based . None of this went down well with Rex’s subjects, who were considering revolt when Rex suddenly died . His successor, Rex II, was smarter . He put the powers of government in the hands of psychiatrists and experts in public relations so that his people could be made happy without rules .18 The playfulness of the tale of King Rex has done much to secure its place as a classic text in the canon of twentieth century Anglo-American jurisprudence . Its accessibility has also assured its status as a reference point for those who grapple with the demands of what it means to create a condition of the ‘rule of law’ . By exemplifying how not to create and administer a legal system, the pathologies of Rex’s efforts invite reflection on the constitutive demands of the enterprise that he undertook but failed to achieve . These demands are described by Fuller as ‘eight kinds of excellence towards which a system of rules may strive’: that law be (1) general, (2) publicly promulgated, (3) non-retroactive, (4) sufficiently clear, (5) non-contradictory, (6) possible to comply with, (7) relatively constant through time, and (8) that there be congruence between official action and declared rule . Together, Fuller tells us, these principles comprise ‘the internal morality of law’ .

14 15 16 17 18

H L A Hart, The Concept of Law, 1961 Ibid ., 207 See Rundle (footnote 1), Chapter 4 . Lon L Fuller, The Morality of Law, 1969, Chapter 2 Ibid ., 33–38

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It is apparent from the context in which Fuller presents the eight principles that they are not offered as descriptions of the required features of individual laws within a condition of the rule of law .19 Rather, the principles speak to the conditions from which legal as opposed to other modes of ordering can emerge . This is obvious from the title of the chapter in which we meet Rex and learn of his failures: ‘The Morality That Makes Law Possible’ . Relevantly for present purposes, the distinctly relational structure of these conditions is also clear . In his analysis of the lessons to be learned from the tale of Rex, Fuller speaks of the ‘reciprocity’ between ‘government and citizen’ that is built into the structure of governing through enacted rules .20 His famous argument that to secure the subject’s ‘fidelity to law’ the lawgiver must enter into a relationship of ‘reciprocity’ with her, and that ‘nothing will be left on which to ground the citizen’s duty to observe the lawgiver’s rules’ if this bond is completely ruptured, is also presented in this context .21 The centrality of these relational demands is then further illuminated through the argument that the ‘internal morality of law’ entails ‘a relationship with persons generally’, and that the appeal of its eight principles is to ‘a sense of trusteeship’ as well as to ‘the pride of the craftsman’ .22 The same theme animates Fuller’s insistence later in the book that law as an enterprise relies for its very existence on a ‘cooperative effort – an effective and responsible interaction – between lawgiver and subject’ .23 Developing his earlier position in The Concept of Law, Hart’s engagement with Fuller’s arguments in his 1965 review of The Morality of Law noted few of these features of Fuller’s embellishment of the ‘internal morality’ idea .24 Hart instead argued that, akin to a ‘morality of poisoning’ – principles governing the poisoner’s craft that enable him to poison well – compliance with Fuller’s eight principles merely made individual laws so produced more effective Fuller’s principles could of course take on a moral colour if they assisted the realisation of a moral legal end . But on their own they had no intrinsic connection to anything ‘moral’ . Some of the eight principles might of course translate to such a description – for example, the principle that law be ‘publicly promulgated’ demands the specific feature of publication . But, as I explain further below, this is an implication of the principles rather than the primary demand to which they speak . Appreciating this also has implications for how we are to understand Fuller’s jurisprudence as presenting a ‘formal’ rather than ‘procedural’ theory of law . In addition to my own work the characterisation of Fuller as a jurist of law’s ‘form’ has been advanced especially strongly by Jeremy Waldron: see, for example, The Concept and the Rule of Law, Georgia Law Review 43 (2008), 1–61 . However, the point emphasised in Waldron’s understanding of ‘form’ is the “formal qualities … that are supposed to characterize the norms on which state action is based”: ibid ., 7 . While we might understand Fuller’s eight principles as articulating formal demands on the norms produced in compliance with those principles, this is a narrower understanding of Fuller’s preoccupation with ‘form’ than that reflected in the following analysis . 20 Fuller (footnote 17), 39–40 21 Ibid ., 40 22 Ibid ., 43 23 Ibid ., 216 24 H L A Hart, Book Review: The Morality of Law by Lon L . Fuller, Harvard Law Review 78 (1965), 1281– 1296 19

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This conclusion set the tone of the positivist response to Fuller’s jurisprudence for generations . Fuller, however, was genuinely bewildered, indeed wounded, by where things had apparently landed .25 As he put it in a letter to a colleague, he understood his arguments in The Morality of Law to be about ‘what kind of job law-making is’ .26 Attempting further clarification, Fuller pushed back against Hart’s ‘efficacy’ reading of his eight principles in the carefully argued ‘Reply to Critics’ appended to the second edition of The Morality of Law .27 For positivists, however, the last word of the Hart-Fuller debate had been Hart’s . Through the ‘morality of poisoning’ argument, Hart had demonstrated that Fuller’s arguments about the internal morality of law had done nothing to disturb the separability thesis .28 This conclusion served the aims of positivism neatly, but it pushed from view Fuller’s careful analysis of the relational demands that he saw be constitutive to a condition of law . III.

Fuller Reclaimed

The agenda for the ‘law and morality’ debate as it was set by Hart was at best an awkward frame for the wider program of inquiry that Fuller had set out to develop in his own right . In other work I have demonstrated that attending to this wider program– his ultimately incomplete attempt to produce a ‘science or theory of good order and workable social arrangements’ that he called eunomics29 – tells us much about Fuller’s sustained preoccupation with the distinctiveness of different forms of law, and his concern to illuminate how this distinctiveness rests upon the particular attitudes, capacities and commitments that different legal forms ask of the agents who participate withThe archive reveals much to this effect . Fuller was especially troubled by how Hart omitted Fuller’s reference to ‘a sense of trusteeship’ that he put alongside ‘the pride of the craftsman’ in explaining the appeal of the principles of the internal morality of law . He was aggrieved about how this made it look like he, too, understood the value of their observance in terms of efficacy . See further Rundle (footnote 1), 106–108 . 26 Letter to O Lewis, March 11, 1966: The Papers of Lon L Fuller (Box 5, Folder 1) 27 See Rundle (footnote 1), Chapter 5 for an extended analysis . 28 Due to constraints of space I do not here outline the treatment of Fuller’s claims by Hart’s positivist successor, Joseph Raz . I have situated Raz’s engagement with Fuller in Kristen Rundle, Form and Agency in Raz’s Legal Positivism, Law and Philosophy 32 (2013), 767–791, Kristen Rundle, Fuller’s Internal Morality of Law, Philosophy Compass 11 (2016), 499–506, and Kristen Rundle, The Morality of the Rule of Law: Lon L Fuller, in: The Cambridge Companion to the Rule of Law, ed . Martin Loughlin and Jens Meierhenrich, 2019 (forthcoming), Chapter 10 . 29 Formally announced in Lon L Fuller, American Legal Philosophy at Mid-Century: A Review of Edwin W . Patterson’s Jurisprudence, Men and Ideas of the Law, Journal of Legal Education 6 (1954), 457, the eunomics project was initiated by Fuller out of frustration towards the neglect by fellow legal philosophers of the different forms of law, their suitability for some tasks and not others, and their animating moral commitments . The project occupied much of Fuller’s time from the late 1940s to the mid-1960s, but was ultimately left unfinished . For a collection of the writings associated with the eunomics project, see Kenneth Winston, The Principles of Social Order: Selected Essays of Lon L Fuller, Portland, 2001 . For my own treatment, see Rundle (footnote 1), Chapter 2 . 25

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in them . In drawing out these connections between form and agency in the context of his well-known arguments about the ‘internal morality of law’, my efforts to ‘reclaim’ Fuller have especially emphasised two things . The first is the attention Fuller gave to the conditions necessary to be a subject of law as opposed to some other modality of ordering . The second is the idea of ‘role morality’ that animates the presentation and development of his arguments about the ‘internal morality of law’ . Legal philosophies tend to implicate a conception of the subject of law much more than they expressly articulate one . Fuller, however, made considerable inroads towards providing such a conception when he reflected on ‘the view of man implicit in the internal morality of law’ .30 The key ideas emerge in a passage in Chapter 4 of The Morality of Law in which Fuller addresses ‘the most important respect in which an observance of the demands of legal morality can serve the broader aims of human life generally’ .31 To embark on the enterprise of subjecting human conduct to the governance of rules, he explains, ‘involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of following rules and answerable for his defaults’ .32 According to Fuller, it follows from this that Every departure from the principles of the internal morality of law is an affront to man’s dignity as a responsible agent . To judge his actions by unpublished or retrospective laws, or to order him to do an act that is impossible, is to convey to him your indifference to his powers of self-determination .

The strong point made in this passage is that derogations from the principles of the internal morality of law are of consequence to the legal subject’s experience of her own agency . This possession of agency on the part of the subject of law is to be understood in two senses . The first and most obvious from the passage is the agency presupposed by law . At its most basic, this species of agency aligns with ideas of legal capacity; of capability to participate in legal relations . As Fuller briefly elaborates the idea, rules cannot function as rules in the absence of persons who have the capacity to follow them and to be ‘answerable for their defaults’ . The second species of agency possessed by the legal subject is that which is constituted rather than presupposed by law . This sense of agency is gestured to in Fuller’s remarks about how ‘observance of the demands of legal morality can serve the broader aims of human life’ in the same context . Being constituted rather than presupposed by participation in a condition of law, this second species of agency is generated by, and thus also necessarily reliant upon, conditions that can support it . It is with respect to this species of agency – what I will here call ‘legal agency’ – that the significance of the quality of relationship between legal official(s) and legal subject(s) becomes most 30 31 32

Fuller (footnote 17), 162 Ibid . Ibid .

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apparent . It is only if the relational demands of the internal morality of law are fulfilled that this species of agency can be possessed by the legal subject .33 The status of being a legal official in Fuller’s jurisprudence – law-giver and law-applier alike –necessarily implicates an ethos of responsibility that is capable of meeting and sustaining these relational demands . It is here that his preoccupation with the idea of ‘role morality’ enters and is given content . We see this idea of role morality at work in Fuller’s analysis of how the monarch failed to ‘face the responsibilities of his position’ in his 1958 reply to Hart .34 We see the same still more obviously in the detailed analysis of King Rex’s failure to comprehend and discharge the demands of ‘the morality that makes law possible’ in Chapter 2 of The Morality of Law Indeed, The Morality of Law explicitly refers to the idea of ‘role morality’ at several points,35 with the idea developed still further in the ‘Reply to Critics’ that Fuller appended to its second edition . The ‘onerous and complex responsibility’ of the lawgiver to do their job right in the first place, Fuller there explains, is what he has ‘tried to describe in the phrase “the internal morality of law”’ .36 Fuller’s private correspondence explicitly affirms that ‘role morality’ is the primary meaning he intended for the ‘morality’ element of his idea of the ‘internal morality of law’ .37 Intriguingly, he explained this clearly to Hart, suggesting in one letter that perhaps ‘peace could be had’ in their debate about the moral significance of the ‘internal morality of law’ by ‘substituting for “morality” some word like “trusteeship”’ .38 Still, Fuller struggled to see the centrality of this idea grasped by his readers, sympathetic and critical alike . His battles on that front are especially well captured in a letter to a colleague in which he reports the suggestion of a student that he might have fared better had he called his book The Morality of Lawing rather than The Morality of Law 39 As a role morality, the point to emphasise is that the primary target of Fuller’s idea cannot be mastery over modality, in the sense of technical legal aptitude . This important aspect of lawyering of any kind might generate ‘the pride of the craftsman’,40 but it is not the moral centre of the idea of the internal morality of law as Fuller presented it . Rather, the moral centre of the idea lies in appropriate regard for and respect towards I return to the significance of this point for the design and operation of ‘procedures, processes and institutional forms’ in section V, below . See also the discussion in Kristen Rundle: Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt, Netherlands Journal of Legal Philosophy, 43 (2014), 212–239 . 34 Fuller (footnote 9), 645 35 See for example Fuller (footnote 17), 149–150, as well as the analogy drawn with Michael Polanyi’s work on the ‘activity of the scientist’, 118–121 . 36 Lon L Fuller, A Reply to Critics, in: The Morality of Law, 2nd edition, 1969, 206 37 For one example, see letter to Rolf Sartorius, January 29, 1974 . 38 Letter from Lon L Fuller to H L A Hart, October 18, 1965: The Papers of Lon L Fuller (Box 3, Folder 14) . See discussion in Rundle (footnote 1), 106–108 . 39 Letter to Lewis (footnote 26) 40 Fuller (footnote 17), 43 33

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those with whom the official is in a governing relationship framed by the authority of law . This connection between role morality and authority needs emphasis . Of the many lessons Fuller intended us to take from King Rex’s eight failures to make law, the conditions necessary to possess and exercise authority through law is foremost . On that score, a feature of the tale of Rex deserves noting: though Rex’s subjects withdrew their support for him as a lawgiver, they remained loyal to him as king .41 What Fuller wants us to take from this point is clear . Even if Rex might have maintained some kind of authority over his subjects, it was not, and could not be, the authority to govern them through law . This point that Fuller is making about the contingency of legal authority  – that it will arise (only) in response to, or in anticipation of, the corresponding effort of the lawgiver – deserves emphasis . In his jurisprudence, fidelity to law on the part of (putative) legal subjects is never to be assumed . It is instead to be earned through, and only through, relational conditions between legal officials and legal subjects that are capable of generating and sustaining that fidelity . This uncompromisingly relational conception of authority upon which the demands of Fuller’s ‘internal morality of law’ pivot must be grasped if its significance to the ‘ethical’ dimensions of ‘procedure, process and institutional forms’ is to be understood . IV.

Form, Agency and Authority: the Centrality of Relationship

All theories of authority acknowledge the inherently relational structure of the phenomenon in some or other way . This follows from how authority is always authority over someone: the capacity of one person to change the circumstances of another . Consent-based theories of authority arguably indicate this relationality most overtly, but alternate accounts nonetheless sustain core relational features . Joseph Raz’s reasons-based account of the conditions required for law to possess ‘legitimate’ authority provides a leading example . Raz’s ‘normal justification thesis’ presupposes a relationship between authority and subject in which the subject can consider the benefits of displacing her own reasons for action with those of the authority .42 The point for present purposes is that the structure of Fuller’s idea of the ‘internal morality of law’ takes this commitment to relationality as the basis of legal authority much further . Most importantly, the demands of the ‘internal morality of law’ refuse the kind of relational attenuation that can apparently still sustain a condition of lawful authority on Raz’s account . As Raz argues it, a legal system which fails to deliver on its “Leading citizens began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne”: Ibid ., 38 . See also Fuller’s explanation: ibid ., 41 . 42 See Rundle (footnote 28; Form and Agency in Raz) . 41

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claim to ‘legitimate’ authority, proceeding instead through merely ‘de facto’ authority, will still be a legal system . This, however, cannot be possible in Fuller’s jurisprudence . The relational contingency of merely de facto authority could not sustain a condition of law as Fuller understands it . Fuller’s attention to the relational conditions necessary for authority owes much to the writings of the early twentieth century German sociologist, Georg Simmel . Of foremost significance to Fuller was Simmel’s insistence that the form of the authority structure of legal governance is constitutively relational even though it might appear to be top-down and unilateral .43 Fuller had already made his intellectual debt to Simmel clear in his analysis of the lessons to be learned from King Rex’s eight failures to make law in The Morality of Law . Among the very few footnotes that accompany that analysis is one that advises those interested in ‘defining the conditions under which the ideal of “the rule of law” can be realized’ to benefit from Simmel’s analysis of ‘Interaction in the Idea of Law’ and his account of the form of social relations that attach to the sociological phenomenon of ‘Subordination Under a Principle’ .44 Archival records indicate, however, that Fuller’s engagement with Simmel’s thought went much further than what is recorded in his published works . In a letter to Simmel’s translator following the publication of The Morality of Law, Fuller explains that he is thrilled to see the extent to which he had “been struggling with the same kinds of problems that occupied Simmel”; indeed, even more than he had appreciated when developing his analysis of the ‘internal morality of law’ .45 But Fuller also indicates that the ‘necessities’ of his own subject matter compelled him ‘to stress something rather passed over in Simmel and his expositors’, namely, “that the realization of appropriate forms of sociation depends on the insight and purposive effort of the participants” .46 He continues: It is a concern with this aspect of “form” – that is, its dependence upon human insight and effort – that has led me throughout to speak of “the morality” of law . I know this language will alienate many, especially among sociologists, but I felt compelled to use it in order to convey the full force of my conviction about the nature of the problems with which I was dealing .47

Fuller’s personal annotated copies of The Morality of Law and Hart’s The Concept of Law held at Harvard Law School library are illuminating here . Fuller highlighted his own references to Simmel in The Morality of Law repeatedly, while his copy of Hart includes several annotations about there being ‘no acceptance in Hart’ and ‘no Simmel in Hart’ . 44 Fuller (footnote 17), 39, n . 1, referring to the translation of Simmel by Kurt H . Wolff, The Sociology of Georg Simmel (Simon and Schuster, 1950), 186–189 and 250–267 . Simmel’s point here is strikingly close to Fuller’s when he suggests that “the inner form of law brings it about that the law-giver, in giving the law, subordinates himself to it as a person, in the same way as all others”: 263; my emphasis . 45 Letter from Lon L Fuller to Kurt H . Wolff, December 30, 1963: The Papers of Lon L Fuller (Box 8, Folder 13), 1 46 Ibid . 47 Ibid ., 2; my italics 43

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This explanation from Fuller himself of what he had in mind by ‘form’, and how its moral dimension resides in its ‘dependence upon human insight and effort’, is highly illuminating . It makes clear that his key interest lay with the demands that animate the structure of legal authority: what possessing and exercising authority asks of ‘human insight and effort’ . For Fuller, we might therefore say, a condition of lawful authority is sustained not merely through the presence of an observably interactional structure, but through the conduct of appropriately framed and effortful relationships within that structure .48 This, I want to suggest, is why the language of ‘relationships’ is so suited to capturing what Fuller was trying to convey about the demands of the ‘internal morality of law’ . The idea obviously shares much in common with the idea of ‘reciprocity’ through which Fuller’s analysis of these demands in The Morality of Law was originally presented . Yet the fact that Fuller changed this vocabulary in the aftermath of the publication of that book is noteworthy .49 Influenced by his interest in Simmel’s thought, as well as by his turn towards sociology more generally, from the mid-1960s Fuller began to rely much more explicitly on the language of ‘interaction’ in the elaboration and defence of his jurisprudential position .50 Indeed, his late correspondence indicates that Fuller ultimately wanted to pursue an ‘interactional theory of law’ .51 Still, Fuller’s explanation in his letter to Simmel’s translator that he was most profoundly concerned to illuminate the dependence of the distinctive form of law upon ‘human insight and effort’, and that this is why he had chosen to frame this point through the language of ‘morality’, suggests that the term ‘interaction’ does not quite do the work that Fuller needed it to do . While ‘interaction’ might be descriptively on track, in so far as it speaks to a back and forth dynamic between agents, it is arguably not normatively sufficient to grasp the gravity of the demands towards which Fuller was gesturing . In particular, the idea of ‘interaction’ carries no apparent implication of the ideas of role and responsibility that were so crucial to Fuller’s own sense that his ‘internal morality of law’ articulated the demands of a role morality that must be fulfilled if a condition of legality is to arise . A vocabulary centred on ‘relationships’, I am therefore suggesting, gets us much closer to capturing these demands and their implications . Dwelling on the evocations of the term helps to consolidate this point . Relationships create a framework of and for expectations around the interactions that take place within their frame . In so doing, I was not aware of this archival material when I explained Fuller’s idea of ‘form’ in strikingly similar terms in Rundle (footnote 1), 9–10 . 49 I address Fuller’s many adventures with vocabulary throughout Rundle (footnote 1), but see especially Rundle (footnote 1), Chapter 8 . 50 For a longer treatment, see Rundle (footnote 5) . As is explained there, Fuller’s ‘sociological’ intentions also form the subject of much of his late correspondence over the period from 1968 to 1973 . 51 See, for example, Letter to Anthony Blackshield, February 12, 1973: The Papers of Lon L Fuller (Box 1, Folder 12) . For a longer discussion, see Rundle (footnote 5), 448–451 and 452–453 . 48

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relationships give status to their participants and render them answerable to its frame . Relationships also make their participants visible: to be in a relationship is to be in a relationship with someone, knowingly . There is also something about a relationship that relies on it being generated by its participants: the idea of a relationship being imposed seems not quite right . Moreover, talk of ‘relationships’ evokes a sense of commitment, and of the continuity of that commitment . These inferences resonate at multiple levels with the moral and behavioural responsibilities assigned to law’s agents in Fuller’s analysis of ‘the morality that makes law possible’ . Crucially for present purposes, these relational commitments can also be translated into concrete demands on the design and operation of the procedures, processes, and institutional forms through which the authority of law manifests in practice . It is to this point that I now turn . V.

Procedures, Processes and Institutional Forms Revisited

The idea that I want to develop in this section can be stated as follows . What it takes to bring a condition of lawful authority into existence is equally what it takes to keep that condition in existence . As the primary vehicle for relational contact between legal officials and legal subjects, procedures, processes and institutional forms provide the structure through which the authority of law directly touches upon those subject to it . The relational dynamics which underscore the possibility of the authority of law, and those which Fuller demands must be sustained within legal procedures, processes, and institutional forms are therefore be part of one picture . In Fuller’s jurisprudence it could not be otherwise . The idea that procedures, processes and institutional forms are burdened with the same relational demands that inform the creation of a condition of lawful authority in the first place has important implications for what it means to be a legal subject or a legal official within those procedures, processes and institutional forms . In Part III I suggested that, in its constitutive rather than presupposed aspect, Fuller’s conception of the person implicit in his ‘internal morality of law’ yields a distinctive species of agency that we might call ‘legal agency’ . As I there expressed it, being constituted by participation in a condition of law, this species of agency is generated – and only generated – by conditions supportive of it . So understood, legal agency can be associated with two different levels of a subject’s experience of a condition of law . First, there are the capacities and protections generated from a surrounding frame of the rule of law, broadly understood . Here, one’s experience of the distinctive kind of agency that is constituted by law might be felt less in direct connection with bearers of legal authority than in a sense of shared benefit from living among others within a political system framed by the subordination of all to the rule of law . The second level at which legal agency operates, however, is more specific .

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It is that which materialises and is made visible when a subject participates within the procedures, processes and institutional forms through which the authority of law is concretely expressed .52 Some might suggest that the significance of legal agency at this level lies in how it evidences respect for the dignity of the subject . Inspired by Fuller’s own association between dignity and observance of the principles of his ‘internal morality of law’,53 this is the idea promoted by the legal philosopher Jeremy Waldron in his analysis of how law ‘inherently promotes dignity’ .54 By presenting dignity as a ‘status concept’ that has to do with the ‘standing’ that a person has in society and in her dealings with others,55 Waldron is clearly alive to the relational context within which the experience of dignity arises .56 Still, even if respect for the dignity of the subject is undoubtedly an important element of Fuller’s jurisprudence generally and of his attention to procedures, processes and institutional forms specifically, more than attention to this idea alone is required to situate the importance of legal agency within the schema of Fuller’s thinking on the ‘internal morality of law’ . What must also be grasped are the important connections between legal agency and the surrounding context of authority which itself makes specific relational demands on the participation in procedures, processes and institutional forms of subjects and officials alike .57 Turning to that surrounding context of authority helps us to understand why procedures, processes and institutional forms were so central to Fuller’s jurisprudence, understood as a whole . If what it takes to bring a condition of lawful authority into existence is equally what it takes to keep it in existence, these relational demands must shape all interactions between legal officials and legal subjects . The dynamic between legal official and legal subject that is convened and maintained within procedures, processes and institutional forms must be not just respectful of, but productive of, the subject’s agency in a manner that could support foundational acceptance of the authority of law itself . It therefore follows that how the repository of authority engages with the subject within those procedures, processes and institutional forms will be crucial to whether a condition of legality is extant . The principle of Fuller’s ‘internal morality of law’ most

See also Rundle (footnote 1), 42 . Jeremy Waldron, How Law Protects Dignity, Cambridge Law Journal 71 (2012), 200–222 . Waldron relies especially on Fuller’s statement when elaborating the conception of the person inherent in the principles of the ‘internal morality of law’ that every departure from the principles of the internal morality of law “is an affront to man’s dignity as a responsible agent”: ibid ., 205–206 . 54 Ibid ., 203 55 Ibid ., 201 56 Ibid ., 203 57 I have elaborated the separable significance of the authority relationship to dignity-based theoretical justifications of the rules of procedural fairness in administrative law in Kristen Rundle, The stakes of procedural fairness: Reflections on the Australian position, Australian Journal of Administrative Law 23 (2016), 164–173 . 52 53

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readily associated with the actions of legal officials in the administration of law – the eighth principle of congruence between official action and declared rule – is of significance here . Once we grasp the larger context of authority within which this demand of congruence is situated, we can see that the principle addresses not only the integrity of the connection between how a legal norm is stated and how it is applied, but also the integrity of the wider authority relationship between the legal official and the legal subject . There is also something important to be learned about the practical demands Fuller placed upon relationships between legal officials and legal subjects in the distinction he came to draw between ‘law’ and ‘managerial direction’ .58 Formulated in response to Hart’s reading of the value of the principles of the ‘internal morality of law’, Fuller’s point was that Hart’s argument that observance of the principles is merely a morally-neutral aid to the efficacy of legal ends can only make sense if what is actually advanced by legal positivism is a conception of managerial direction rather than law . Elaborating this view by reference to how his principles of generality, non-retroactivity, and congruence between official action and declared rule have no place within a system of managerial direction, the nub of Fuller’s point was that – unlike a condition of law – managerial direction offers very little to the subordinate in terms of what she can securely demand of the attitude and actions of the superior .59 It is not hard to see how the distinction between law and managerial direction fits within the larger context of the Hart-Fuller debate, and especially with Fuller’s ongoing effort to push Hart to explain the phenomenon of ‘fidelity to law’ . Understanding the fidelities that managerial direction does not demand of the manager (but does of the law-giver or law-applier), and the fidelities that cannot plausibly attach to the position of the subject of a managerial order (but can plausibly attach to the position of the subject of a legal order), is another way of understanding the difference, at a relational level, between the two forms of ordering . We might therefore return here to the connection made in Fuller’s letter to Inagaki between the ‘ethical’ significance of procedure and the ‘morality of social role’ . The reading I would offer of that connection is this . As custodians of the authority of law in its concrete expression, legal officials are necessarily also the custodians of the procedures, processes and institutional forms through which lawful relationships of authority are made possible . A condition of law on Fuller’s conception demands that these governing relationships must be relationships in action and not merely in name . Thus, nothing short of active relational effort on the part of legal officials will be necessary if the procedures, processes and institutional forms through which the authority of law manifests are to claim and maintain their place within a condition of law .

58 59

See Fuller (footnote 36), 207–219 . See further Rundle (footnote 1), Chapter 5, especially 131–134 .

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VI.

Fuller’s Relationships and Contemporary Challenges of the Rule of Law

The foregoing arguments carry important implications for how we are to understand the idea of the ‘rule of law’ on Fuller’s conception . I want to suggest that he presents this idea as a practice of framing governing relationships through the authority of law . Being a practice, this state of affairs is necessarily something to be achieved rather than simply assumed . Indeed, it was because Fuller saw that achievement as fundamentally dependent on ‘human insight and effort’ that he was quick to recognise its fragility .60 His repeated challenge to Hart to explain whether his legal positivism allowed for the withdrawal of lawgiving power in the event of its abuse is just one example of Fuller’s effort to bring the task of achieving and maintaining a condition of legality to the attention of his fellow legal philosophers, and to insist that they account for this challenge within their ‘concepts’ of law .61 The question raised by conditions of contemporary government is how this challenge is to be met within the wide variety of procedures, processes and institutional forms through which conditions of the rule of law are now purportedly sustained . That there is indeed a question to ask here is apparent from certain trends that have come to feature in practices of contemporary government, in which the attenuation, if not severance, of the relational structure of official-subject interactions is becoming increasingly common . Indeed, some designs of government power arguably detach those who carry legal authority from any recognisable relationship with those who are ultimately subject to it . Some examples serve to illustrate the worry . The ‘contracting-out’ of government functions to private actors is now an established feature of governmental practice worldwide . Assessing what threats (if any) this practice poses for the rule of law is, however, a complex undertaking . What, if anything, does this practice change? In approaching this question it is important to recognise that contracting-out does not only involve private actors in the exercise of public authority . It specifically facilitates this involvement through the intervention of a bilateral legal form – contract – that operates to create obligations between the state and the contractor but not necessarily between the contractor and the subject . If we understand the rule of law as a practice of framing governing relationships through the authority of law, in which the intelligibility of the governing relationship as a relationship is central to the possibility of that authority, then there is something important to consider about the implications of at least some instances of contracting-out for the rule of law . From a relational point of view, there are two ways in which “I have insisted that law be viewed as a purposeful enterprise, dependent for its success on the energy, insight, intelligence and conscientiousness of those who conduct it, and fated, because of this dependence, to always fall somewhat short of a full attainment of its goals”: Fuller (footnote 17), 145 . 61 See especially ibid ., 137–140 . 60

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the position of the subject might change within this arrangement: first, in her at best contingent legal relationship to the contractor, and second, in the interruption to her relationship to the ultimate source of governing authority that results from the intervention of contract between them . The significance of the latter will obviously depend on the context . But one might expect this significance to be particularly great in settings which have historically been regarded as a core activity of government – such as those which involve the deprivation of liberty – and with respect to which considerations of legitimacy are especially important .62 Another example, again increasingly common, is the grant of extremely wide discretions within administrative decision-making structures . Discretion has, of course, long been a feature of the administration of government power in individual cases . It has equally long preoccupied legal scholars, who have sought to understand the significance of discretion, positively and negatively, to the rule of law .63 The worry arising in circumstances of contemporary government, however, is the emergence of discretions so wide that they effectively optionalise the possibility that a governing relationship between the decision-maker and the person subject to their authority will arise at all .64 Accompanying these kinds of inflated discretionary powers is often also seen a reduction in guarantees of procedural fairness: the opportunity to be heard, by the repository of authority, with respect to matters apt to affect the subject’s interests . Procedural fairness might serve many and indeed sometimes competing values . But what is surely undeniable about the opportunity to be heard is the acknowledgement of a decision-making relationship between the bearer and subject of authority that it reflects .65 The rising prevalence of automation in government decision-making might be seen as adding still further and different relational concerns to the mix . Of the many worries that might be raised here, the intelligibility of the subject’s relationship to the repos-

Different but also pressing considerations of legitimacy equally arise in relation to the outsourcing of government decision-making functions . 63 The features of administrative law do not mimic the features commonly associated with legislation and legislative governance . Using legislation to vest discretion in an official to make decisions about particular rights, interests or entitlements claimed by or owed to a subject contains little that is recognisable to the classic picture of a subject applying rules directly to her own conduct . Yet in so far as discretion is a feature of ‘administrative justice’, concerned with attending appropriately to the individual circumstances of the subject, it might be seen as especially promising from a relational perspective . But, crucially, this will depend entirely on the extent and quality of that relational dynamic . 64 An example from my own jurisdiction – Australia – illustrates this point . Alongside other regulatory domains, immigration legislation is increasingly replete not only with wide discretions to be exercised in the (undefined) ‘public interest’, but with discretions the exercise of which cannot be compelled by a court . These ‘non-compellable powers’ are designed to counter the presumption that if the legislature has reposed a discretion in an executive actor, there is an expectation that it will be exercised . In reversing this presumption, ‘non-compellable powers’ effectively optionalise the exercise of the power in accordance with the repository’s inclination to do so . The interested subject’s standing in the face of the discretion is contingent on the decision to consider exercising it; a decision that can be neither compelled nor reviewed . 65 See further Rundle (footnote 57) . 62

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itory of authority – which in many instances will be a computer rather than a human being – is an obvious one . Indeed, it is hard to see how in some circumstances of automation a relationship between repository and subject can arise at all . These and other features of contemporary government (purportedly) under the rule of law might have been unforeseen when Fuller developed his thinking on the normative demands of the ‘internal morality of law’ . Still, extrapolating from the previous analysis of Fuller’s attention to how a condition of law constitutes and sustains governing relationships framed by the authority of law, questions such as the following might be posed . How are these practices shaping the relationship between legal officials and legal subjects? Is the chosen legal frame for convening that relationship sustaining it as a relationship? Or is there something about the frame itself that is undermining that possibility? These questions provide a starting point for a new kind of inquiry into the relational dimensions of contemporary conditions of the rule of law . Three key ideas from Fuller’s jurisprudence are reflected in them . The first is the centrality of relationships . The second is the significance of the form of a relevant legal modality to the shape and fate of those relationships . The third is the possibility that certain legal forms will, for relational reasons, be unsuited to the contexts within which they might come to operate . The first and second points have been emphasised above . The third point takes its foundation from Fuller’s argument that the ‘modes of participation’ afforded to law’s agents lie at the heart of what makes a given form of ordering distinctive .66 Fuller ultimately saw these modes of participation to be constitutive not just to individual legal forms (legislation, contract, adjudication, and so forth) but to the possibility of presence of the rule of law itself . As he put the point in a speech on the rule of law in 1960, ‘[w]hen we move from a condition of anarchy or despotism toward something deserving of the name of “the rule of law”, one of the most important aspects of that transition lies in the fact that formal institutions are established guaranteeing to the members of the community some participation in the decisions by which their interests are affected .’67 The point I want to develop here is that Fuller’s highly original theoretical inquiry into the foundations of the suitability or misfit of different legal forms to different purposes and contexts is of direct importance to an examination and evaluation of contemporary conditions of the rule of law .68 Most relevantly for present purposes, this This language comes from Fuller’s famous study, “The Forms and Limits of Adjudication”, that was published posthumously: Harvard Law Review, 92 (1978), 353–409 . See further Rundle (footnote 1), Chapter 2 . Fuller’s archival papers make clear that he regarded the ‘forms and limits’ project to share essentially the same jurisprudential concerns as his writings on the ‘internal morality of law’ . 67 Fuller, lecture notes for ‘Adjudication and the Rule of Law’: The Papers of Lon L Fuller (Box 11, Folder 9), 16 68 See especially Fuller (footnote 29), alongside the unpublished essay ‘Means and Ends’ reproduced in Winston (footnote 29) . 66

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inquiry demands that we pay attention to the effect that relationships constitutive to a particular legal form might have on the wider relational context in which it will operate . Keeping this question in view is especially important when that wider relational context is one of public authority, a phenomenon which equally hinges on the quality of the relationships sustained within it . A development of the examples canvassed above helps to draw out the importance of this point . What consequences might the practice of contracting-out have for the authority relationship between a governing authority and its subjects? What concerns do very wide discretionary powers, reductions in procedural fairness, or the rising prevalence of automated decision-making raise for the agency of legal subjects in their relationship to that governing authority? These questions alert us to how the design and operation of the procedures, processes and institutional forms through which governing relationships are purportedly convened can undermine the possibility that these will be relational at all . If however the potential of Fuller’s jurisprudence with respect to such analyses is to be realised, some important shifts in how we think about its offering must be pursued . First, it is necessary to move away from the ‘checklist’ reading of the principles of the ‘internal morality of law’ has been ascendant since Fuller’s contribution to theorising the conditions for the rule of law was first recognised . On this reading, Fuller’s principles provide a model of eight rule of law ‘criteria’ that should be met in all cases . The appeal of this ‘checklist’ reading at an operational and evaluative level is understandable: a glance at the methodologies that inform many rule of law ‘transplantation’ and ‘measurement’ projects internationally makes that clear . This comes, however, at a cost . The problem with the ‘checklist’ reading is that it diverts attention from the much more important idea that Fuller sought to convey about the moral demands of the relationship between lawgiver and subject that are carried by the eight principles . That Fuller sought this orientation is evident not only in the relational vocabulary through which he repeatedly elaborated his ideas about the ‘internal morality of law’, but also in his argument that sometimes the rule of law might actually be better served by departures from rather than compliance with certain of his eight principles if to do so would serve the wider health of a condition of legality .69 This insight can find no place in a ‘checklist’ reading of the principles of the ‘internal morality of law’: indeed, it seems to

This point is made especially strongly by Fuller in his analysis of the principle of non-retroactivity . There he argues that a retroactive statute can in certain circumstances actually be an important curative measure in repairing the ‘various kinds of shipwreck’ in which a legal system might find itself . The complexity of the requirement of non-retroactivity thus arises from how and when to know when its breach represents a tolerable sacrifice of legality, as opposed to when such would be an abuse of the feature of prospectivity that is otherwise essential to the enterprise of governing through rules: Fuller (footnote 17), 53–54 . 69

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be a contradiction in terms . It makes perfect sense, however, when the wider frame of relational demands with which Fuller was concerned is brought to the foreground .70 Following this rejection of the ‘checklist’ reading we must then uncouple the demands of the ‘internal morality of law’ from their traditional and largely exclusive association with legislation . It is undeniable that Fuller elaborated his arguments about the ‘internal morality of law’ in association with the idea that law is ‘the enterprise of subjecting human conduct to the governance of rules’ .71 His eight principles thus have features particular to legislative rule, and especially to the generality of legislated rules .72 The argument I want to advance here, however, is that the legislation-based prescriptions of Fuller’s eight principles of the ‘internal morality of law’ are simply the most worked out account that he provided of ‘what kind of a job lawmaking is’ .73 The idea of the ‘internal morality of law’ is much larger: as an expression of role morality, its overarching concern is with what is necessary to convene and sustain a lawful relationship of authority between legal officials and legal subjects . There is thus no reason why these relational imperatives cannot and should not be translated to the full range of modalities through which governing relationships framed by the authority of law are convened and sustained . In sum, it is the governing relationship, not the modality that provides its vehicle, which must lead appraisals of contemporary conditions of the rule of law undertaken in a Fullerian vein .74 To my mind, this kind of development and application of Fuller’s thought offers a more fitting contemporary tribute to his contribution to theorising the conditions of the rule of law than the checklist-style applications of the eight principles of the ‘internal morality of law’ that are so often seen . But if it is impossible – or perhaps even unhelpful – to fully overcome the ‘checklist’ presentation of Fuller’s offering, we can still insist that it is attached to the right questions . That is, we might ask whether those seeking to apply any such checklist to a purported practice of the rule of law have their eye on the presence and health of the governing relationships that Fuller associated with the fulfilment of its apparent ‘criteria’ .

As I put the point in Rundle (footnote 1), 137: “Derogations from this or that principle might not always signal the kind of compromise that ought to concern us . Derogations from the quality of relationship between a lawgiver and legal subject that a legal system constitutes and maintains, however, will .” 71 Fuller (footnote 17), 96 72 The remaining seven principles are effectively functional implications of the demand of generality . 73 See footnote 26 . 74 Leighton McDonald has also urged the need to reconceive the idea of the rule of law away from emphases on ‘generality’ and ‘guidance’ if the ideal is to remain relevant to the contemporary regulatory state: Leighton McDonald, The Rule of Law in the ‘New Regulatory State’, Common Law World Review, 33 (2004), 197–221 . 70

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VII.

Conclusion

Much of my work on Fuller so far has been motivated by the view that his thought has been examined for too long through a lens that is out of focus . My turn to ‘form’ as a route to understanding his jurisprudence was prompted not only by noticing how and when Fuller himself engaged it,75 but also by a sense that illuminating his preoccupation with the form(s) of legal ordering would bring me closer to the larger frame of the concerns of his jurisprudence . The present analysis has sought to develop that larger frame still further . Attention to ‘Fuller’s relationships’, I have suggested, gives us a better chance than Fuller had in his own time to understand, and to apply, the demands of his vision of what a condition of legality is and must be: from the highest level of the relationship between the form of law and the possibility of its authority, to the nuts and bolts of the vehicles through which that condition shapes the agency of its officials and subjects alike . To conclude, then, we might notice how Fuller sought to bring his extended debate with Hart about the connections between law and morality to an end . The closing line of his ‘Reply to Critics’ sees Fuller appeal to future legal philosophers to ‘cease to be preoccupied with building “conceptual models” to represent legal phenomena’ and ‘turn instead to an analysis of the social processes that constitute the reality of law’ .76 The primary target of the appeal is clear: to Fuller, the subject matter of legal philosophy was not concepts but practices contingent on human effort . For present purposes, however, it is Fuller’s appeal to fellow legal philosophers to attend to how the ‘reality of law’ is brought about that invites reflection . Fuller’s complaint to his former Japanese student that his critics on both sides neglected ‘procedure, process, and institutional forms’, or treated them as ‘ethically neutral’, is of a piece with this appeal to legal philosophers to attend to ‘the social processes that constitute the reality of law’ . Yet in some ways the frustrations expressed in the Inagaki letter give us greater insight into the depth of Fuller’s preoccupation with this point, and the impasse it created between him and his critics, than we might find elsewhere . Because what that letter shows is the extent to which Fuller saw, but struggled to see grasped by others, that the fate of the relationships constitutive to a condition of law lies in the procedures, processes, and institutional forms through which they are carried . Dr . Kristen Rundle Melbourne Law School, The University of Melbourne VIC 3010, AUSTRALIA kristen .rundle@unimelb .edu .au

75 76

Most strikingly, in ‘The Forms and Limits of Adjudication’ (footnote 66) . Fuller (footnote 36), 242

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Part 2 Borders and Grounds of Democracy

The Borders of Law1 TETSU SAKURAI

Abstract

This article points out that legal and political “boundaries” between political communities remain critically important in the implementation of our basic rights, despite the rapid progress of globalization . I want to make this clear by introducing the idea of legal space, which remains indispensable for the implementation and protection of our rights to liberty and equality through due procedures . I will also emphasize the significance of paying attention not only to how the basic values should be actualized within specific legal spaces, but also to how boundaries between political communities even thwart the democratic values . Then, I will highlight the importance of the borders of law, which can be crucial for our project of advancing liberty and equality beyond national boundaries . Keywords: borders, statelessness, civic boundaries, legal space, nationalism, citizenship

Introduction

Let me begin this article with a well-known but shocking news story that spread quickly around the world in late 2015 . It concerned a three-year-old boy, Alan Kurdi, who drowned and was found dead on the beach near Bodrum, Turkey, on September 2, 2015 . He and his parents and brother were Syrian refugees, trying to reach Canada through Europe, after moving between various cities in Northern Syria to escape the

I am very grateful for all the comments and questions to the original version of this article read at the First IVR Japan International Conference on July 8, 2018 . This research was supported by the Core-to-Core Program (A: Advanced Research Networks) “Research on the Public Policies on Migration, Multiculturalization and Welfare for the Regeneration of Communities in European, Asian and Japanese Societies” and the Grant-in-Aid for Scientific Research (C) “Normative Justifiability and Theoretical implications of a Human Right to Democracy”, respectively funded by the Japan Society for the Promotion of Science . 1

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civil war and ISIL .2 His family were hoping to join their relatives, and Alan’s aunt in Canada had applied for refugee status on their behalf . However, the application had been rejected by the Canadian government .3 In the early hours of September 2, his family attempted to reach the Greek island of Kos in a small boat, but it capsized soon after leaving Bodrum . Alan’s father, Abdullah, was the only survivor from his family . Soon after the photograph of Alan lying dead on the beach was disseminated via social media and print, many European leaders, including French President François Hollande and British Prime Minister David Cameron, announced their deep sympathy for his death and agreed to create “a system that would … see 120,000 refugees relocated from Greece and Italy to other European nations” .4 My point here is not to describe in detail how Alan Kurdi’s death caused a dramatic uprising of public concern over the refugee crisis or to criticize the refugee policies of the European countries or Japan . However, it is critically important to note that, as Syrian Kurds, the Kurdi family had little chance of being granted asylum in third countries, particularly because “[f]or many years, Syria denied its Kurdish population citizenship and Kurds were regarded as stateless by the authorities” .5 On the other hand, because the family were stateless, Abdullah was not able to work legally in Turkey or lift his wife and children out of desperate poverty, which prompted his decision to cross the Mediterranean Sea on a small boat .6 This article aims to point out that legal and political “boundaries” between political communities remain critically important in the implementation of our basic rights, despite the rapid progress of globalization . I want to make this clear by introducing the idea of legal space, which remains indispensable for the implementation and protection of our rights to liberty and equality through due procedures . I will also emphasize the significance of paying attention not only to how the basic values, such as freedom, equality, and justice, should be actualized within specific legal spaces, but also to how boundaries between political communities work to promote or even thwart the basic values embraced by democratic societies . Then, I will highlight the importance of the borders of law, which have garnered less attention so far, but which can be crucial for our project of advancing liberty and equality beyond national boundaries . Helena Smith, Aylan Kurdi: friends and family fill in gaps behind harrowing images, the Guardian (3 September 2015) . https://www .theguardian .com/world/2015/sep/03/refugee-crisis-friends-and-family-fill-in-gaps-behind-harrowing-images 3 Laura King and Glen Johnson, Death of Syrian toddler throws global spotlight onto refugees crisis, LA Times (3 September 2015) . http://www .latimes .com/world/europe/la-fg-syria-refugee-toddler-drowned20150903-story .html 4 Patrick Kingsley, Stories of 2015: how Alan Kurdi‘s death changed the world, The Guardian (31 December 2015) . https://www .theguardian .com/world/2015/dec/31/alan-kurdi-death-canada-refugee-policy-syria-boy-beach-turkey-photo 5 Joel Gunter, Alan Kurdi death: A Syrian Kurdish family forced to flee, BBC News (4 September 2015) . https://www .bbc .com/news/world-europe-34141716 6 Kingsley (footnote 4) 2

The Borders of Law

1.

Boundaries, Civic and Territorial

No one is more aware of the difficulties in crossing national boundaries to resettle in a third country than are stateless people . Moreover, no philosopher has understood and felt the hardship and implications of being a stateless person more than Hannah Arendt, who was stateless for 18 years after being expelled to France by the Nazis . In The Origins of Totalitarianism, she outlined the historical circumstances that caused individuals to endure the adversity of statelessness in Western societies in the first half of the 20th century .7 As Arendt comments, prior to the mass expulsions of Jewish people, it had been understood that human rights were inalienable by definition because “they were supposed to be independent of all governments” .8 However, this inalienability of human rights seemed to be no use to the people, including Arendt, who were unexpectedly forced into statelessness, when no governments or institutions were sufficiently willing to protect the basic rights of these stateless people . Characteristically, the stateless people themselves willingly identified the loss of national rights with the loss of human rights . According to Arendt, “The more they were excluded from right in any form, the more they tended to look for a reintegration into a national, into their own national community” .9 In this sense, the stateless people in the early 20th century placed their trust in a national government as the only protector of their basic rights . The Kurdi family reminds us that stateless persons today, who desperately seek asylum to escape deprivation, are faced with the same situation as those stateless people in the early 20th century . Particularly in the wake of the Second World War and the Holocaust, fundamental human rights have increasingly come to be regarded as universal values, and it has become more and more imperative to locate the source and legitimacy of rights in the transnational, universalized order . On the other hand, sovereign states remain the central actors in implementing basic rights and providing redress to victims of rights infringements . It should be noted that people born as members of a national minority in a failed state10 such as Syria are destined to be deprived of the chance to enjoy their national rights, to say nothing of their human rights . In other words, they lack even the most basic measures to realize their own human rights . In this context, it is worth mentioning that Seyla Benhabib makes explicit two paradoxes of democratic legitimacy in her great work, The Rights of Others . The first paradox Hannah Arendt, The Origins of Totalitarianism, 1951; Natalie Oman, Hannah Arendt’s “Right to Have Rights”: A Philosophical Context for Human Security, Journal of Human Rights 9 (2010), 279–302 8 Arendt (footnote 7), 291 9 Ibid ., 292 10 Alfoz Tanjour, a Syrian film director, who depicted Syria’s hopeless current situation in a half-documentary film, A Memory in Khaki, in 2016 informed me, during a Skype interview from Vienna in June 2018, that he could not conceive of any solution to this tragic situation because the political future of Syria no longer rested in the hands of the Syrian people . 7

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is a rather familiar one that relates to the tension between universal human rights and “the actual enactments of the democratic people” .11 Benhabib points out that democratic rule ideally presupposes that “all members of a sovereign body are to be respected as [equal] bearers of human rights” .12 Yet, there is always a risk that the will of “a particular civic community” can infringe on universal human rights, which is often labeled as “the conflict between liberalism and democracy” .13 However, I want to focus here on another, less familiar paradox of democratic legitimacy that Benhabib notes, which is that “every act of self-legislation is also an act of self-constitution” .14 To put this another way, when a self-governing community carries out an act of legislation, it should also define the community itself by drawing its boundaries and excluding a certain range of the population that does not belong to it . This is an issue that David Miller referred to as democracy’s “boundary problem,” that is, the problem of deciding who should be included in the demos or constituency when democratic decisions are taken . According to Miller, it is clear that this problem cannot be solved by appeal to democratic procedure .15 I wonder if Benhabib herself considers that the “boundary problem” in this sense is a real problem to be solved . The fact is, when a community creates a democratic constitution and agrees to bind itself by its own legislation, the community, or “we, the people,” must necessarily define itself by drawing its boundaries .16 In the sense that the political community can never set out to govern itself without its self-constitution, it is a paradox, not a problem . In fact, democracies require borders because self-governance is exercised in the name of some specific constituency and it binds that constituency alone .17 In other words, the consociates of a democratic body are considered to be both the author of the laws and subject to them, and the legislators must determine who the addressees of the laws are at the time of legislation . This means that republican equality, i . e ., a regime of claims to equal rights between citizens, should essentially be distinguished from universal moral equality . According to Benhabib, the paradox of democratic self-determination leads the political community not only to self-constitution but to exclusion because the republican ark of equality will “always include some and exclude others” .18 It is important to note that these boundaries between political communities are territorial as well as civic . The sovereign community defines its membership in civic terms in two ways . First, it distinguishes people who enjoy its full membership rights from those who hold “second-class citizenship status,” such as, before the implementation of universal suffrage, women and unpropertied males . In this context, however, anoth11 12 13 14 15 16 17 18

Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens, 2004, 44 Ibid ., 43 Ibid ., 44 Ibid ., 45 David Miller, Democracy’s Domain, Philosophy & Public Affairs 37 (2009), 204 Benhabib (footnote 11), 45 Ibid . Ibid ., 66

The Borders of Law

er category of persons who are excluded from the full membership is more important, that is, foreigners and aliens “amidst the democratic people,” who “do not possess the requisite identity criteria through which the people defines itself ” .19 It is clear that the rights and status of foreigners and aliens are in a murky situation, tempered both by respect for human rights and by international customary law . On the other hand, the sovereign body must also define itself territorially because “[t]he will of the democratic sovereignty can extend only over the territory under its jurisdiction .” National governments demarcate their territorial borders between them to set a limit on their sovereignty and exercise comprehensive control at the border over foreign nationals entering into, and departing from, the territory .20 In this context, Benhabib comments impressively that “Empires have frontiers, while democracies have borders” .21 As demonstrated by the Alan Kurdi case, the political importance of territorial borders has drawn much attention, both theoretically and practically, because every sovereign state is currently facing the challenge of having to handle the migrants who are attempting to cross its borders . Western countries in particular are confronted with a dilemma between the widely held values of basic human rights and the principle of national sovereignty . Although no one can seriously question the universal value of freedom of movement, the huge influx of immigrants into the European Union (EU) in recent years has impressed the unwaning significance of national borders22 . 2.

Law’s Spatiality

The contemporary significance of territorial boundaries draws our attention to the problem of law’s spatiality . One of the classic cases focusing on the spatiality of law was the Treaty of Amsterdam, adopted by the European Council in 1997, which aimed to “maintain and develop the [European] Union as an area of freedom, security and

Ibid ., 46–47 In relation to territorial boundaries, Immanuel Kant used the “common possession of the surface of the Earth” as a justification for the right of hospitality (Wirtbarkeit), which is “the claim of a stranger entering foreign territory to be treated by its owner without hostility .” Kant vindicated the right of hospitality, or “the right of temporary sojourn” (Besuchsrecht), as a right that “belongs to all humanity in virtue of our common right of possession (das Recht des gemeinschaftlichen Besitzes) on the surface of the Earth on which, as it is a globe, we cannot be infinitely scattered, and must in the end reconcile ourselves to existence side by side” (Immanuel Kant, Zum Ewigen Frieden, Kant’s gesammelte Schriften, hrsg . von der Königlich Preußischen Akademie der Wissenschaften, Bd .4, 1903, 138) . It is apparent from this passage that Kant considers that the common possession of the surface of the Earth serves as a decisive justification for the right of hospitality . 21 Benhabib (footnote 11), 45 22 The philosophical grounds for the right to control immigration, which contemporary liberal democratic countries have taken for granted, ought to be examined more closely . This subject will be left to another article in future . 19 20

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justice” .23 As is well known, “the area of freedom, security and justice” (hereafter AFSJ) is a collection of policies, ranging from border control to judicial cooperation, that intend to ensure the free movement of persons, a high level of legal protection and other rights to citizens of the EU . In 1998, the European Commission outlined an action plan to implement the idea of the AFSJ and elaborated further on the idea of the EU as a legal space . A passage of the Commission’s Communication of 1998 summarizes the idea in a succinct manner: The concept enshrines at European Union level the essence of what we derive from our democratic traditions and what we understand by the rule of law . The common values underlining the objective of an area of freedom, security and justice are indeed longstanding principles of the modern democracies of the European Union . The challenge set out by the Amsterdam Treaty is not to reinvent democracy and the rule of law but to allow citizens to enjoy their long-standing democracies in common .24

This passage characteristically shows that these three values and their close correlation constitute the very core of democracy and the rule of law . However, the point that I want to focus on here is that the concept of the AFSJ represents the legal order of the EU as a sharply bounded space imbued with democracy and the rule of law . This clearly implies that there is an “outside” of the AFSJ, where you might not find or invoke this triad of values . In other words, as far as the AFSJ is a legal place and the place is what makes possible all claims to freedom, security, and justice by EU citizens, does not this undermine the very same claims from those outside that space by excluding them? Does not the exclusion that gives shape to the EU’s territorial unity also leave “servitude, insecurity, and injustice” to stand?25 Hannah Arendt foresaw these serious questions that are necessarily raised today by the concept of the AFSJ . At the very end of On Revolution, she stated: Freedom, whenever it existed as a tangible reality, has always been spatially limited . This is especially clear for the greatest and most elementary of all negative liberties, the freedom of movement; the borders of national territory or the walls of the city-state comprehended and protected a space in which men could move freely . … What is true for freedom of movement is, to a large extent, valid for freedom in general . Freedom in a positive sense is possible only among equals, and equality itself is by no means a universally valid principle but, again, applicable only with limitations and even within spatial limits .26

Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Office for Official Publications of the European Communities, 1997, art . 1, at 8; my italics 24 European Commission, Towards an Area of Freedom, Security and Justice . COM (1998) 459, 1 25 Hans Lindahl, Finding a Place for Freedom, Security and Justice: the European Union’s Claim to Territorial Unity, European Law Review 29 (2004), 462 26 Hannah Arendt, On Revolution, 1963, 279 23

The Borders of Law

Arendt describes beautifully the strict spatiality of the liberties and equality and the essence of a legal space, which literally means that “a legal order is perforce bounded in space” .27 In other words, we can regard ourselves, and be regarded as being free and equal among ourselves, only as far as we are embraced by the borders that are literally the bounds of law . Admittedly, Ulrich Beck describes the globalization of our contemporaries’ biographies as a “[t]ransnational place polygamy,” that is, “marriage to several places at once, belonging to different worlds .” According to Beck, because our own life is “no longer tied to a particular space,” “[t]he multiple location or transnationality of individual biographies … is a further reason why national sovereignty is being undermined” .28 The critical consequences of the increasingly close connection of our life to multiple places in the contemporary world are not only the decline of national communities but also the decoupling of place with community or society . Globalization has thus caused a “deterritorialization of the social,” which means that our social spaces and communities have already crossed national boundaries . In the case of the European project, it is obvious that “the borders between the Member States of the Union forfeit their exclusive character”,29 and “the Union shall offer its citizens an area of freedom, security and justice without internal frontiers” as Article 3 (2) of the Treaty on the European Union lays down (my italics) . However, even Beck denies the prospect that globalization brings with it the end of the national state and, therefore, of democracy and puts forward his new vision of “the transnational state” as a possible response to globalization . According to Beck, “the (national) state is not only antiquated but also indispensable–both to guarantee internal and geo-politics, basic political rights, etc ., and to give political shape and transnational regulation to the process of globalization” .30 Whereas Beck places his hope in “strong states” that he calls transnational states, which make “globality the irrevocable foundation of political thought and action”,31 Hans Lindahl straightforwardly acknowledges the connection between place and community, emphasizing that “a territory appears as the community’s own place” from the perspective of a member of a (national) community .32 Lindahl convincingly advocates for his Arendtian approach to the close relation between place and political community: [L]egal place cannot be understood independently of collective identity . Legal communities are never simply located somewhere in space, like, say, a boulder lying in a field . A community must–literally–find a place in a continuous process of relating to space, even in those com-

27 28 29 30 31 32

Lindahl (footnote 25), 263 Ulrich Beck, What Is Globalization? 2000, 73–74; my italics Lindahl (footnote 25), 464 Beck (footnote 28), 108 Ibid ., 110 Lindahl (footnote 25), 465

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paratively recent cases, historically speaking, when its external borders are cartographically demarcated and stabilised . … In other words, part of what it means to be a community is to have to continuously reinterpret the claim to an own place .33

Here, Lindahl precisely points out that a political community must have a stable, reflexive relation to its own legal place to develop and sustain the collective identity of its members34 . To put it another way, the territory of a community should be strictly bounded so that it may have a common place, based on shared political values, in which its full members are granted a set of basic liberties and equality . 3.

The Divide Brought About by Globalization

As noted above, although Beck regards “strong” national states as indispensable to address the serious problems to which globalization gives rise, he also recognizes that the “deterritorialization of the social” is one of the irrevocable consequences of globalization that we must face today . It is undeniable that a neutralization of temporal/spatial distance by current technology gives us an ability to transcend the national boundaries and connect to various places as we wish . However, a pressing matter that we should attend to in this context is whether all social strata can enjoy the “end of geography,” that is, the freedom of movement across borders . Zygmunt Bauman definitely responds with a “no” to this critical question . He denies that the high mobility provided by new technologies benefits all members of contemporary society . On the contrary, he argues that globalization creates a new type of divide between the elites, who transcend every kind of boundary without effort, and the rest of society, who are tied to territoriality . In other words, “[a]ll of us are doomed to the life of choices, but not all of us have the means to be choosers .” It is the difference in people’s mobility, “their freedom to choose where to be,” that separates the elites and the rest of contemporary society .35 When we recall the fate of the Kurdi family, referred to in my introduction, we should take note of the serious divide that globalization incessantly produces, that is, “the first world” of “the globally mobile” and “the second world” of “the locally tied, of those barred from moving and thus bound to bear passively whatever change” may be brought about in the locality .36 Moreover, the territoriality imposed on the non-elites is even more serious because, in the new world of high speed, “neither the locality,

Ibid .; italics original It is in this sense that Walzer points out that “[n]ations look for countries because in some deep sense they already have countries: the link between people and land is a crucial feature of national identity” (Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality, 1983, 44) . 35 Zygmunt Bauman, Globalization: The Human Consequences, 1998, 86 36 Ibid ., 88 33 34

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nor the localized population has much in common with the ‘local community’” any more .37 If the non-elite residents of the second world lose their living quarters within their local community, many of them can easily turn into “displaced people” . Returning to the implementation of human rights, it is obvious that most of the contemporary stateless people become trapped in what Bauman refers to as the second world and are blocked by the high walls built of immigration controls . If the stateless people are prevented from obtaining a decent citizenship of any sovereign state, they have, by definition, no implementer of their human rights . This predicament makes it almost pointless for them to believe in the fulfillment of their basic rights . Again, it was Hannah Arendt who insisted on the pragmatic meaninglessness of abstract human rights confronting the stateless persons . According to Arendt, Edmund Burke was right when he criticized the idea of human rights as a meaningless abstraction: Not only did loss of national rights in all instances entail the loss of human rights; the restoration of human rights, as the recent example of the State of Israel proves, has been achieved so far only through the restoration or the establishment of national rights . The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships–except that they were still human .38

From the perspective of stateless people, the national community is obviously the only source of their human rights . In other words, it is essential for any human beings to be accepted into, and protected under, a stable legal space, constructed by a sovereign state or by regional treaties for the enduring fulfillment of their basic rights and equality . Arendt is correct when she points out that equality is simply an artifact of the public sphere that is based on the law of equality, whereas the private sphere is inevitably characterized by the differences and uniqueness of each one of us . In this sense, equality is simply a creation of a civilized society: Equality, in contrast to all that is involved in mere existence, is not given to us, but is the result of human organization insofar as it is guided by the principle of justice . We are not born equal; we become equal as a member of a group on the strength of our decision to guarantee ourselves mutually equal rights .39

Here, Arendt makes it explicit that the republican equality is totally different from universal moral equality .40 As a prime example, Article 1 of the Universal Declaration of Human Rights claims the latter when it states, “All human beings are born free and 37 38 39 40

Ibid ., 24 Arendt (footnote 7), 299 Arendt (footnote 7), 301; my italics Benhabib (footnote 11), 66

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equal in dignity and rights .” However, particularly from the viewpoint of the stateless people, our legal equality is always the equality for members of the civic community that protects the same rights of each member by their collective decision . Incidentally, Arendt argues that the artificiality of civic equality is one of the main causes of our deep-seated wariness over, and even hostility toward, “foreigners .” From the perspective of this once stateless Jew, highly organized political communities, such as modern nation-states, often insist on ethnic homogeneity and “hope to eliminate as far as possible those natural and always present differences and differentiations which by themselves arouse dumb hatred, mistrust, and discrimination because they indicate all too clearly those spheres where men cannot act and change at will, i . e ., the limitations of the human artifice” .41 According to Arendt, what we now usually refer to as racism is based more or less on our automatic fear and anxiety that innate or acquired differences that non-nationals show in the public sphere might threaten the artificial and, thus, fragile sense of equality among citizens . In other words, our deep-rooted tendency to beware of the natural and inerasable differences of the “foreigners” attests to the artificiality of our republican equality . 4.

“The Modernists without a Universalizing Project”

I do not want to dwell on controversies over the causes of extensive racist reactions here . The issue I want to raise in this context is whether it is ever consistent to oppose the project to promote and even universalize the modern legal values, such as human rights to freedom and equality, while embracing these basic values in general terms . If equality among human beings is nothing but an artifact of human action and, in particular, of a specific political community, then the way we construct the boundaries between legal places has critically important implications for whether one can enjoy these basic rights . In this sense, this fundamental question straightforwardly relates to our perception of the borders of law . Undoubtedly, it is not only Bauman who has noticed a slow development of our concern about people’s human rights and welfare situations beyond national borders despite the recent progress of globalization . According to Bauman, what is happening now is “the constriction of that realm of moral obligations that we are ready to admit, take responsibility for, and accept as the object of our constant, daily attention and remedial action … in stark opposition to the steadily expanding space of human interdependence” .42 Although we do not generally object to the active cross-border movements of capital, information, and products, we are likely to be very sensitive to

41 42

Arendt (footnote 7), 301; my italics Zygmunt Bauman, Strangers at Our Door, 2016, 80

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an extension of our moral obligations, not to speak of our legal obligations, beyond the national boundaries . We all know that a harrowing tragedy for asylum seekers like the Kurdi family will cause a temporary outburst of sympathy and the political leaders involved will be “shocked into forming more compassionate policies” toward them .43 However, Bauman urges that this rise of public attention should not be allowed to wane quickly, as we witnessed in the aftermath of Alan’s death . In other words, our attention to the fate of the stateless migrants should last “not only for the duration of the notoriously short-lived carnivalesque explosions of solidarity and care that are triggered by media images of successive spectacular tragedies in the migrants’ unending saga” .44 How should we address our deep-rooted tendency to focus on, and prioritize, the welfare and security of people similar to us within borders? If we really believe in the universal values of freedom, equality, and other basic rights, we have no other alternative than to be committed to the project of further advancing these values and the institutions that implement them . This is why Bauman argues that “[w]hat is … principally avoidable (and so, from the ethical point of view, needs to be by all means averted and eschewed) is the common tendency for human societies to set limits […] on the aggregate of human creatures to whose treatment moral responsibilities must be applied” .45 Although we are not saints who can accept an absolute and unlimited responsibility for the welfare of all others, we can, and morally should, fight against our tendency to look away from (moral) responsibility for others beyond national borders . This is what we should do if we really believe in, and are committed to, the respect and protection of basic rights such as freedom and equality as being universally valid . 5.

The Primacy of Civic Boundaries

As I mentioned above, it is undeniable that modern technology and its concomitant, globalization, are producing a serious social divide between the first world of “the global mobile” and the second world of “the locally tied .” On the one hand, particularly because of consumerism and deregulation, business and political elites and intellectuals are living in “the increasingly cosmopolitan, extraterritorial world .” On the other hand, the inhabitants of the second world are facing “the walls built of migration controls, of residence laws and [even] of ‘clean streets’ and ‘zero tolerance’ policies” .46 According to Bauman, because the residents of the two worlds necessarily have “two

Patrick Kingsley, The death of Alan Kurdi: one year on, compassion towards refugees fades, The Guardian (2 September 2016), https://www .theguardian .com/world/2016/sep/01/alan-kurdi-death-one-yearon-compassion-towards-refugees-fades 44 Bauman (footnote 42), 80 45 Ibid ., 82 46 Bauman (footnote 35), 89 43

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sharply different perceptions of the world, of the world’s ills, and of the ways to repair the ills,” globalization is destined to bring about an “age of an almost complete communication breakdown between the learned elites and the populus” .47 This is a rather sad diagnosis by Bauman of the contemporary polarized world if the first world really does involve “the modernists without a universalizing project”,48 who have nothing to say to the second world . I believe that we should pause here and ask if, in reality, people can consistently be “the modernists without a universalizing project,” who will enjoy the modern values of freedom and equality without little hesitation, on the one hand, yet pay little attention to universalizing these values beyond political borders, on the other . My misgiving stems from the belief that the concept of universalization was, and still is, at least philosophically, a product of “the modern intellect’s ambitions”49 to make a universal order supported by the modern values on a global scale . This serious doubt leads to a reconsideration of the two kinds of borders between political communities, that is, territorial boundaries and civic ones . Even contemporary political leaders generally seek to draw domestic public attention to the protection, and even expansion, of the territorial boundaries of their own community to stabilize and strengthen their power . However, when we recall the critical importance of legal space to ensure the basic liberties and equality of individuals, I argue that we should give much more weight to the civic boundaries than to the territorial ones . One of the main reasons for this priority is that, strictly speaking, no territorial boundaries exist in a physical sense . By this, I do not mean that there are no tangible walls or fences between any two neighboring countries but that, if no artificial barriers had been constructed at the edge of a territory, there would be no visible indication of boundaries, which is obvious when we think of the territorial boundaries on the water . Territorial borders between political communities would have meaning if and only if authorized officers could exclusively control entry and departure at the gates set in a wall between the two communities . In this sense, territorial boundaries are simply a social artifact by the involved communities in the same way as civic boundaries are . When the US President Donald Trump made it a signature promise of his election campaign to construct or fortify, to be exact, the border walls between the US and Mexico at the neighbor’s expense, he did not primarily intend to build physically higher and thicker border walls there, but meant to literally toughen up the immigration control structure of the US . To put it differently, the civic boundaries exist only on a normative level of reasoning, whereby authorized officials, such as immigration inspectors, are expected automatically to divide the passers at some border checkpoints into the predetermined categories such as citizens, travelers, foreign residents, and undocumented migrants .

47 48 49

Ibid ., 99–102; italics original Ibid ., 102 Ibid ., 59

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Boundaries are not necessarily drawn on the ground, but between specific persons, some of whom desperately seek to cross over to the other side . In this sense, territorial boundaries are much less significant than civic boundaries on a normative level, and are nothing more than reified, if not feigned, civic boundaries . I want to call this asymmetry between the civic and territorial borders “the primacy of civic boundaries .” One of the important normative corollaries of this primacy is that borders between national (or regional) communities are nothing but the borders of law . In other words, national boundaries are “the limits of legal spaces,” over which many migrants constantly seek to cross from a less liberal, deteriorating space to a more liberal, thriving one .50 6.

National Membership and the Shape of the Community

It is useful to examine Michael Walzer’s theory on national membership because it clearly suggests the need to pay considerable attention to the significance of legal space and the primacy of civil boundaries .51 Walzer’s ideas on the legitimacy of immigration control stand in clear contrast to Jürgen Habermas’s radically liberal position, which permits only exceptional restrictions when an unrestricted immigration policy would give rise to large-scale confusion of the labor market and the breakdown of social order . Walzer emphatically justifies the restrictions on immigration rights from his communitarian perspective, based on the idea that “the right of immigration is limited by the right of a political community to preserve the integrity of its form of life” .52 For Walzer, who believes that “[a]dmission and exclusion are at the core of communal independence,” the right to choose an admission policy “suggest[s] the deepest meaning of self-determination” .53 In other words, it is crucial for a political community to reserve the rights of admission and exclusion because this is an essential means to preserve the shape of the community and the residents’ common life . Walzer argues for a political community’s right to control admission at its territorial boundaries because, without this sovereign right, “there could not be communities of character” .54

In the case of the EU, it is apparent that the EU as a regional community constitutes a distinct legal space that is encompassed by the borders of law . 51 Walzer (footnote 34), 31–63 52 Jürgen Habermas, Between Facts and Norms, 1996, 513; my italics 53 Walzer (footnote 34), 62 54 Ibid .; italics original . It is important to note that the central value that Walzer defends here is the legitimacy of democracy because he sees the right to uphold and defend a particular form of life from erosion as at the core of the rights of citizens to self-determination . This means that it is essential for a human population to retain the right to preserve the integrity of its particular cultural identity to function stably as a self-governing society . For the details, see Tetsu Sakurai, Is a Human Right to Democracy Justifiable? Philosophy Study 3 (2013), 983–96 . 50

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On the other hand, regarding the naturalization of various foreign residents, or bestowal on them of full membership of the host country, Walzer insists on the equal treatment of foreigners who are already making a living in the host society . Naturalization, by contrast [to immigration], is entirely constrained; every new migrant, every refugee taken in, every resident and worker must be offered the opportunities of citizenship . If the community is so radically divided that a single citizenship is impossible, then its territory must be divided, too, before the rights of admission and exclusion can be exercised .55

Walzer clearly argues that the democratic government should allow citizenship to all kinds of foreign residents at home, possibly excepting illegal immigrants . It is obvious that he supports the granting of citizenship even to “guest workers” who have “come (and generally stay for as long as they are allowed) because they need the work,” let alone recognized refugees . However, although he determinedly argues that guest workers “ought to be able to regard themselves as potential or future participants in politics as well,” he seems quite unconcerned with whether and how the guest workers with pecuniary motives will contribute to maintaining the shape of the community and its members’ common life .56 His indifference to this issue makes us uneasy . On the one hand, Walzer argues for the sovereign right of a political community to control admission and exclusion on the territorial borders to preserve “communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life .” However, on the other hand, he opposes the unequal treatment of citizens and foreign residents on the civic borders by the democratic government . He never allows this treatment because “the rule of citizens over non-citizens, of members over strangers, is probably the most common form of tyranny in human history” .57 Can a contemporary political community claim the right of immigration control to preserve its community of character and, at the same time, advocate granting a full membership to foreign nationals within its territory, based on the idea of legal and political equality? Walzer himself seems to face this agonizing dilemma when he acknowledges the obligation of liberal states to grant asylum to refugees persecuted and oppressed by some other country because they are like us ideologically or ethnically: But if this is true, why stop with asylum? Why be concerned with only men and women actually on our territory who ask to remain, and not with men and women oppressed in their own countries who ask to come in? Why mark off the lucky or the aggressive, who have

55 56 57

Walzer (footnote 34), 62 Ibid ., 59–60 Ibid ., 62

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somehow managed to make their way across our borders, from all others? Once again, I don’t have an adequate answer to these questions .58

In my view, Walzer noticed a discrepancy in his own attitudes toward various foreign residents in his country and toward asylum seekers waiting to cross the territorial borders . He must have differentiated (knowingly or unknowingly) between the two kinds of borders, territorial and civic, and allocated to them two different criteria regarding whether to admit people beyond the boundaries . He seems to have been confused about which criterion should be given high priority . Again, I am more inclined to support Walzer’s more egalitarian criterion to determine admission and exclusion of foreign nationals because his assumption that the “distinctiveness of cultures and groups depends upon closure” is wrong . What is more commonly the case is that closure of borders has been and still is based on the distinctiveness of cultures and groups . Starting with the premise that “distance” is not an objective, impersonal, physical given, but a social product, Bauman makes it clear that distance “varies depending on the speed with which it may be overcome (and, in a monetary economy, on the cost involved in the attainment of that speed)” .59 In other words, distance is a function of the technological development of the society and the cost of using the contemporary transport technology . In this context, it is quite suggestive that Bauman reduces the formation and maintenance of our collective identities to a secondary effect of “distance” as a social construct: Looking back in history, … the natural and the artificial borders of territorial units, separate identities of populations and Kulturkreise [culture group], as well as the distinction between “inside” and “outside” were in their essence merely the conceptual derivatives, or the material sediments/artifices of “speed limits”–or, more generally, of the time-and-cost constraints imposed on freedom of movement .60

Bauman argues that our collective identities and the cultural groups, as well as various territorial borders, which involve “inside” and “outside,” have been only the consequences of the “speed limit” that the contemporary technology and economic disparities necessarily impose on people’s movements . This, in turn, implies that closure of boundaries is not a cause, but rather an effect, of the constitution and separation of our national identities and the cultural regions that we cherish . In this sense, Walzer’s defense of a political community’s right to control admission on grounds of preserving its distinctive shape and character is not very well founded . Surely, he needs another good reason to justify the right of the political community to control admission and exclusion . 58 59 60

Ibid ., 51 Bauman (footnote 35), 12 Ibid .

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Conclusion

Finally, let me touch upon Benedict Anderson’s valuable insight into the origin of racialist dreams . Whereas Thomas Nairn argues that “all nationalism is both healthy and morbid,” as both aspects are “inscribed in its genetic code from the start,” and that racism and anti-Semitism stem from nationalism, Anderson emphasizes a fundamental difference between nationalism and racism .61 Anderson formulates this marked contrast in his classic monograph Imagined Communities as follows: “The fact of the matter is that nationalism thinks in terms of historical destinies, while racism dreams of eternal contaminations, transmitted from the origins of time through an endless sequence of loathsome copulations: outside history” .62 This comparison is quite interesting because, on the one hand, Anderson attributes nationalism to a people’s ceaseless and largely political effort to remember/forget their common history, such as violent deaths and fratricidal wars of their ancestors; on the other hand, he regards racism as a discriminatory attitude toward different bloodlines of human populations . In other words, nationalism is a product of collectively imagining a sovereign and limited community based on a shared history, whereas racism is a collective fantasy built on a biological dream of a pure and noble pedigree . However, what matters to us here is that Anderson not only emphasizes a difference in category between nationalism and racism but also flatly denies the responsibility of nationalism for the occurrence and persistence of racism . In this context, it is very suggestive to us that he says: “The dreams of racism actually have their origin in ideologies of class, rather than in those of nation: above all in claims to divinity among rulers and to “blue” or “white” blood and “breeding” among aristocracies” .63 This is a revealing idea because Anderson points out that racism has not arisen across the national territories but within them . To use Anderson’s words, racism and anti-Semitism “justify not so much foreign wars as domestic repression and domination” .64 Racism has manifested itself within political communities between citizens who have the full membership and non-citizens, particularly foreign residents, who are excluded from the social mainstream . This is very relevant to us because, historically, this selective mechanism has worked just where various “civic boundaries” are drawn . As I pointed out above, civic boundaries have denied full citizenship rights, not only to perceived “second-class” citizens such as women, non-propertied males, indigenous peoples, and slaves but also to foreigners and subordinate peoples within the host society . What the social mainstream has done on civic boundaries is an act of self-constitution of a dem-

Tom Nairn, The Break-up of Britain: Crisis and Neo-nationalism, 2015, 335; Benedict Anderson, Imagined Communities; Reflections on the Origin and Spread of Nationalism . 2nd ed ., 2006 62 Anderson (footnote 61), 149 63 Ibid .; italics original 64 Ibid ., 150 61

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ocratic body, which defines its specific constituency and prepares a legal prerequisite for the democratic rule . At the same time, it must be admitted that civic boundaries have often worked as both a cause and a consequence of the exclusion based on class ideology within a society . To say the least, this is what the ruling classes have intended to do with civic boundaries . If this is the case, it gives us a stronger reason to pay heed to the political implications of various civic boundaries . As I noted above, well-administered legal space, whether national or regional, is a prerequisite for us to be secured individual liberties and equalities . The way that we construct and administer civic boundaries determines the membership of the political community and thereby forms the shape and limits of our legal space, which guarantees the basic rights and interests only to its members within this space . Undoubtedly, stateless people situated in the middle of war or political confusion have the greatest understanding and experience of the real authority and power of civic boundaries . However, we must also note that, historically, civic boundaries are the gates where the passers are most likely to face unreasonable discrimination, racial prejudice, and the ideology of class . In fact, I am not personally inclined to make a case for open borders . However, as the way we build and control civic boundaries decides the bounds of each legal space, there is no doubt that civic boundaries have a key role in constituting the borders of law, which, as yet, have received little attention but are particularly important when we are promoting a project of universalizing the basic values of contemporary democracies . TETSU SAKURAI Graduate School of Intercultural Studies, Kobe University, 1-2-1 Tsurukabuto, Nada, Kobe 657–8501, Japan, sakurait@kobe-u .ac .jp

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Drawing National Boundaries for Global Governance HIROHIDE TAKIKAWA

Abstract

This paper shows that it is morally permissible to draw national boundaries to achieve a better institutional arrangement for global justice . Arguing against cosmopolitans, who claim that we ought not to draw national boundaries because it might arouse more conflict, I defend the assigned responsibility model, which states that drawing boundaries is an effective way to discharge our moral duty of justice . Then, I show that it is important to draw national boundaries territorially, but not temporally, elementarily, or personally, to make them mutually exclusive and collectively exhaustive . Finally, I argue that it is useful to draw national boundaries between citizens and foreigners to ensure that each territory is governed in the right way and then suggest a practical reason why brain drain will be limited based on the assigned responsibility model . borders, global governance, assigned responsibility, territory, mutually exclusive and collectively exhaustive, brain drain Keywords:

Introduction

Suppose a god were to examine the best arrangement for global governance . Would he/she introduce national boundaries? Cosmopolitans might hold that the god ought not to include them because borders create sharp and inevitable conflicts between countries . I believe that the god ought to include borders and should do so, saying: “divide et impera (divide and rule) .” To show that the god ought to include borders, I defend a global division of labor based on the assigned responsibility model, which was suggested by Robert Goodin . In Section 1, I illustrate the model and explain its application to the border problem . In Section 2, by replying to the main objections to the assigned responsibility model, I clarify its logical structure and defend it . Then, in Section 3, I move to the question of how

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to draw national boundaries . After suggesting that we can draw national boundaries in many ways, such as territorially, temporally, and personally, I defend the space border model by appealing to the mutually exclusive and collectively exhaustive (MECE) principle . In Section 4, I examine another border question regarding who is responsible in assigned territories and show why some brain drain should be prohibited . 1.

The Assigned Responsibility Model

1.1

Delusion of Care

To inquire into the question of whether to draw national boundaries, let us begin with Aristotle . Aristotle once objected to Plato’s argument on the common ownership of women and children, stating that “property that is common to the greatest number of owners receives the least attention; men care most for their private possessions, and for what they own in common less, or only so far as it falls to their own individual share .”1 Aristotle’s primary argument lies in the dilution of care . If humankind shares responsibility for children and raises them together, they tend to pay less attention to them and subsequently fail to bring them up appropriately . We can bring them up better if each family raises their own children . We care more when we do not share . This idea from antiquity was recently formulated and developed as the assigned responsibility model by Robert Goodin2 . To illustrate the model, let us use the example of caring for hospital patients . Suppose that a hospital has 5 doctors and 100 patients . What is the best way to care for these patients? All five doctors devoting one-hundredth of their time to each patient is not efficient . This inefficiency results from the fact that we care less when we share . A better way is for each doctor to care for his or her assigned patients (e . g ., 20 patients each) . The doctors are able to fulfill their responsibility to care for all patients by focusing on their own patients . This is the essence of the assigned responsibility model suggested by Goodin . Its logical structure can be analyzed as follows: The Assigned Responsibility (AR) Model: (AR1) People have a general responsibility to settle an issue . (AR2) It is effective to separate and assign the responsibility to do so . (AR3) Therefore, each agent has his or her assigned responsibility .

1 2

Aristotle, Politics, with an English translation by H . Rackham, 1932, Cambridge, 1161b32 Robert E . Goodin, What is so Special about Our Fellow Countrymen? Ethics 98 (1988), 663–686

Drawing National Boundaries for Global Governance

The assigned responsibility model explains special duties as devices to accomplish general duties . Parents have special duties to care for their own children, but not for other children . The model claims that these special duties do not derive from special bonds between parents and their children but, in fact, from general duties that all people have toward all children . Effectively putting these general duties into practice gives rise to parents’ special duties toward their own children . 1.2

Justifying Borders

Goodin applies this insight to state borders and claims that the assigned responsibility model explains why state borders work well in practice . Goodin writes that “[t]he duties that states (or, more precisely, their officials) have vis-a-vis their own citizens are not in any deep sense special .”3 To discharge our general duties effectively toward everyone on earth, we draw state borders and assign special duties toward our compatriots in our own state . This corresponds to the claim previously made about caring for hospital patients . Based on this claim, Goodin states, “[b]oundaries matter, I conclude . But it is the boundaries around people, not the boundaries around territories, that really matter morally .”4 This conclusion, however, is not completely accurate . From the assigned responsibility model, it does not necessarily follow that borders should be set around people but not around territories . Although boundaries matter morally, this does not resolve the question of what we ought to draw boundaries around . I address this question in Section 3 . However, to begin with, it is important to note two points concerning the assigned responsibility model to avoid objections regarding its negatives and to suggest positive implications . First, drawing national boundaries does not mean excluding outsiders . Drawing national boundaries comes into play to discharge our general duties effectively and does not exempt us from our general duties . Rather, it implies we have special duties toward insiders . Therefore, when some states have too few resources to discharge their special responsibility toward their citizens, other states have general duties to assist those states . In this sense, to assist poor states is not benevolence but the duty of rich states . This is because everyone has general duties toward everyone else . Second, the separation of responsibilities is useful not only for effective administration of global governance but also for effective control over governing power . The so-called separation of power among legislative, administrative, and judicial branches can be regarded as a special way to assign political responsibilities . The separation and

3 4

Goodin (footnote 2), 681 Ibid ., 686

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assignment of responsibilities imply that agents may exercise their governing power to the assigned extent and not beyond it (this is called “ultra vires”) . It has been recognized as a fundamental and effective way to avoid the corruption of political power . 2.

Objections and Replies

The assigned responsibility model is not uncontroversial and, in fact, invites a number of objections . I focus on three of them and examine their weight in the relevant arguments . 2.1

General Duties

First, Michael Blake finds the most significant difficulty in the major premise of the assigned responsibility model: there is collective ownership of the earth . As was shown, assigned responsibility starts from the basic assumption that we have a universal duty toward each other . Blake points out that such an assumption is “neither universally accepted, nor especially easy to understand .”5 His objection goes against the first presumption in the assigned responsibility model . However, I claim that this basic assumption is universally accepted . It can be safely said that it is universally accepted that we have general duties not to harm each other . Although the definition of “harm” is often disputed, whether we do have such duties is not . Moreover, it would not be a stretch to say that it is universally accepted that we have general duties to help those in dire need, although the conditions under which we must perform these duties is uncertain . Therefore, it would be safe to say that we share a universal responsibility to settle important issues . 2 .2

Unfair Assignment

Second, David Miller doubts whether the assignment of responsibilities always works well .6 Miller uses the example of a lifeguard, but we use the example of hospital patients again . Doctors taking care of their assigned patients does not ensure that they will be well cared for . Each doctor is usually a specialist in his/her own field, as an internist, a surgeon, a dentist, a psychiatrist, or a pediatrician . In addition, each patient usually has a specific disease . To take an example, a dentist cannot treat patients with Michael Blake, Duties across Borders . Harvard International Review (2007), (http://hir .harvard .edu/ article/?a=1483) 6 David Miller, On Nationality, 1995, Oxford, 63 . 5

Drawing National Boundaries for Global Governance

diseases of the eye . Therefore, it is not guaranteed that each doctor is the most competent to take care of their assigned patients . Miller’s objection concerns the second presumption in the AR model . This story is valid for national borders as well . Miller argues that it does not make any sense to assign responsibilities for the welfare of Swedes to other Swedes and the welfare of Somalians to other Somalians because of the existence of global inequality . Miller writes that “it would seem odd to put the well off in charge of the well off and the badly off in charge of the badly off .” However, Miller misses an important premise that relates to the assigned responsibility model . The model starts with our general duties and derives special duties from the general duties . This two-stage structure implies that when an agent cannot discharge special duties to his/her clients, the rest of us have general duties toward these clients . When Somalians cannot afford to take care of the welfare of Somalians owing to scarce resources, other people have the general duty of assisting Somalians . There is no such oddity as Miller suggests in the assigned responsibility model . Miller is still right in noting that a particular agent may not necessarily be the most competent agent to accomplish the assigned task . It is important to note that, in some cases, the assignment of responsibilities does not work well . This is particularly true when an assigned agent does not have enough information about his or her clients . The assigned responsibility model of state borders must determine how to assign responsibilities . 2.3

Borderlines

Third, Andrew Mason objects to Goodin’s argument with regard to his way of establishing borders . Mason evaluates the assigned responsibility model as an illuminating one but doubts that the assigned responsibility model should, as Goodin claims, “distinguish between citizens and long-term residents .”7 While the model does make a distinction between citizens and long-term residents, each state has no special responsibility to its long-term residents in its territory . However, this implies that they will be left behind even when they need some assistance from the state . This appears to show that drawing a distinction between citizens and long-term residents is not the most effective way to discharge our moral duties . It seems that Mason’s objection goes against the particular way of drawing national boundaries suggested by Goodin, but not against the general strategy of the assigned responsibility model . Mason seems to agree with boundaries between residents (including both citizens and long-term residents) and nonresidents . In fact, however, this

7

Andrew Mason, Special Obligations to Compatriots . Ethics 107 (1997), 434–435

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is not the case . Mason explicitly supports the moral notion of citizenship and validates a distinction between citizens and residents, particularly in a political context .8 Mason’s point is that the assigned responsibility model cannot explain a rightful distinction between citizens and residents . Therefore, we must answer two questions: first, where should we draw national boundaries, and second, why have these boundaries been drawn in the right place? 3.

How to Draw National Boundaries

3.1

What “Drawing National Boundaries” Means

The arguments illustrated above demonstrate that borders matter in determining how to discharge our general duties . It is useful to draw national boundaries to accomplish our universal responsibilities . Then, the next question that arises is, are those borders geographical? Some might think that undoubtedly they are . However, we can draw national boundaries not only spatially but also in other ways . Before examining this question, it is important to clarify what “drawing national boundaries” means . In the assigned responsibility model, drawing national boundaries means the following . To achieve global governance, we divide the whole globe into parts and assign some agents to be in charge of governing each part . Thus, “agents in charge of governing a part of the globe” can be called “government .” That is, drawing national boundaries means dividing the globe into parts and assigning a government the responsibility for each part . Simply put, this means demarcating each government’s main ethical task . Now, our question becomes clear . Around what should we draw national boundaries? In other words, along what lines should we divide our responsibilities? As we saw above, Goodin maintains that boundaries should be drawn around people . On this personal border model, we group all the people on the globe into groups, and we put each government in charge of each group of people . Put another way around, everyone is given citizenship of a government and receives some protective services from their government . We have so far mentioned two types of borders: geographical borders and personal borders . We can imagine other types of borders as well . First, we can draw national boundaries temporally, say across decades . In this time border model, a global government rules the globe for a decade, for example, while another does so for another decade . For example, one global government could be put in charge for the 2020s and lose its political authority after that . Temporal borders would be useful to prevent the abuse of power by a global government .

8

Ibid ., 443

Drawing National Boundaries for Global Governance

Second, we can draw national boundaries around elements . The globe consists of elements such as oxygen, silicon, aluminum, and carbon . In this elemental border model, the oxygen government could take care of the arrangement of oxygen particles on earth and the silicon government of silicon particles . This model makes all the elements on earth, including humans, objects of global governance . Third, we can draw national boundaries around issues . We face many kinds of global issues such as poverty, hunger, health, education, gender inequality, sanitation, energy, employment, infrastructure, economic inequality, and climate change, as shown by the Sustainable Development Goals .9 Other issues include civil war, weapon control, refugees, immigration, tax evasion, and terrorism . In this issue border model, the education government would be in charge of global education, and the energy government would be in charge of global energy . This model disentangles complicated issues into separate issues and assigns particular governments responsibility for particular issues . 3.2

Mutually Exclusive and Collectively Exhaustive

Now that we have five types of border division possibilities, what is the best way to draw national boundaries? To answer this question, it is important to meet the MECE principle . Assignment of responsibilities must be made in a way that is mutually exclusive and collectively exhaustive . On the one hand, if responsibilities are not assigned in a mutually exclusive way, some responsibilities will overlap with each other . This overlap will result in the dilution of care, which is the initial issue to be overcome . Here, coordination problems arise regarding plural governments . Generally speaking, it is an important task for a government to solve coordination problems . While a government is established to clear up coordination problems, overlapping governments cause new coordination problems because it is not clear which government is in charge of the responsibilities . On the other hand, if responsibilities are not assigned in a collectively exhaustive way, some areas will remain outside the responsibility of any government . In such unassigned areas, which might be called vacuums of governance, the issues will be left unresolved . It is important to include the whole problem to achieve better governance . Therefore, it is important to follow the MECE principle when we draw national boundaries and demarcate each government’s responsibilities . Mutual exclusiveness evades intricate coordination problems and collective exhaustiveness assures comprehensive governance . Here we must ask, among the five types of borders mentioned above, which is MECE? United Nations, Transforming our World: The 2030 Agenda for Sustainable Development, 2015, Resolution A/RES/70/1 (https://www .unfpa .org/resources/transforming-our-world-2030-agenda-sustainabledevelopment) 9

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First, the elemental border model is collectively exhaustive because every element has its government and only one “nationality .” However, it is not mutually exclusive because a compound will have multiple nationalities . Take, as an example, CO2 emissions: both the oxygen government and the carbon government would be in charge of such emissions and thus would need to coordinate their responsibilities . Second, the issue border model is neither mutually exclusive nor collectively exhaustive . Taking again the example of climate change, we can see that it covers many issues, such as environment, energy, poverty, lifestyle, and future generations . However, this would create difficult coordination problems among issue governments . Moreover, there always remains the possibility that some new issues will arise that the existing issue governments may not be able to handle . In sum, both the elemental border model and the issue border model do not meet the requirements of MECE . However, the borders along space, humans, and time seem to meet the principle of MECE, enabling the governments in charge of matters to do so in a mutually exclusive and collectively exhaustive way . 3.3

Space, Humans, and Time

It may sound strange that there should be a time border, but it actually is a very familiar practice . A system of restricted terms of office for presidents or members of parliament can be taken as involving a border around time because drawing national boundaries implies demarcating a legitimate range of governmental officials . The time border aims to prevent negative effects caused by a long-term occupancy of offices, and therefore, it is adopted in most political systems . While the time border is useful for effective control of governmental power, it does not work well when discharging responsibilities for good governance . The reason for this is that only one global government is in charge of every bit of the globe during its term of office . The time border is necessary but not sufficient for global governance . As noted above, Goodin suggests that we should establish borders around people . If we can successfully assign every single person on the globe a government that is in charge of him/her, then each person will have only one nationality, without any exception . In the personal border model, personal governments will take care of citizens in a mutually exclusive and collectively exhaustive way . That is, there would be no stateless person for whom no government is responsible and no overarching problem for which governments would need to coordinate their responsibilities . Thus understood, the personal border model is a promising way to form a model for global governance . However, two problems remain . The first problem concerns governmental ability . Each government has responsibilities to protect its members, but it can hardly accomplish them with limited resources when some of its members travel freely around the

Drawing National Boundaries for Global Governance

globe . It is almost impossible for the government to protect its members who become involved in an accident or a crime on the other side of the globe . The second problem concerns environmental issues . The personal border model assumes that it is human security that matters and then suggests that all humans be separated into groups . However, there are issues beyond the protection of humans, including environmental issues, such as the destruction of forests and the pollution of air and sea . These issues remain, but no government is in charge of them in the personal border model . That is to say, the model does not meet the requirement of collective exhaustiveness when considering natural environments as well as humans . To evade this problem, environmental issues might be taken to be those concerning human security . However, environmental issues have effects on a wide range of people and raise coordination problems for the governments that are responsible for them . While the personal border model faces these two problems, the geographical border model manages to solve them . First, the space border model suggests that a government is in charge of whoever stays within the region in spite of their membership, but is not in charge of those who go beyond its borders (including members) . It is usually much easier to assist “insiders” rather than “outsiders .” As such, the model requires fewer governmental resources to discharge responsibilities . Second, the space border model assumes that a government is responsible not only for humans but also for environments in its territory . This implies that environmental issues ought to be handled in a collectively exhaustive way . Moreover, “space” in the space border model comprises sea as well as land . Global issues that must be coped with include marine resources management, marine pollution, and piracy, all of which arise in the sea . To govern the globe in a collectively exhaustive way, it is necessary to set up a public sea government that deals with these marine issues . The space border model successfully makes this suggestion . 3.4

Movement and Body

From the above-mentioned arguments, it follows that the best way to draw national boundaries is geographically . This method enables us to discharge our responsibilities most effectively . Moreover, our current global system also draws national boundaries geographically . This means that, in Hegel’s words, “what is reasonable is real; that which is real is reasonable .” But what makes the space border model reasonable and real? We can find the rationale behind this idea by considering physical restraint in movement . Let us focus on the fact that movement takes time . To accomplish our responsibilities by dealing with various issues such as poverty, energy, and education, it is necessary to transfer many kinds of resources and place agents in charge of the issues . Because transportation and movement take much time and involve considerable costs,

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bringing together closely located issues can reduce such costs . This enables effective governance when governments are faced with limited governmental resources . Some might refer to information costs as well as physical restraint . A . I . Cohen argues that we should assist those in need living locally instead of those who are distant because “our knowledge of local conditions is typically deeper than that of distant contexts .”10 We usually know our local peoples’ preferences better than we know those of distant peoples . Obtaining information about distal conditions has a high cost because the cost to gain access to distant areas is great . The problem of information costs can be reduced to physical restraint in movement . Briefly put, we draw national boundaries geographically for a physical reason . Why does physics matter for drawing national boundaries? It matters because we live in a physical space . In other words, it matters because we are humans with bodies . Current issues such as poverty, employment, or infrastructure are about the corporeal human form . In addition, those who are in charge of governance are also humans who have bodies . When drawing national boundaries, we must take this decisive element into account . If we only had a soul, it would be useless to draw national boundaries geographically . However, because we have a body, we must draw national boundaries spatially . We can now understand the rationale for the territorial state system . 4.

Citizen Borders

4.1

Citizens and Governors

When examining the best form of global governance, we must establish another border for the citizenry . Citizens are those who are responsible for governance; they select and monitor governors . Governors are those who actually act to govern in a particular area as part of a government . On the personal border model, humans are referred to as passive entities that must be protected . Citizens need to be active entities to ensure that governance proceeds successfully . On the one hand, it is not necessary to draw national boundaries among candidates for governors in some government . The larger is the pool of candidates for governorship, the more often we can select appropriate governors . When the applicants are limited by their nationality, there will be fewer possibilities for citizens to select good governors . This is why we often see able foreign CEOs working for transnational corporations .

Andrew I . Cohen, Famine Relief and Human Virtue, in: Contemporary Debates in Applied Ethics, ed . Andrew I . Cohen / Christopher Heath Wellman, 2005, Oxford, 355 10

Drawing National Boundaries for Global Governance

On the other hand, it is essential to draw national boundaries among citizens . When there are few citizens to control governors in an area, governance in that area will fail . Such an area is usually called “a fragile state .” Fragile states “lack political will and/ or capacity to provide functions needed for poverty reduction, development, and to safeguard the security and human rights of their populations .”11 To sustain political will and capacity, a sufficient number of citizens must actively participate in monitoring governors . It follows that a certain number of citizens must be assigned to each area to achieve strong global governance . 4.2

Brain Drain

As suggested above, both will and capacity are essential for citizens to discharge their political responsibilities . Citizens must have sufficient interest in their governor’s activities and sufficient ability to check and control their governance . To govern the entire globe successfully, a sufficient number of citizens must be assigned to every state . This implies some restrictions on the brain drain, the large-scale immigration from some countries to other countries, that makes good governance impossible in a sending country . Some might object to this implication by claiming that a brain drain is not only permissible but also recommended . Albert Hirschman regards economics and politics as an alternative mechanism for quality control .12 An economic mechanism controls the quality of goods by an exit option, namely boycotting; a political mechanism controls the quality of government by a voice option, namely voting . Once we consider market and democracy as alternative quality control mechanisms, we can grasp that we should employ exit as well as voice strategies to control the quality of governance . Based on Hirschman’s insight, some might claim that to achieve better governance, we should exit from the countries in which a government goes badly . Thus, a brain drain as an exit option is useful to control the governmental quality of potentially sending countries . We can reply to this objection by appealing to the collective exhaustiveness requirement of the MECE . To implement good governance of the globe, it must be governed in a collectively exhaustive way, and every part must have enough citizens to control their government properly . If, in some areas, we do not assign a sufficient number of citizens who have both the will and capacity to check their government, we cannot successfully govern the globe in a collectively exhaustive way .

OECD / DAC, Principles for Good International Engagement in Fragile States and Situations, 2007 (http:// www .oecd .org/dacfragilestates/43463433 .pdf) 12 Albert O . Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States, 1970, Harvard 11

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It follows, therefore, that an exit option must be constrained to some extent . First, host countries must be placed under certain constraints . They must be prohibited from extracting able citizens from other countries in pursuit of their own countries . Second, emigrating countries must have certain constraints as well . They must be prohibited from urging opponents to exit their territory or from deporting them . However, this does not imply that immigration should be completely banned . The aim of restricting emigration is just to ensure a sufficient number of able citizens who are responsible for governance in certain areas . Therefore, it is not necessary to restrict emigration unless it reaches the threshold, which would probably be quite high . In sum, it is necessary to draw national boundaries around those who are responsible for each territory . In other words, we must distinguish citizens and foreigners in terms of their responsibilities in governance at each territory of the globe . Each area requires a sufficient number of people who are responsible for that area’s best governance . 5.

Conclusion

A god, while considering the best way of governing the globe, would draw national boundaries around space because humans have bodies as well as souls . He/she would assign to each territory those who are responsible for its governance . They would select and control governors, and also ensure good governance in their territory . They would set in place certain restrictions around emigration . It is important to note that we have not come across any arguments for the immigration restrictions that we see today in ordinary states . The restriction of immigration should be based on reasons other than the best form of global governance . In an ideal arrangement for global governance, there would probably be no restriction on immigration . Prof . Hirohide Takikawa College of Law and Politics, Rikkyo University, 3-34-1 Nishiikebukuro, Toshimaku, Tokyo 171–8501, tkkw@rikkyo .ac .jp This research was funded by Grants-in-Aid for Scientific Research (C) 17K03329 from Japan Society for the Promotion of Science ( JSPS) .

Hate Speech, Legitimacy, and Democracy A Critical Survey of Ronald Dworkin’s Legitimacy Argument SHIH-TUNG CHUANG

Abstract

Proponents and opponents of hate speech law usually defend their arguments by maintaining some basic democratic values . Dworkin asserts that the upper intervention of hate speech diminishes the legitimacy of downstream laws . I propose three critiques to challenge his argument . The first argues that the democratic background he suggests cannot preclude the possibility that a fair democracy may enact a legitimate hate speech law . The second argues that hate speech laws not necessarily collapse the overall legitimacy of downstream laws . The third argues that the link of legitimacy between upstream and downstream laws is not as strong as he assumes . Therefore, Dworkin cannot plausibly assert that the upper intervention of hate speech must undermine the legitimacy of downstream legislation . Keywords: autonomy, democracy, dignity, fairness, hate speech, legitimacy .

Does hate speech undermine or strengthen democracy? This issue has invited an intense debate in contemporary legal and political philosophy . Some argue that tolerating hate speech can entrench the fundamental values of democracy such as autonomy, equality, and dignity . Others argue that hate speech should be prohibited by because it deeply injures these basic democratic values . Both camps defend their views of what a democratic self-government truly means and the values it should protect . Among them, Ronald Dworkin argues that the upper intervention of hate speech would undermine the legitimacy of downstream laws in a democracy . This essay raises three critiques to challenge his legitimacy argument . The first argues that upstream hate speech laws might not be illegitimate if they are enacted by a fair democratic process which fully respects the ethical conviction of hate speakers by

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giving them a fair voice in the process of legislation . The second argues that upstream hate speech laws not necessarily undermines the legitimacy of downstream laws if hate speakers have an equal opportunity to express their values and opinions in the downstream legislative process . The third argues that the absence of upstream hate speech laws cannot guarantee that all downstream laws provide each citizen with equal treatment because some unequal laws may be enacted and claimed as legitimate by a fair democratic procedure . Therefore, Dworkin’s legitimacy argument cannot justify that upstream hate speech laws necessarily undermine the legitimacy of downstream laws for the link between them is not as tight as he asserts . 1.

Hate Speech and Democracy: Concepts and Controversies

In contemporary scholarship, the issue of whether law should prohibit hate speech has initiated fierce debates . Many scholars present their arguments by briefly defining the concept of hate speech . Two main approaches are frequently used to define it . The first is the ‘semantic approach’ and the second the ‘evaluative approach’ . The semantic approach articulates the meaning of hate speech by referring to lexicon or/and legal definition and distinguishes its essential features from other similar but different concepts such as critique and disagreement . For example, Robert Post defines hate speech as “speech expressing hatred or intolerance of other social groups, especially on the basis of race or sexuality”, based on OED definition of ‘Hate’ and some international conventions on human rights .1 Susan Brison relies on hate speech ordinances in municipalities and university campuses to characterize it as the kind of speech that “vilifies individuals or groups on the basis of such characteristics as race, sex, ethnicity, religion, and sexual orientation, which (1) constitutes face-to-face vilification, (2) creates a hostile or intimidating environment, or (3) is a kind of group libels .”2 Jeremy Waldron, by referring to some hate speech regulations, defines hate speech as “the use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against them .”3 As Post points out, almost all hate speech regulations define it in terms of two elements: the first is that it must express the emotion of dislike or abhorrence, and the second is the additional element to identify the unique presence of hate speech and hence to justify legal intervention . This additional element comes in two distinct kinds: it may emphasize the manner of speech or the likelihood of causing contingent Robert Post, Hate Speech, in: Extreme Speech and Democracy, eds . Ivan Hare and James Weinstein, 2009, 123–5 . 2 Susan Brison, The Autonomy Defense of Free Speech, Ethics 108 (1998), 313–315 . 3 Jeremy Waldron, The Harm in Hate Speech, 2012, 8–9 . 1

Hate Speech, Legitimacy, and Democracy

harm like violence or discrimination .4 Accordingly, three controversies emerge in the semantic approach . They are controversies about the content and the manner of hate speech, and the consequence/harm it may cause . The content controversy involves two main disputes . The first is the conceptual issue of identifying the essential features or ‘particular circumstances’5 that make a speech thought to be hate speech when it is expressed . The second involves the substantive debate about whether government should constrain hate speech based on its content . The second controversy points to the manner of expression . Is there any appropriate way of hate speech expression permitted by the law? Post argues that it is impossible to properly distinguish a hate speech thought to respect the decencies of controversy from a speech so outrageous and therefore hate inducing .6 On the contrary, Waldron asserts that a decent way of expressing hate thoughts is possible and tolerable . He insists that hate speakers “don’t need to use fighting words to express their opposition; they can use ordinary words .”7 The third controversy also invites intense debates . Proponents of hate speech legislation emphasize that it causes serious harms to its targeted people and these harms include social harm and individual harm, and even the perpetrator would also be harmed .8 However, opponents either refute the causal link between hate speech and the consequence of harm or reject that the harm caused by hate speech can justify its legal prohibition .9 The evaluative approach usually defend or reject the legitimacy of hate speech regulation by referring to the argument from autonomy, dignity, or democracy . Defenders of the autonomy argument usually oppose the legal restriction of hate speech . Edwin Baker presents his argument based on two premises: (1) the legitimacy of a state depends on its respect for people’s equality and autonomy; and (2) the state’s respect for people’s autonomy means it allows people to express their own values, no matter what these values are and irrespective of how this expressive content harms other people .10 For him, the autonomy of expression from governmental intervention is a matter of ‘formal autonomy’ . It requires the state not to constrain the expressive right of people and allow them to express their own values . Furthermore, law’s respect for the formal autonomy of one person never denies its respect for the formal autonomy of another .11

Post (footnote 1), 127 . Ibid . 124 . Ibid . 128–30 . Waldron (footnote 3), 183 . Waldron, (footnote 3), 81–9 . Richard Delgado and Jean Stefancic, Understanding Words that Wound, 2004, 12–18 . 9 Ronald Dworkin, Freedom’s Law: The Moral Reading of American Constitution, 1996, 217–220 . Thomas Scalon, A Theory of Freedom of Expression, Philosophy and Public Affairs 1 (1972), 213–215 . 10 Edwin Baker, Autonomy and Hate Speech, in: Extreme Speech and Democracy, eds . Ivan Hare and James Weinstein, 2009, 142 . 11 Ibid . 4 5 6 7 8

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The argument from dignity has a deep divergence, however . Dworkin’s theory of dignity is premised on two interdependent principles: the principle of self-respect and the principle of authenticity . The first requires each person take his own life seriously; he must accept that it is a matter of objective importance that his life be a successful performance rather than a wasted opportunity . The second requires each person has a special personal responsibility for identifying what counts as a successful life for him .12 Government should equally respect each citizen’s ‘ethical independence’ . The law must not constrain freedom by assuming the popularity or superiority of any ethical values . Thus, the freedom to speak or write honestly as your conviction requires is foundational and cannot be compromised .13 On the contrary, Waldron develops a different conception of dignity to justify hate speech legislation . He argues that dignity is the status of a person entitled to give an account of herself and to demand that her agency as a human being be taken seriously in others’ attitudes and actions towards her and in social life generally .14 Dignity as a conception of status originally derives from the Roman idea of dignitas which means ‘honor’ or ‘high social status’, and it is transformed and interpreted by Kant as the ‘inner value’ of human being in modern time .15 Waldron opposes to the Kantian value-based idea of dignity and adopts the Roman status-based conception . He claims that the ancient idea of dignity has been ‘transvalued’ as a notion of ‘upwards equalization of rank’ in modern legal systems .16 Hate speech harms the dignity, the social status of the targeted persons who are entitled to be treated by the state and their fellow members as equal legal citizens .17 The different conceptions of dignity lead to rival arguments about the legitimacy of hate speech law . For Dworkin, hate speech laws jeopardize the dignity of a hate speaker as an ethical independent agent and thus undermines the legitimacy of government to exercise the political power over its citizens . Waldron argues that hate speech seriously harms the dignity of targeted people to enjoin their social status as equal legal citizens in a well-ordered society . Nevertheless, it is worth noted that Dworkin and Waldron are defenders of liberal democracy and share the idea that human dignity is the fundamental democratic value . Their disagreement on hate speech laws derives not only from the different views of dignity but also from the different conceptions of democracy . As mentioned previously, one main dispute concerning the content of hate speech is about whether the state is justified to constrain speech based on its content . Proponents of free speech usually endorse the principle of content neutrality to argue against hate

12 13 14 15 16 17

Ronald Dworkin, Justice for Hedgehogs, 2011, 203–204 . Ibid . 368–373 . Jeremy Waldron, How Law Protects Dignity, Cambridge Law Journal 71 (2012), 202 . Michael Rosen, Dignity: Its History and Meaning, 2012, 11–13 Jeremy Waldron, Dignity, Rank, and Rights, 2015, 33 . Waldron (footnote 3), 141–3 .

Hate Speech, Legitimacy, and Democracy

speech legislation in a democracy . It can be called the ‘neutral’ conception of democracy . To the contrary, opponents defend the ‘non-neutral’ conception by arguing that a democratic government has the legitimacy to restrict hate speech based on its content . Baker, Dworkin, and Post defend the neutral conception whereas Steven Heyman and Waldron endorse the non-neutral one . Baker claims that the core value of democracy lies in its respect for autonomy . This is the foundation of a legal order to claim its political legitimacy .18 Dworkin proposes the ‘partnership’ conception of democracy by arguing that a democratic government must undertake an obligation of equal concern and respect for its citizens .19 Post stresses that only a free participation of public discourse can reveal the significance of democratic self-government .20 In contrast, Heyman asserts that free speech should be constrained by other equally important rights in a constitutional democracy . For him, the ‘right to recognition’ is the most fundamental right . It requires individuals have a duty to recognize one another as human beings and citizens . Hate speech violates this duty in a way that affects both the targeted citizens and the democratic community as a whole .21 Waldron urges that a well-ordered society must assure the public social good and the equal dignity of each person . A content-based restriction on hate speech provides the necessary assurance for a public democratic culture to protect the dignity of the vulnerable groups .22 So far I have shown the main controversies behind the concepts of hate speech and democracy . My aim is to clarify the meaning and extension of hate speech . According to most international conventions, hate speech regulations and judicial decisions, the concept of hate speech is strictly interpreted and confined to the speech that incites hatred or hostility against a group of persons on the ground of their race, gender, religion, ethnic origin, or sexual orientation . Only very few regulations such as the German Penal Code and the Canada Criminal Code adopt a broader definition that refers to the incitement of hatred against any identifiable group or segment of the population .23 The strict account invites some doubts however . Why the law prohibits hate speech on the ground of these human characteristics rather than others? Why the characteristics like gender and sexual orientation are the targets of legal intervention in some countries but not prohibited in others? Are there some essential human features quali-

Edwin Baker, Is Democracy a Sound Basis for a Free Speech Principle? Virginia Law Journal 97 (2011), 521–522 . 19 Dworkin (footnote 12), 384 . 20 Robert Post, Participatory Democracy and Free Speech, 97 Virginia Law Journal 97 (2011), 478–81 . 21 Steven Heyman, Hate Speech, Public Discourse, and the First Amendment, in: Extreme Speech and Democracy, eds . Ivan Hare and James Weinstein, 2009, 166–7 . 22 Waldron (footnote 3), 81–89 . 23 Section 130(1) of the German Penal Code prohibits “assaults on the human dignity of others by insulting, maliciously maligning or defaming segments of the population” . Section 319(1) of the Canada Criminal Code prohibits public statements that incite “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace .” Cf . Waldron (footnote 3), 8 . 18

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fied to be the ground of hate speech legislation? These questions challenge the justification of any evaluative argument which defends the legitimacy of hate speech law . In other words, any speech expressing hatred against a particular group of persons beyond the strict account – such as the speech humiliating or degrading the rich, the powerful, or the socially advantaged  – would be excluded from the scope of hate speech . It would defeat the important values of autonomy, equality, dignity, and democracy that proponents of hate speech legislation aim to defend . Therefore, I adopt the broad account to define hate speech as the expression that incites hatred or hostility against any identifiable group in a society . 2.

Dworkin’s Legitimacy Argument: An Examination

In his “Foreword” to the collected contribution of Extreme Speech and Democracy24, Dworkin succinctly presents a powerful argument to defend his liberal conception of free speech . He argues that free speech is a universal human right for democratic and non-democratic societies . The argument is premised on what he calls ‘the more basic obligation of government to treat all those subject to its dominion with equal concern’ .25 Even in a non-democratic country where its citizens have no real vote, these citizens still have the right to speak out; for if a government uses its power to silence those opinions it despises, it would be at the cost of political legitimacy .26 The following passage shows the point of his argument . Fair democracy requires what we might call a democratic background: it requires, for example, that every competent adult have a vote in deciding what the majority’s will is . And it requires, further, that each citizen have not just a vote but a voice: a majority decision is not fair unless everyone has had a fair opportunity to express his or her attitudes or opinions or fears or tastes or presuppositions or prejudices or ideals, not just in the hope of influencing others (though that hope is crucially important), but also just to confirm his or her standing as a responsible agent in, rather than a passive victim of, collective action . The majority has no right to impose its will on someone who is forbidden to raise a voice in protest or argument or objection before the decision is taken . (My emphasis)27

For Dworkin, majoritarian procedures may be a necessary condition of political legitimacy but they are not a sufficient condition . He argues that a fair democracy must be based on giving each citizen a voice, ‘a fair opportunity’ of free expression; otherwise,

Ronald Dworkin, Foreword, in: Extreme Speech and Democracy, eds . Ivan Hare and James Weinstein, 2009, v–ix . 25 Ibid . ix . 26 Ibid . 27 Ibid . vii . 24

Hate Speech, Legitimacy, and Democracy

any majority decision would be unfair . A real democracy requires its majoritarian procedures provide each citizen a fair opportunity to express her opinions in making a majority decision . I call this argument ‘the fairness premise’ . From this premise, Dworkin asserts that freedom of speech is a central condition of political legitimacy . It is unfair to impose the majority’s will on someone who is not allowed to express her opinions, prejudices, tastes, and attitudes, no matter how offensive the majority takes these expressions to be . In addition, it deprives of her the fair opportunity to contribute to the moral and cultural environment by which the community’s legislation and policy are usually determined .28 Accordingly, Dworkin concludes his legitimacy argument as follows . We may and must protect women and homosexuals and members of minority group from specific and damaging consequences of sexism, intolerance, and racism . We must protect them against unfairness and inequality in employment or education or housing or the criminal process, for example, and we may adopt laws to achieve that protection . But we must not try to intervene further upstream, by forbidding any expression of the attitudes or prejudices that we think nourish such unfairness or inequality, because if we intervene too soon in the process through which collective opinion is formed, we spoil the only democratic justification we have for insisting that everyone obey these laws, even those who hate and resent them . (My emphasis)29

The fairness premise obviously permeates throughout Dworkin’s legitimacy argument . In my view, it consists of three senses or levels of fairness: fair vote, fair voice, and fair claim . Fair vote means each citizen has her own vote to participate in the community’s decision-making process . This is the baseline requirement or the first level of fairness for a democratic society to form its decision in accordance with the majority rule . However, a majority decision cannot be regarded as fair unless the decision-making process provides each citizen a fair opportunity or at the second level of fairness to have her voice . Finally, if a majority decision fulfills the requirements of fair vote and fair voice, government at the third level has a fair (legitimate) claim to demand all citizens to obey its collective decisions . Therefore, any upstream intervention at the second level of fair voice would impede a government’s third-level fair claim to require all its citizens to obey downstream majority decisions enacted at the first level of fair vote . The bedrock of Dworkin’s fairness premise lies in what he says the more basic obligation of government to treat all its citizens with equal concern . This egalitarian obligation derives from his ethical theory of dignity premised on the twinned principles of self-respect and authenticity . Government cannot claim the legitimacy of its collective decisions unless it fulfills the obligation of equal dignity . For him, the protection of free speech is the central condition of political legitimacy . It requires a government

28 29

Ibid . viii . Ibid .

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to protect each citizen’s negative and positive liberty . The negative liberty of speech is grounded on the authenticity principle of dignity . A democratic government must not constrain the foundational ethical independence of each person for any reason . Hate speech law obviously infringes the speaker’s ethical independence, not only because government prevents her from speaking out honestly as her convictions or beliefs requires, but also because government assumes the content of hate speech as disdainful or detestable and thereby degrades her esteem for the importance of certain lives .30 The positive aspect of free speech is essential to the political legitimacy of collective self-government . According to Dworkin, dignity not only requires independence from a government’s intervention in matters of ethical choice but also requires each citizen be allowed to play a role in the collective decisions .31 Thus, he defends the partnership not the majoritarian model of democracy . The majoritarian model insists the community’s legislation and policy be determined by the largest numbers of citizens after due discussion and reflection . The partnership model insists that self-government means government by the people as a whole and as equal partners rather than by the majority of people exercising authority over everyone .32 Therefore, he argues that “self-government requires free access to information, and government is not legitimate, and so has no moral title to coerce, unless all those coerced have had an opportunity to influence collections decisions .”33 Waldron proposes some critiques to refute Dworkin’s legitimacy argument . First of all, he indicates that banning hate speech in the upstream does not prevent hate speakers from expressing their opposition to downstream laws by a non-harmful way of expression, and to that extent, the loss of downstream legitimacy incurred as a result of banning hate speech is minimal or even nonexistent .34 Moreover, he doubts how serious is Dworkin to assert that upstream hate speech laws undermine the legitimacy of downstream laws against discrimination and racial violence in most democracies . Waldron says that “most of us cannot accept the tight link between the enforcement of hate speech laws and the conditions of the legitimacy of other (downstream) laws that Dworkin asserts .”(My emphasis)35 Finally, by indicating that Dworkin clearly speaks of legitimacy as not an all-or-nothing matter but a matter of degree, Waldron argues that the ‘deficit in legitimacy’ may merely generate a slight and minimal effect on the legitimacy of downstream laws .36 Waldron’s critical arguments are illuminating . Inspired by some of his insights, I propose the following three critiques to challenge Dworkin’s legitimacy argument . 30 31 32 33 34 35 36

Dworkin (footnote 12), 373 . Ibid . 379 . Ibid . 383–4 . Ibid . 372 . Waldron (footnote 3), 183 . Ibid . 186 . Ibid . 188–92 .

Hate Speech, Legitimacy, and Democracy

3.

Dworkin’s Legitimacy Argument: Three Critiques

3.1

Are all upstream hate speech laws necessarily illegitimate?

My first critique points to the legitimacy issue of hate speech law . Are all hate speech laws illegitimate? For Dworkin, the answer must be ‘Yes’ because hate speech laws impede the ethical independence of hate speakers and thereby undermine the political legitimacy of self-government . However, a close examination of his fairness premise may leave some room of doubt . As mentioned above, it is established by three levels of fairness including fair vote, fair voice, and fair claim . They provide the important check of political legitimacy for any majority decision in a democratic society . If a majority decision is made by giving each citizen a fair vote and a fair voice, government is entitled to fairly claim the legitimacy of that decision and demand its citizens to obey it . But does the majority decision that satisfies these levels of fairness also include hate speech law itself? At this point, Dworkin’s argument seems to have a paradox . Let me illustrate it in the following propositional statements . P1: P2: P3: P4: P5:

Based on the fair democratic process, each citizen has a fair vote and a fair voice . All hate speakers have a fair vote and a fair voice in the democratic process . After full discussion and deliberation, the majority votes to support the legal prohibition of hate speech . The hate speech law is enacted by a fair democratic process . Therefore, government can fairly claim the legitimacy of hate speech law and demand all citizens including hate speakers to obey it .

How can that be? You may ask . If hate speech law can pass the tests of democratic fairness and possess the political legitimacy as downstream laws have, Dworkin’s argument would be self-defeating . I do not think he would concede that . He must have an answer for it . That answer may be found in the following passage . We can find it in a condition of human dignity: it is illegitimate for governments to impose a collective or official decision on dissenting individuals, using the coercive powers of the state, unless that decision has been taken in a manner that respects each individual’s status as a free and equal member of the community . (My emphasis)37

In this way, Dworkin’s legitimacy argument seems to remain intact and coherent . Nevertheless, this account generates another issue . If a democratic government does enact a hate speech law through the democratic background Dworkin suggests, then, from

37

Dworkin (footnote 24), vii .

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where or from whom can that hate speech law be fairly claimed to be illegitimate? The answer, I suppose Dworkin would say, must be ‘judicial review’ . His partnership conception of democracy insists that judicial review is an essential part of democracy rather than a threat to subvert democracy .38 However, it is worthy of noting that Dworkin presents his account of judicial review in a cautious way . In articulating the question of whether the institution of judicial review contributes overall to the legitimacy of a government, he argues that “any defense of judicial review as democratic must take some other form: it must argue that judicial review improves overall legitimacy by making it more likely that the community will settle on and enforce some appropriate conception of negative liberty and of a fair distribution of resources and opportunities, as well as of the positive liberty that is the subject of this chapter [Democracy] .” (My emphasis)39 Dworkin seems to cautiously assert that whether his argument of judicial review can succeed for any political community depends on a host of factors varying from place to place . He says: “Nothing guarantees in advance that judicial review either will or will not make a majoritarian community more legitimate and democratic .” (My emphasis)40 Dworkin is quite aware of that his defense of judicial review as democratic is unpopular and invites many criticisms . That is why I think he claims that nothing can guarantee that judicial review will definitely make a majoritarian community more legitimate and democratic . As Waldron critically argues, on Dworkin’s account, the United States would be the only advanced democracy entitled to have and enforce downstream laws against discrimination and violence, because the U . S . Constitution bans the sorts of speech restrictions that would otherwise deprive downstream laws of their legitimacy .41 Waldron’s criticism focuses on the second critique I will shortly argue . It indicates that Dworkin cannot plausibly assert that those democratic countries having hate speech laws do not possess the legitimacy of enforcing their downstream laws against discrimination and violence . My first critique points to the antecedent question . I argue that it is possible for a democratic country to enact and enforce a hate speech law without undermining the legitimacy of that democracy . Although Dworkin claims that judicial review can improve a democracy’s overall legitimacy, he concedes that it is no guarantee that judicial review must make a majoritarian country more legitimate and democratic, needless to mention those democracies without judicial review . Therefore, his argument cannot preclude the possibility that some hate speech laws may have political legitimacy in some democracies with or without judicial review .

38 39 40 41

Dworkin (footnote 12), 395–9 . Ibid . 398 . Ibid . Waldron (footnote 3), 186 .

Hate Speech, Legitimacy, and Democracy

3.2

Does the existence of upstream hate speech laws necessarily diminish the legitimacy of downstream laws?

The first critique reveals that hate speech laws may or may not be legitimate in a democratic country . It depends on how the design of a constitutional democracy settles the legitimacy issue of upstream legislation . As Dworkin admits, judicial review cannot guarantee to make a democracy more legitimate . This concession obviously weakens his strong claim that the upstream intervention of hate expression destroys the only democratic justification of downstream laws . That is the main point of my second critique, which can be presented in the following propositional statements . P1: P2: P3: P4:

Based on the fair democratic process, the legislature enacts a hate speech law . Based on the fair democratic process and the hate speech law enacted by this process, the majority votes to support the enactment of downstream laws against discrimination and violence in employment or education . These downstream laws are enacted in compliance with a fair democratic process . Therefore, government has the legitimacy to demand all citizens including hate speakers to obey these downstream laws .

If the legitimacy of hate speech law is sustained by the mechanism of a democracy, does it forfeit the legitimate status of downstream laws? The answer is ‘not necessarily’ . It is still an open question for a constitutional democracy to examine the legitimacy of its downstream laws . Furthermore, the mechanism a democracy uses to settle the downstream legitimacy issue varies from country to country . For some, the United States for example, it may be resolved by judicial review . For others, such as the United Kingdom, the majoritarian procedures may be the crucial mechanism of settlement . The diversity of settlement mechanism and the disagreement on the legitimacy of downstream laws lead Waldron to dispute: “Does he [Dworkin] really believe that the enactment and enforcement of all these downstream laws in Britain is illegitimate as a result of the existence of the upstream laws?”42 As Waldron points out, almost all advanced democracies have hate speech laws . Does that mean these hate speech laws undermine altogether the legitimacy of all downstream laws in those advanced democratic countries? He thinks Dworkin would not be serious to hold this view . What Dworkin really wants to say is that there is something ‘morally to regret’ if downstream laws against racial discrimination are enforced by preventing racists from expressing their racial convictions to influence the political

42

Ibid . 185 .

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culture as they wish .43 Waldron shoots a crucial point . Dworkin clearly asserts that legitimacy is not an all or nothing matter but a matter of degree .44 As such, the deficit in legitimacy might be larger or smaller . In the case of hate speech legislation, Waldron argues that the deficit is slight because it may not generate a compelling reason against hate speech laws when the stakes (the harms that such laws might avert) are very high .45 My critique targets to another point . Given legitimacy is a matter of degree and the degree of deficit in legitimacy that hate speech laws bring out to downstream laws is determined by the democratic mechanism varying from place to place, the deficit may be regarded as large in some democracy but smaller or even non-existent in another . The protection of free speech might be the central condition of a democracy . But it is not the ‘only’ democratic condition to settle the legitimacy issue of downstream legislation . Moreover, in the absence of hate speech laws, the legitimacy of downstream laws may be regarded as deficient by virtue of other important democratic conditions . That is the point of my final critique . 3.3

Can the absence of upstream hate speech laws guarantee that all downstream laws are legitimate?

Again, the third critique can be shown by the following propositional statements . P1: P2: P3: P4:

No upstream law prohibits hate speech . Based on the fair democratic process, hate speakers have the fair opportunity to vote and to voice . After full discussion and deliberation, the majority supports to enact some downstream laws that justify discrimination or violence in employment or education . Therefore, government has the legitimacy to demand all citizens including the targeted persons of discrimination or violence to obey these downstream laws .

Any democracy is possible to enact and enforce downstream laws permitting discrimination or violence by its majoritarian procedures without upstream laws . It is not the case as Dworkin argues that the upstream intervention of hate speech undermines the legitimacy of downstream laws . Instead, it is the case that, although everyone has a fair opportunity to voice without upstream intervention, a democracy may enact downstream unequal laws and claim its legitimacy to enforce them . If someone challenges 43 44 45

Ibid . 188 . Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate, 2006, 97 . Waldron (footnote 3), 188 .

Hate Speech, Legitimacy, and Democracy

the legitimacy of these unequal laws, she may resort to some mechanism provided by the democratic scheme of her country . It may be judicial review, resumed majoritarian procedures, or referendum . This shows that it is implausible to assert that the protection of free speech is the only democratic condition in determining the legitimacy of downstream laws . There are still other important conditions needed even though free speech is fully protected in a democracy . Dworkin might respond that free speech is a crucial but not the only part of human dignity, and assert that a full protection of free speech not necessarily guarantees a full protection of human dignity . For him, the upper intervention of hate speech infringes the second principle of dignity, namely, the principle of authenticity . It not only impedes the negative liberty of hate speakers’ ethical independence by preventing them from expressing their ethical convictions, but also hinders their positive liberty of contributing to the moral and political culture of a democracy . In our case, given each citizen’s negative liberty and positive liberty is fully protected, some may assert that downstream unequal laws are illegitimate because they violate the first principle of human dignity which requires that government should equally respect each citizen’s fate . In this sense, the legitimacy of downstream unequal laws is determined by the other aspect of human dignity a democracy required to endorse . This is exactly the point I want to argue . The link of legitimacy between the upstream and the downstream is not as strong as Dworkin contends . In the absence of upper intervention, downstream unequal laws might be claimed as illegitimate by judicial review or resumed majoritarian legislation or referendum on the ground of equal concern rather than equal respect . It shows that the legitimacy of downstream laws is not solely determined by the protection of free speech . Therefore, the link of legitimacy between the upstream and the downstream is not as tight as Dworkin asserts . 4.

Conclusion

Freedom of speech is a central but not the only condition of democracy . Dworkin’s legitimacy argument asserts that the enactment of hate speech laws undermines the only democratic justification of legitimacy required to enact and enforce downstream laws in a democracy . I propose three critiques to challenge this argument . First of all, since the democratic background Dworkin argues consists of three levels of fairness (a fair vote, a fair voice, and a fair claim), and since he concedes that judicial review may not guarantee to make a majoritarian community more legitimate and democratic, his legitimacy argument cannot preclude the possibility that in some democracies hate speech laws are enacted in compliance with the required democratic background that provides government the moral authority to claim the upper intervention as legitimate .

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Secondly, as legitimacy is a matter of degree and the deficit in legitimacy varies from place to place, the legitimacy of downstream laws may be regarded as greatly deficient in some democracies but slightly lacking or even non-existent in others . It shows that the upper intervention not necessarily collapses the overall legitimacy of downstream legislation . It is because, apart from free speech, there are some important democratic conditions to settle the legitimacy issue of downstream legislation . Finally, it is also possible that a democratic country might enact downstream unequal laws without the upper intervention of free speech . In this case, the legitimacy of these unequal laws depends on other important democratic conditions rather than the condition of free speech . Therefore, it shows that the legitimacy link between the upstream and the downstream is not as tight as Dworkin assumes . Shih-Tung Chuang College of Law, National Taiwan University, No . 1, Sec . 4, Roosevelt Rd, Taipei 10617, Taiwan, E-mail: stchuang@ntu .edu .tw

A Liberal Justification of Nationalism TAKAYUKI KAWASE

Abstract

This paper aims to justify the argument for liberal nationalism . It is often said that liberalism and nationalism are not compatible . I agree that they often actually conflict with each other . Mobilization of individuals into a state often violates their freedom . We are familiar with so many stories of illiberal nationalism . Hence, we tend to think that nationalism is inevitably illiberal and evil . However, I insist it is just likely to be so, but never inevitably . My argument for liberal nationalism claims not only that liberalism and nationalism are compatible, but also that nationalism is a useful instrument for carrying out policies of liberalism . We should not express emotional hatred against nationalism automatically, but require a calm and reasonable analysis of the subject . Keywords:

nationalism, liberalism, multiculturalism, language policy, welfare state, civil

religion 1.

Definition

I will begin by defining the conceptions of liberalism and nationalism that I have adopted in this paper . Nationalism aims to establish and maintain the nation-state . It integrates national communities with their governments . This means that nationalism insists that extensions of cultural borderlines and political borderlines must match . It also rejects the domination of the national community by any foreign governments . One of the typical examples of this is a movement for independence from imperialist domination in a colonized nation . In order to establish and maintain the nation-state, nationalism requires integration of the nation . If the mode of such integration is oppressive, it must result in an illiberal nationalism . For example, excluding those who do not believe in a certain religion from the nation is illiberal . On the other hand, requiring compliance and loyalty to a constitution or other legal institutions, or requiring all citizens to learn the national languages are not as oppressive . Thus, there are liberal

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and illiberal conceptions of nationalism . What kind of nationalism is liberal? This is my first question . Next, I define my conception of liberalism . I defend egalitarian liberalism . However, there are several varieties of egalitarian liberalism . Therefore, it must be made clear what kind of equality we want . I defend the idea of an equal availability of a range of free choices among different conceptions of goods in life . According to this idea, the government should provide to the people the widest and most equal range of free choices as possible . The wider the range of choices people possess, the more freedom people enjoy . This is what my conception of liberalism requires . Of course, choices that violate others’ freedoms or destroy the forms of justice guaranteed by the constitution must not be permitted . Moreover, the range of free choices available to people must not vary as a result of their race, gender, religion, sexual orientation, or any other conception of goods, as long as they fall under the constitution of justice . For example, situations in which women cannot receive socially prestigious positions, or where persons from certain ethnic groups are barred from becoming public servants even if they are co-nationals, cannot be permitted . This is what egalitarianism requires .1 2.

Integration of language

What is the relationship between such egalitarian liberalism and nationalism? My answer is that liberal integration of nation is a fairly effective instrument for carrying out several policies of egalitarian liberalism . Here, I focus on two ways of integrating the nation, integration of language and mutual trust . However, I have a qualification here . Language and mutual trust are just two modes of integration . They are neither necessary nor sufficient conditions for liberal nationalism . For example, Switzerland is plural in its languages, but is a well-integrated liberal country . In federal systems, mutual trust for welfare policies may be directed towards local governments and not the national government . However, they can be still liberal . Moreover, many other modes of integration may well be effective instruments of liberalism . What I argue below is that integration of language and mutual trust are neither necessary nor sufficient, but instrumental for liberalism . They are just two of the many possible conceptions of liberal nationalism . The first point of argument concerns integration through language . Nationalism requires that persons who are already a member of nation, or who want to become members of nation, should learn the skill of communication in the national language(s) . For

1

Will Kymlicka, Liberalism, Community, and Culture, 1989, Chapter8–9, 162 ff .

A Liberal Justification of Nationalism

the sake of this principle, governments provide several language learning programs . But, why? To answer this question, we must understand the roles or functions languages fulfill in our society . What are we doing when we use a language? Sentences such as, “There is an apple on the table,” are propositions that describe the state of affairs in our world . Such a descriptive function is very important for our communication . On the other hand, languages have creative functions as well . When we say, “Good morning,” we don’t describe any states of affairs in the world, Rather, we try to create a positive relation with the person we are speaking to . Another example comes by way of prescriptions such as, “Don’t steal this,” Such prescriptions try to create a norm that is shared among people who communicate with each other, as well .2 Both functions of language are important . However, for the sake of the discussion here, the creative aspect is more significant . People learn what is permitted, what is forbidden, what is admired, what is despised, and what is envied in society through language . All individuals accept or reject such normative opinions and ideas in their society . However, to do this, they have to learn its language(s) in advance . The formation and transmission of normative ideas are carried out through language . Therefore, in order to join into and engage with society, it is essential for a person to learn the languages that are shared in a society . We may safely say that a society is defined by its languages . In the modern history of nation-building, learning of national languages and the establishment of mass media played an important role . They remain important even today . If immigrants are not given opportunities to learn the national language(s), they will be left at a great disadvantage in academic careers or in the search for employment in mainstream society . Their perspective of life or their range of free choices are, then, significantly narrower than those of the members of the mainstream . This is unfair3 . Liberal nationalism must adopt language-related policies, including elementary language education and multiculturalism, in order to integrate the nation, especially persons who become members of the nation, such as infants and immigrants . If a government succeeds in integrating a nation through its national language(s), the members of this nation can enjoy freedom and equality in society . However, there are arguments one might raise against the perspective presented above . Are languages really neutral instruments of communication? Are there more and less liberal languages? Does not the ability of language to achieve a free and equal society differ among different languages? If so, a nationalism based on an “illiberal” language cannot be an instrument of egalitarian liberalism . I speculate that the ability to achieve a free and equal society does not differ significantly among languages . Of course, much of the vocabularies of liberal democracy Charles Taylor, Human Agency and Language: Philosophical Papers 1, 1985, Chapter9–10, 215 ff . Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, 1995, Chapter5, 75 ff . Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, 2001, Chapter10–11, 203 ff . 2 3

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came from Western languages such as English, French, German, Latin, and Greek . However, Japan also tried to express the vocabularies and ideas of liberal democracy in the Japanese language during the Meiji era . It was a tough task . However, I believe that the Japanese people succeeded anyway . My argument for liberal nationalism is achievable in any language . 3.

Integration through institutions of mutual trust

The second point of argument concerns integration through the development of mutual trust . Nationalism is a modern project for establishing the nation-state . Modern nation-states are concerned with promoting the welfare of the people they govern . So, modern nation-states aim to become welfare states . Of course, human welfare is emphasized within different communities, such as families or neighborhoods, as well . However, in modern societies, the role of the state is significant . Moreover, any welfare institution requires a strong sense of motivation among people towards the commitment to reciprocity among members, in order for such institutions to be sustainable . Reciprocity of welfare supply requires a much stronger sense of motivation among parties than economic reciprocities such as exchanges in trade, because reciprocity of welfare supply is fairly long-term and uncertain . Motivation in the family may be based on affection . Affection is one of the strongest human attributes . It is often strong enough to motivate family members to supply welfare . East Asian civilization, in particular, demonstrates such a tendency . Further, regardless of eastern or western civilizations, religion was a very important welfare provider in pre-modern societies . Religious faith was a very strong source of motivation as well . In Japan, Buddhist temples often educated children and helped poor people . However, in modern society, religions lost much of the power they possessed earlier . Then, nationalism as a secular civil religion emerged as an alternative . Loyalty to the nation is a kind of religious faith . Nationalism often requires mourning ceremonies . Prayers and anthems are important as well . Human beings must need some such strong motivation in order to help each other . Nationalism has replaced religious faith . However, the basic structure has remained the same between premodern and modern societies . On the other hand, some major differences exist between premodern communities and modern nations as welfare providers . One important difference is that the national community is an imagined community . We do not have face-to-face relations with almost all members of our own nation . Even if the nation is a fiction or a work of imagination, it is necessary to motivate some kinds of large-scale institutions of mutual aid in modern society . We are morally obliged to pay taxes or health insurance premiums to aid our co-nationals . These moral obligations are transformed into legal obligations through the policies of modern welfare states . If I suffer serious predicaments such as

A Liberal Justification of Nationalism

poverty or disease, I can expect that my co-nationals will help me through our government . One of the important aspects of the long-term and uncertain reciprocity of nationalism is that, even if I will never have been helped by such institutions throughout my lifetime, it does not mean they will have violated the duty of reciprocity . For those who are rich or healthy, this must be a very tough commitment .4 Again, one might argue against my perspective . Why should the institutions of mutual aid be carried out at the national level? It could be possible to do so at the global or local levels . To such an argument, liberal nationalism replies as follows . The first counterargument arises against the attack from globalism . Liberal nationalism points to the creative function of language mentioned above . Languages shape our normative ideas . What is a minimally decent life? What is our basic need? What should we make equal, and what should we leave to personal liberty? The answers to these questions are proposed through political or democratic deliberations and daily conversations . In any case, these practices are often shared among co-nationals . I say “often,” but not “always .” Some ideas of welfare or humanity are capable of being shared by people all over the world . Such ideas should be realized through the cooperation of the international community . However, there remain many things to be undertaken by national governments . The second counterargument arises against the attack from localism . This attack relies on the theory of the “framework for utopia” of Robert Nozick5 or the “liberal archipelago” of Chandran Kukathas6 . According to them, there should be a variety of communities and associations, including socialist and libertarian ones . Moreover, each individual should be able to choose among these options . A homogeneous society impoverishes individual freedom, but plurality and variety enrich and promote it . Against these arguments, liberal nationalism points out the effect of the welfare magnet . If socialist and libertarian communities are located side by side, rich people will move to the libertarian community, and poor people will move to the socialist community . This results in the financial collapse of the socialist community .7 Nozick and Kukathas may be willing to accept this result because people still have the liberty to establish a socialist community again . However, I think this is not a very realistic scenario . I also think it is not a good idea to produce social fragmentation between the rich and poor . Of course, plurality and variety of conceptions of the good are important . However, in my opinion, they should be achieved amidst the coexistence of people from different social backgrounds, neither in the archipelago nor in gated-communities .

David Miller, Market, State and Community: Theoretical Foundation of Market Socialism, 1989, Chapter9, 227 ff . 5 Robert Nozick, Anarchy, State and Utopia, 1974, Chapter10, 297 ff . 6 Cf . Kukathas, Chandran, The Liberal Archipelago: A Theory of Diversity and Freedom, 2003 7 Paul E . Peterson and Mark C . Rom, Welfare Magnets: A New Case for a National Standard, 1990, 13 ff . 4

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In any case, the effect of the welfare magnet may work when the cost of movement for people is low enough . Welfare policy might have to be homogeneous within the area in which the effect of the welfare magnet operates . In order to prevent people from escaping across borders, governments need to adopt welfare policies similar to those of other government near-by . Governments do not have the freedom of choice among welfare policies . On the other hand, if this cost is high enough, a variety of welfare policies may be possible . However, what is the cost of movement of people? I think that the differences of language, culture, food, and public institutions are important . Many of these differences are drawn on the basis of national borders in the present world . Differences of national cultures make it possible for governments to adopt independent welfare policies . Let me now locate my argument in relation to the existing literature of social philosophy . My argument is similar to those of Will Kymlicka, David Miller, and Yael Tamir8, and far from those of Robert Nozick and Chandran Kukathas . I believe that the argument of the second group is philosophically more exciting and interesting . However, I feel that the first group’s standpoint is more feasible and prudential . 4.

Consequentialist perspective

I will now defend liberal nationalism from a slightly different perspective . My arguments thus far have remained within the category of deontology . However, I now turn to the field of consequentialism . I argue not only that liberal nationalism is right in terms of deontology, but also that it is prudential in terms of consequentialism . Adopting a combination of liberal nationalism and liberal egalitarianism is an important and useful strategy for nation-states to achieve long-term prosperity . Regardless of different civilizational origins, several countries and empires flourished and declined because of immigrants . Many talented persons escape from countries that are extremely ethnocentric or racist . A good example of this are the Jewish people who fled from the regime of the German Nazis . Such kinds of brain drain cause a decline of national strength . On the other hand, an extremely large-scale inflow of immigrants makes a society unstable . Each society has its own capability of absorbing immigrants . This is the capability of the nation-state implementing policies of liberal nationalism and multiculturalism . Accepting immigrants in numbers beyond the limits of this capability makes a society fragile and unstable, because of racist backlashes or social fragmentation . This can be a cause of decline of nation-states as well . Therefore, governments

8

Cf . Yael Tamir, Liberal Nationalism, 1993

A Liberal Justification of Nationalism

must accept the best number and kind of immigrants, depending on the capabilities of each society . This is a very difficult judgement in the realm of public policy .9 Here again, there might be some arguments against my proposal . For example, some would insist that I too strongly claim priority of national interests and national strategy over universal humanity . Even if it is not desirable from the perspective of national interest, we should respect humanity first of all . For example, we should delightfully accept refugees who are politically persecuted and/or suffer serious predicaments in the country of their origin . I think these arguments regard national interests as strategies aimed at something very narrow and short-term . National interests do not only take the form of economic gain . Even if accepting some refugees reduced the GDP of a country in a particular year, it would be a good strategy for the nation if it would result in promoting the national reputation of that country in the international society in the long term . Consequentialism and prudence should interpret national interests and strategies from a broader perspective . 5.

Japanese perspective

Finally, I wish to mention the prospects for the future of Japanese liberal nationalism . I speculate that it is necessary for Japan to accept more immigrants in order to achieve or maintain prosperity . In the international society, Japan is infamous for its low capability of integrating immigrants . Japan is regarded as one of the most exclusive nations in the world . Certainly, Japanese capability of integrating immigrants is lower than multicultural countries such as America, Canada, Australia, and New Zealand, or many European countries such as Britain, France, and Germany . If Japan accepts immigrants at the rates that such countries currently do, Japanese society would fall into chaos . However, if Japan does nothing in this direction in the current moment, it must gradually decline . First of all, Japan must improve its education programs in the direction of multiculturalism and must promote its social capability of integrating immigrants . In particular, elimination of xenophobia and racism are important steps . To do so, Japanese people should learn more about the cultural plurality of our world . Further, Japan should accept the talented persons it requires . One of the industries that may be multiculturalized first in Japan could be healthcare . It is probable that Japan will accept a large population of doctors and nurses from other countries in the future . Many healthcare workers from the Philippines, Indonesia, and other countries will cooperate within Japanese institutions . If Japanese medical personnel, or the Japanese people in general,

9

Cf . Amy Chua, Day of Empire: How Hyperpowers Rise to Global Dominance – And Why They Fall, 2007

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do not gain enough knowledge of Christianity, Islamism or Hinduism, they will not be able to carry out their job properly . In order for the prosperity of Japan as a nation-state to last for a long time, Japan needs to promote policies of multiculturalism and accept talented persons . Moreover, immigrants must be accepted as equal co-nationals . They must not be treated as second-class citizens . They must become integrated into the Japanese language and Japanese institutions of mutual aid as complete co-nationals of the Japanese society . Takayuki Kawase Associate professor of philosophy of law in the faculty of law, politics and economics, Chiba University, Japan . Address: 1–33 Yayoicho, Inage, Chiba 26–8522, Japan, E-mail: kawase@chiba-u .jp

Deliberative Democracy as Quasi-Pure Procedural Justice Epistemic value in Jürgen Habermas SHINICHI TABATA

Abstract

This article explores how deliberative democracy can track rightness based on Jürgen Habermas’s conception . David Estlund criticizes deliberative democracy on the grounds that it can never guarantee the right outcomes because it contains no procedural-independent criteria, such as pure procedural justice . In order to produce the right results, democracy should contain procedural-independent criteria, such as imperfect procedural justice . However, according to Habermas’s self-understanding, his conception is not an instance of pure procedural justice . I demonstrate that his conception is characterized as an example of quasi-pure procedural justice, which can indirectly track rightness . His conception contains epistemic value in a different way from the case of imperfect procedural justice . Deliberative democracy, epistemic democracy, David Estlund, Jürgen Habermas, procedural-independent criteria, quasi-pure procedural justice Keywords:

Since David Estlund argued for the necessity of the truth in democratic theory, the issue of whether democracy can track the truth has become recognized as an important issue in democratic theory .1 Many theorists, who are generally called epistemic demFirst, Estlund argued for the necessity of the truth in his articles; see David Estlund, Making Truth Safe For Democracy in: The Idea of Democracy, ed . David Copp/Jean Hampton/John E . Roemer, 1993, 71–100, and David Estlund, Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority, in: Deliberative Democracy: Essays on Reason and Politics, ed . James Bohman/William Rehg, 1997, 173–204 . Finally, he developed stronger arguments in the sense of the commitment to the truth in David Estlund, Democratic Authority: A Philosophical Framework, 2008 . In this article, I mainly address the discussion in Democratic Authority . 1

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ocrats, have attempted to answer this question positively .2 In this context, deliberative democracy is sometimes criticized as a non-epistemic conception .3 When deliberative democracy is criticized by epistemic democrats, it is understood as an example of pure procedural justice, which has no procedural-independent criteria for the right results . Epistemic democrats argue that if democracy could produce the right outcomes, it should contain procedural-independent criteria . In other words, democracy should be an example of imperfect procedural justice . However, according to his own understanding, Habermas’s conception is not an instance of pure procedural justice . He defines his own conception as between pure procedural justice and imperfect procedural justice . He contends that we can presume the rationality of the outcome in deliberative democracy in a different way from the case of imperfect procedural justice . In this article, I demonstrate that it is possible for deliberative democracy to produce the right results based on Habermas’s conception . First, I clarify the epistemic criticisms of deliberative democracy (understood as pure procedural justice) . Next, responding to the criticisms, I contend that deliberative democracy has probability of producing the right results without procedural-independent criteria . I argue that deliberative democracy is characterized as an example of quasi-pure procedural justice, and conclude that deliberative democracy can indirectly track rightness based on citizens’ practice of self-legislation .

For an early example, see Christian List and Robert E . Goodin, Epistemic Democracy: Generalizing the Condorcet Jury Theorem, Journal of Political Philosophy 9 (2001), 277–306 . List and Goodin attempt to answer the question of the necessity of truth using jury theorem . For recent representative examples, see Fabienne Peter, Democratic Legitimacy, 2008, Hélène Landemore, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many, 2013, and Robert B . Talisse, Democracy and Moral Conflict, 2009, Peter attempts to answer the question of necessity of truth based on social epistemology, Landemore, does so using DTA theorem, and Talisse does so based on the philosophy of pragmatism, especially that of Charles Sanders Peirce . 3 Deliberative democrats often overlap with epistemic democrats . Therefore, some theorists argue that “an epistemic turn” occurs in deliberative democracy . See Hélène Landemore, Beyond the Fact of Disagreement? The Epistemic Turn in Deliberative Democracy, Social Epistemology, 31 (2017), 277–299, and Nadia Urbinati, Democracy Disfigured: Opinion, Truth, the People, 2014 . 2

Deliberative Democracy as Quasi-Pure Procedural Justice

1.

Epistemic criticism of deliberative democracy

1.1

Liberal criticism of deliberative democracy

Many theorists criticize deliberative democracy on the grounds that it never guarantees the right outcomes .4 The reason is that deliberative democracy is an example of pure procedural justice . Pure procedure justice, which is John Rawls’s term, is defined as follows; [P]ure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed . 5

The point is that pure procedural justice regards any result as right when it is a result of fair procedure . Deliberative democracy is understood as an example of pure procedural justice because the political process based on deliberative democracy has no procedural-independent criteria for the right results . Instead, “the validity of the outcome of deliberation solely depends on the characteristics of actual deliberation as a reasonable procedure .”6 According to this understanding, liberal theorists have criticized deliberative democracy as too formalistic and unable to generate the right decisions .7 The most important problem for them is that the core values of liberalism, such as the individual rights, will not be respected . As a result of this anxiety, liberals generally intend to restrict democracy externally . Based on the commitment to the liberal values, such as the respect for the person, the scope of democratic decisions is limited . For that reason, Ronald Dworkin argues that democracy should only be connected to arguments of policy that “justify a political decision by showing that the decision advances or protects some collective goal of community .”8 To put it another way, democracy must not

Of course, some democratic theorists consider that the evaluation of rightness is not important . For elaboration from such a viewpoint, see, Maria Paula Saffon/Nadia Urbinati, Procedural Democracy, the Bulwark of Equal Liberty, Political Theory 41(2013), 441–481 . 5 John Rawls, A Theory of Justice, 1971, 86 6 Stefan Rummens, Democratic Deliberation as the Open-Ended Construction of Justice, Ratio Juris 20 (2007), 335–54, 336 7 For the most famous examples, see Charles Larmore, The Foundations of Modern Democracy: Reflections on Jürgen Habermas, European Journal of Philosophy 3 (1995), 55–68, and Charles Larmore, The Moral Basis of Political Liberalism, The Journal of Philosophy 93 (1999), 263–78 . Also see, Jon Mahoney, Rights Without Dignity? Some Critical Reflections on Habermas’s Procedural Model of Law and Democracy . Philosophy and Social Criticism 27 (2001), 21–40 . 8 Ronald Dworkin, Taking rights seriously, 1977, 82; Cf . Ronald Dworkin, Equality, Democracy, and the Constitution: We the People in Court, Alberta Law Review 28 (1990), 324–45 . 4

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be connected to arguments of principles, which “justify political decision by showing that the decision respects or secures some individual or group right .”9 However, deliberative democrats can respond to this criticism, based on the concept of deliberation . The most important characteristic of deliberative democracy is that political process is interpreted as deliberative . Deliberations are regarded as the process of exchanges and examinations of reasons . As deliberative democrats presume that deliberations themselves are the procedures that can recognize good reasons, they argue that deliberations can produce the right results . According to the two-track models, political process consisting of political systems and public spheres shapens a sequence of deliberations, so that it can produce the right political decisions . 1.2

Estlund’s criticism of deliberative democracy

Estlund criticizes this response from deliberative democracy theorists .10 He denies that deliberations produce the right decisions because he never regards deliberation as “a reason recognizing procedure .”11 No matter how many exchanges and examinations of reasons occur, it is uncertain whether the right decisions will be produced . The reason is that we have no procedural-independent criteria to evaluate the results that the exchanges and examinations of reasons produced . If the procedure is held to recognize the better reasons, those reasons are being counted as better by procedure-independent standards . Then to say that the outcome reflects the better reasons might only mean that the outcome meets or tends to meet that same procedure-independent standard .12

The point is that we can never evaluate whether the outcome is right or not without procedural-independent criteria . In pure procedural justice, prior to procedure, we cannot judge anything as right . Rather, rightness seems to be understood merely as a construction of the procedure . Estlund argues that rightness should be understood differently . He contends that rightness should be evaluated more substantially, and therefore, the evaluation of rightness needs procedural-independent criteria .13 If procedures could make the right decisions, they should have procedural-independent criteria . This means that democ9 Ronald Dworkin, (footnote 8), 82 10 In this article, I address Estlund’s criticism among many criticisms . For other criticisms, see Jason Bren-

nan, Against Democracy, 2016, chapter 3 . 11 Estlund (footnote 1), 100 12 Estlund (footnote 1), 100 13 Some deliberative democrats admit that deliberative democracy is an example of pure procedural justice, but argue that deliberative democracy as pure procedural justice can produce the right outcomes . Such theorists are committed to John Dewey’s social inquiry . See, James Bohman, Epistemic Value and

Deliberative Democracy as Quasi-Pure Procedural Justice

racy should be an example of imperfect procedural justice according to Rawls’s term . Imperfect procedural justice is defined as follows . “The characteristic mark of imperfect procedural justice is that while there is an independent criterion for the correct outcome, there is no feasible procedure which is sure to lead to it .”14 Imperfect procedural justice admits not only procedural-independent criteria, but also that the outcome of procedure is fallible . One of examples is criminal trials, where “the injustice springs from no human fault but from a fortuitous combination of circumstances which defeats the purpose of the legal rules .”15 For Estlund, democracy is legitimate decision procedures if and only if it has procedural-independent standards, and gives people some expectation that it will make the right decisions . Imperfect procedural justice is fallible, and therefore, democracy is not required to make the right decisions at all times . However, if democracy is a legitimate decision procedure, it has at least a relatively high probability of producing the right decisions . Democracy should be a feasible procedure that results in the right decisions being made above a certain threshold .16 Estlund uses the term epistemic value to refer to this “tendency to produce decisions that are better or more just by standards that are independent of the actual temporal procedure that produced them .”17 To contain epistemic value, democracy has procedural-independent criteria as an example of imperfect procedural justice . 2.

Habermas’s conceptions of deliberative democracy

2.1

Between pure procedural justice and imperfect procedural justice

In relation to rightness, deliberative democracy is criticized as a non-epistemic conception . For liberals, it means that democracy cannot guarantee the individual rights . For Estlund (or for epistemic democrats), it means that democracy gives people no expectation to make the right decisions . Both liberals and Estlund consider it as a problem that deliberative democracy contains no procedural-independent criteria, and therefore, it is an instance of pure procedural justice .

Deliberative Democracy, The Good Society 18 (2009), 28–34, and Elizabeth Anderson, The Epistemology of Democracy, Episteme: A Journal of Social Epistemology 3 (2006), 9–24 . However, in this article, these responses are not addressed, because I am committed to the thought that the evaluation of rightness is required to contain some sort of criteria . In this sense, I share some basic commitments with Estlund, as does Habermas . 14 Rawls (footnote 5), 86 15 Rawls (footnote 5), 86 16 Estlund argues that it is necessary for democratic arrangement to hold the probability of producing the right decision better than random . See, Estlund (footnote 1), chapter 9 . 17 Estlund (footnote 1), 97

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However, Habermas himself never defines his own conception as an instance of pure procedural justice . He clearly argues that deliberative democracy cannot completely satisfy the conditions of pure procedural justice .18 In this section, I make clear Habermas’s own conception . First, I explain that his conception is not an example of pure procedural justice . After that, I demonstrate that deliberative democracy can track rightness according to the system of rights . The first point is whether deliberative democracy is actually an example of pure procedural justice . Habermas located his own conception between pure procedural justice and imperfect procedural justice as follows . It is imperfect because the democratic process is established so as to justify the presumption of a rational outcome without being able to guarantee the outcome is right . On the other hand, it is also a case of pure procedural justice, because in the democratic process no criteria of rightness independent of the procedure are available; the correctness of decisions depends solely on the fact that the procedure has actually been carried out .19

There are two important points in this quotation . First, there are no procedure-independent criteria in deliberative democracy . In this sense, deliberative democracy has the property of pure procedural justice . However, for Habermas, it does not mean that deliberative democracy is an instance of pure procedural justice because deliberative democracy does not fulfill the conditions of pure procedural justice . This is related to the second point, in which Habermas argues that deliberative democracy has “the presumption of a rational outcome without being able to guarantee the outcome is right .” It is probable that deliberative democracy will produce the right decisions . This means that deliberative democracy has epistemic value . In this sense, deliberative democracy has the property of imperfect procedural justice . Procedures of deliberative democracy “presumably promote correct results, but they cannot guarantee that this is the case .”20 Whereas deliberative democracy is pure procedural justice in the sense that there are no procedural-independent criteria, it is imperfect procedural justice in the sense that we can presume that it produces the right decisions .

Jürgen Habermas, Towards a Communication-Concept of Rational Collective Will-Formation . A Thought-Experiment, Ratio Juris 2 (1989), 144–54, 150 19 Jürgen Habermas, Reply to Symposium Participants, Cardozo Law Review 17 (1996), 1477–1557,1494–5 20 Habermas (footnote 18), 150 18

Deliberative Democracy as Quasi-Pure Procedural Justice

2.2

The system of rights as criteria for the right results

Habermas defines his own conception as between pure procedural justice and imperfect procedural justice . This means that deliberative democracy has no procedural independent criteria, but has epistemic value . However, can procedures without criteria produce the right results? Estlund clearly denies this possibility . If procedural-independent criteria would be necessary to evaluate the outcome, deliberative democracy could not produce the right outcomes . We must consider whether procedural-independent criteria are necessary for rightness . It is essential to recall that Habermas never argues that there are no criteria for the right results in deliberative democracy . He merely explains that deliberative democracy contains no procedural-independent criteria for them . The question is what the criteria of deliberative democracy are . His answer is the system of rights, derived from the co-originality of private and public autonomy . The co-originality of private and public autonomy is the principle of deliberative democracy .21 First, private autonomy means individual liberties of free choice, which individual rights make possible . It is the result of modern commitment to the medium of the law . This commitment requires “a system of statuses to ensure that every future member of the association counts as a bearer of individual rights’ .22 The law presupposes the protection of the status of individuals . For Habermas, individual liberties ensured by individual rights are the formal characteristic of the law, because the law presupposes an agent who can freely choose everything that is not forbidden . Second, public autonomy implies democratic self-legislation . The law is presupposed as a medium in modern society . However, it is important that the law not only enables private autonomy but also restricts it by narrowing the range of choices . The full recognition of private autonomy “requires that the constraints that are imposed on their private autonomy are not seen as paternalistically imposed external constraints .”23 At this point, public autonomy is required . It is not until the constitutional state is democratic that the protection of private autonomy is sufficient . In private autonomy, people are merely the addressees of the law . When they make their own law, public autonomy is materialized . To avoid paternalism, citizens must be not only the addresses of the law, but also the authors of law . By becoming the author of the law, that is to say, through the democratic self-legislation, citizens are required to recognize each other’s private autonomy .

For an elaboration of Habermas’s co-originality thesis, see Stefan Rummens, Debate: The Co-Originality of Private and Public Autonomy in Deliberative Democracy, Journal of Political Philosophy 14 (2006), 469–81 . 22 Jürgen Habermas , Constitutional Democracy: A Paradoxical Union of Contradictory Principles?, Political Theory 29 (2001), 766–81, 776 23 Rummens (footnote 6), 338 21

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The co-originality of private and public autonomy means the requirements that both the commitment to the law, private autonomy, and the creation of law by citizens themselves, public autonomy, are satisfied at the same time . From this principle, the abstract system of rights is derived as follows . 1 . 2 . 3 . 4 . 5 .

Basic rights that result from the politically autonomous elaboration of the right to the greatest possible measure of equal individual liberties . Basic rights that result from the politically autonomous elaboration of the status of a member in a voluntary association of consociates under law . Basic rights that result immediately from the actionability of rights and from the politically autonomous elaboration of individual legal protection . Basic rights to equal opportunities to participate in processes of opinion- and will-formation in which citizens exercise their political autonomy and through which they generate legitimate law . Basic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded, insofar as the current circumstances make this necessary if citizens are to have equal opportunities to utilize the civil rights listed in (1) through (4) .24

The system of rights is required to keep the relationship in which private autonomy and public autonomy are mutually supportive . When citizens enact the law, they must meet these requirements . In this sense, the system of rights is, first of all, the requirement in the enactment . As each of these basic rights is too abstract, citizens must interpret the system of rights in day-to-day politics . What we are concerned with here is why the system of rights is not considered as procedural-independent criteria . The reason is that these criteria are derived from within the citizens’ practices of self-legislation .25 By identifying the system of rights, Habermas merely makes the presuppositions of citizens’ practices explicit . For that reason, the system of rights is not procedural-independent . The system of rights is internal to citizens’ practice, so that deliberative democracy does not qualify for a case of imperfect procedural justice . In other words, the system of rights is procedure-dependent criteria . The co-originality thesis which requires that public autonomy and private autonomy are satisfied at once is the most essential commitments for citizens’ self-legislation . This means that Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, 1996, 122–3 25 Habermas calls this method ‘reconstruction .’ See, Daniel Gaus, Rational Reconstruction as a Method of Political Theory between Social Critique and Empirical Political Science, Constellations 20 (2013), 553–570, Antti Kaupinen, Reason, Recognition, and Internal Critique, Inquiry 45 (2002), 479–98, and Markus Patberg, Supranational Constitutional Politics and the Method of Rational Reconstruction, Philosophy and Social Criticism 40 (2014), 501–21 . 24

Deliberative Democracy as Quasi-Pure Procedural Justice

the system of rights derived from these commitments is constitutive rules of democratic self-legislation .26 “On Habermas’ theory, a system of rights is constitutive of democratic procedures of rational collective opinion- and will-formation in the public sphere .”27 Therefore, as far as citizens are committed to self-legislation, they have to be committed to the system of rights . It is important that deliberative democracy does not require additional new commitments because the commitment to democracy entails the commitment to the system of rights . In this sense, the system of rights does not exist outside democratic procedure, but within democratic practices .28 In deliberative democracy, the criteria for the right results are derived from the essential commitment to deliberative democracy, and therefore, depend on the democratic procedures themselves . 2.3

Fallibilism and Reflectivity

Deliberative democracy contains not procedural-independent criteria, but procedural-dependent criteria, which are constituted by the system of rights . According to these criteria, deliberative democracy can contain epistemic value . However, deliberative democracy cannot always produce the right results . Epistemic value means that it is probable that the procedures will produce the right decisions . Therefore, deliberative democracy contains epistemic value, but at the same time, it is ineluctably fallible . Although deliberative democracy has the system of rights as criteria, citizens cannot always interpret these principles rightly or correctly . In some cases, we have no sufficient resource or information for the interpretations . In other cases, we have enough time for the judgment . Therefore, deliberative democracy must be open to “the possibility that provisionally justified views might have to be revised in the light of new information and argument .”29

About constitutive rules, see John R . Searle, Speech Acts: An Essay in the Philosophy of Language, 1969, 33–42 27 James Gledhill, The Ideal and Reality of Epistemic Proceduralism, Critical Review of International Social and Political Philosophy 20 (2017), 486–507, 499 28 Rummens (Footnote 6), 338; Rummens does not use the term quasi-pure procedural justice, but his understanding of Habermas’s conception is similar to my understanding . The difference is that I distinguish the dimension of politics from the dimension of morality . Rummens obscures the difference between politics and morality . In Habermas, universalizability principle only partly applies to the latter . However, Rummens requires universality principle is applied directly to politics . According to Rummens’s understanding, universality principle functions as a procedural-independent criterion . Cristina Lafont also focuses on ‘the existence of generalizable interests’ which universal principle implies, and argues that deliberative democracy must be imperfect procedural justice for tracking rightness . See, Cristina Lafont, Procedural Justice? Implications of the Rawls-Habermas debate for discourse ethics, Philosophy and Social Criticism 29 (2003), 163-181 . 29 Habermas (footnote 24), 178 26

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The reason for fallibilism is that “[t]he universal presuppositions of argumentation can, in any case, only approximately be fulfilled .”30 Deliberative democracy interprets the political process as deliberative . This is the requirement of the basic rights 4, which are materialized by public autonomy . However, the universal presupposition means ‘universal access, an equal right to participate and equality of opportunity in making contributions, the participants’ orientation toward reaching understanding, and freedom from structural coercions,’31 and therefore, the complete fulfillment of these requirement is impossible . We have no other choice but to be satisfied with approximate fulfillment . This approximate fulfillment requires that the political process is reflective in the sense that citizens enact the law, and at the same time, evaluate and judge the content of what they enacted as valid for the time being . The reflective political process is possible to create the circular relationship between the evaluation and the enactment of the law . First, citizens enact the law of concrete content, fulfilling the requirements that the system of rights demands . Second, citizens examine and judge the enacted laws in political process in reference to the system of the rights32 . Therefore, the system of rights is not only the requirement in the enactment but also the criteria for the evaluation and judgment of the law . As citizens enact the law and evaluate its content according to the system of rights, deliberative democracy has the probability of producing the right results . The reflective political process has epistemic value in the longer term, allowing for the possibility that the enacted laws, accepted as valid for the time being, be revised with access to new evidences or other information . Deliberative democracy functions as a learning process, in which the political process produces more right results over time, including much more information, new evidences, and other perspectives . Estlund argues that epistemic value requires procedural-independent criteria . Now, however, epistemic value is not limited to imperfect procedural justice, because we can choose another route to track rightness with procedural-dependent criteria . 3.

Deliberative democracy as quasi-pure procedural justice

3.1

Rawls’s quasi-pure procedural justice

As above, deliberative democracy is located between pure procedural justice and imperfect procedural justice . On the one hand, deliberative democracy contains proce-

Habermas (footnote 24), 178 The universal presupposition is as follows; ‘universal access, an equal right to participate and equality of opportunity in making contributions, the participants’ orientation toward reaching understanding, and freedom from structural coercions .’ Habermas (footnote19), 1506 32 Usually, the evaluation and the enactment come together in democracy . 30 31

Deliberative Democracy as Quasi-Pure Procedural Justice

dural-dependent criteria and, with reference to these criteria, also gives people some expectation that it makes the right decisions . On the other hand, its result is fallible and open to the possibility of revisions . What matters here is whether deliberative democracy has sufficient epistemic value, because epistemic democrats are expected to object that reflectivity cannot guarantee sufficient epistemic value . Just as deliberation without criteria can never guarantee the right results, reflectivity only cannot produce the right ones . Habermas can answer this objection by interpreting deliberative democracy as quasi-pure procedural justice .33 As far as I know, Habermas only once characterized deliberative democracy as quasi-pure procedural justice in Between Facts and Norms .34 . Deliberative democracy is not committed to reflectivity only, but to reflectivity with the system of rights (as criteria for the right outcomes) . In the following, I, first, clarify what quasi-pure procedural justice is in Rawls . Then, deliberative democracy as quasi-pure procedural justice tracks rightness in a different way from the case of imperfect procedural justice . Rawls introduces quasi-pure procedural justice when he explains the stages in applying a theory of justice to a real situation . He defines a notion of quasi-pure procedural justice as follows; “laws and policies are just provided that they lie within the allowed range, and the legislature, in ways authorized by a just constitution, has in fact enacted them .”35 Rawls’s concern here is the indeterminacy in the theory of justice . In applying a theory of justice, it is uncertain “which of several constitutions, or economic and social arrangements, would be chosen .”36 Therefore, “[i]nstitutions within the permitted range are equally just, because they are compatible with all the constraints of the theory .”37 The outcome of procedures is compatible with the constraints that are derived from a theory of justice . In quasi-pure procedural justice, by determining the constraints in advance, the intent is “to make sure, if possible, that the self-interest of social classes does not so distort the political settlement that it is made outside the permitted limits .”38 For that purpose, at least, it is required that citizens try to follow the rules, that are considered as constrains of justice . [I]f the law actually voted is, so far as one can ascertain, within the range of those that could reasonably be favored by rational legislators conscientiously trying to follow the

Habermas’s argument is considered to presuppose Bernard Peters’s distinction between pure procedural justice, quasi-pure procedure justice, and imperfect procedural justice . See, Bernard Peters, Rationalität, Recht und Gesellschaft, 1991, chapter 7, and Bernard Peters, On Reconstructive Legal and Political Theory, Philosophy and Social Criticism 20 (1994): 101–34 . 34 Habermas (footnote 24), 179: in addition, Habermas only once characterized deliberative democracy as quasi-pure procedural justice in his article . See, Habermas (footnote 18), 150 . 35 Rawls (footnote 5), 201 36 Rawls (footnote 5), 201 37 Rawls (footnote 5), 201 38 Rawls (footnote 5), 201 33

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principles of justice, then the decision of the majority is practically authoritative, though not definitive . The situation is one of quasi-pure procedural justice .39

The point is that the decision within the permitted range has practical rather than definitive authority . The reason is that the decision is not congruent with justice itself, but it is compatible with the constraints of justice . In quasi-pure procedural justice, this is because the decision is not directly made according to justice, but indirectly according to the rules that are considered as the constraints of justice . 3.2

Deliberative democracy as quasi-pure procedural justice

Rawls characterizes quasi-pure procedural justice as the compatibility with the constraints of justice . For Habermas, it is also important to distinguish rightness itself from the compatibility with the constraints . On the one hand, rightness itself is evaluated according to whether the procedure fulfills the universal presuppositions of deliberation . Since these presuppositions can only approximately be fulfilled, rightness itself is only the assumption in theory . On the other hand, the compatibility with the constraints means the result of institutionalized deliberations in democracies . Deliberations in the political process become institutionalized ones . Institutionalized deliberations are regulated by the formal rules; discussions in the political systems become deliberations by following the formal rules . The discussions in the congress, or in the courts are examples . Habermas argues that institutionalized deliberations never guarantee rightness, but rather justify the presumption that the outcomes are rational . The reason is that in institutionalized deliberations the decisions are not directly made according to the universal presuppositions of argumentation but indirectly, according to the rules that are considered as the requirements of deliberations . They[institutionalized deliberations] thereby insure only that decisions reached in conformity with procedure are “rationally acceptable” to citizens . They cannot, of course, guarantee “the truth .” Confronted with such a procedure, one can always insist on the difference between a valid outcome and an outcome that is rationally acceptable within an institutional framework .40

Deliberative democracy constituted as institutionalized deliberations cannot produce rightness itself, but they presume the rationality of the outcome in the sense that it is rationally acceptable given a certain institutional framework .

39 40

Rawls (footnote 5), 361 Habermas (footnote 19), 1508

Deliberative Democracy as Quasi-Pure Procedural Justice

Institutionalized deliberation is the result of the requirement of the basic right 4 . Therefore, through the interpretation of the system of rights, the rules that are considered as the requirements of deliberations are materialized in the political process . The system of rights is the core rules that constitute deliberative democracy . In this point, Habermas’s quasi-pure procedural justice is different from Rawls’s . For Rawls, a theory of justice is procedural-independent criteria for the constraints, which define the permitted range . Rawls contends that political process is generally the case of imperfect procedural justice, and considers quasi-pure procedural justice as a part of imperfect procedural justice .41 In contrast, for Habermas, deliberative democracy as quasi-pure procedural justice has no procedural-independent criteria because the system of rights as the core rules for the institutionalization is not procedural-independent criteria . In Habermas’s theory, quasi-pure procedural justice does not constitute a part of imperfect procedural justice, but means an original way to track rightness . Deliberative democracy as quasi-pure procedural justice presumes the rationality of the outcome . This does not mean that deliberative democracy can produce the right results directly, but that deliberative democracy can indirectly track rightness in the way that it follows the rules that are considered as the requirements of deliberations . Deliberative democracy indirectly tracks rightness with procedural-dependent criteria . 4.

Conclusion

I have argued that deliberative democracy can contain epistemic value with no procedural-independent criteria . Deliberative democracy is characterized as quasi-pure procedural justice, and, with procedural-dependent criteria, has the probability of producing the right decisions in a different way from the case of imperfect procedural justice . The significance of such an approach becomes clear, when one compares deliberative democracy as quasi-pure procedural justice to liberalism, or liberal democracy based on constitutionalism . Generally, in liberal democracy, the constitution constrains citizens’ practice of self-legislation . The reason is that the constitution is justified outside the (usual) political process . Rawls’s original position is a typical case . In contrast, the system of rights does not constrain citizens’ practice of self-legislation externally because the system of rights is internal to citizens’ practice of self-legislation . Epistemic democrats argue that, to track rightness, procedures should contain procedural-independent criteria . Now, however, another route to track rightness with procedural-dependent criteria have been shown . Here, the inquiry into epistemic value in democratic theory enters a new stage .

41

Rawls (footnote 5), 196

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Acknowledgments

An earlier version of this paper was given at IVR Japan International Conference at Doshisha University and parts of this paper were also given at PSA Annual International Conference 2018 at the University of Cardiff . I am grateful to all participants . I would like to thank Japan Society for the Promotion of Science for its generous funding of this research . Shinichi TABATA Japan Society for the Promotion of Science ( JSPS) Research Fellow (PD), The University of Tokyo, shin-tabata@toki .waseda .jp

Procedure-Based Substantive Equality Pure Procedural Justice and Property-Owning Democracy DAI OBA

Abstract

This paper examines two of John Rawls’s ideas that are rarely discussed in conjunction: pure procedural justice (PPJ) and property-owning democracy . Applied to matters of distribution, PPJ orders the establishment of fair procedures under which any private transaction can be considered just . It aims to secure equality without fixating on patterns of distribution . How such an approach is constituted and how it applies to different stages of theorisation are explored . Three components of PPJ and three guidelines for its institutionalisation are identified . As such, PPJ also provides a backbone to property-owning democracy . The understanding of property-owning democracy as an institution of PPJ helps us assess various interpretations and refinement of property-owning democracy . pure procedural justice, property-owning democracy, Rawls, deontic egalitarianism, distributive justice Keywords:

This paper examines and connects two of John Rawls’s ideas that are rarely discussed in conjunction: pure procedural justice and property-owning democracy . The idea of pure procedural justice (PPJ) regards any outcome to be just if it came about through a fair procedure . While the idea is often employed in discussions about democracy that focus on its procedural aspect,1 it also has important distributional implications . Applied to matters of distribution, PPJ orders the establishment of fair rules and fair background conditions under which any private transaction can be considered just .

E . g . David Estlund, Democratic Authority: A Philosophical Framework, 2008; Hélène Landemore, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many, 2013 1

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This paper demonstrates that a Rawlsian conception of PPJ is a uniquely attractive approach to ensure the equality of citizens without fixating on particular pattern(s) of distribution . I contend further that this approach characterises Rawls’s vision of a just institutional arrangement, namely, property-owning democracy . Property-owning democracy has recently been endorsed, often with some tweaking of its contents, by theorists of a broad political spectrum ranging from Basic Income enthusiasts and republicans to classical liberals .2 It might seem as if property-owning democracy is a mere decorative covering with which you can wrap your favoured set of policies . Against this suspicion, I argue that PPJ provides an important backbone to Rawls’s property-owning democracy . Understanding property-owning democracy as an institution of PPJ makes clear what property-owning democracy is while also explaining some reasons why theorists may find property-owning democracy a useful model to work with . The structure of this paper is as follows . The first three sections elaborate on different features of PPJ . Section 1 introduces the idea of PPJ and characterises it as a deontic theory with no pattern-fixation . Section 2 examines the function of PPJ by dissecting it into three constitutive components, namely, the direct rules of transactions, the constraints of background justice, and the adjustive interventions for preserving background justice . Section 3 discusses a somewhat different formulation of PPJ called quasi-pure procedural justice which is specific to concrete phases of theorisation about just institutional arrangements . Each section ends with a guideline for institutionalising PPJ: no pattern-fixation, full-functionality, and inheritance of the approach of PPJ and the relevant principles from higher-order procedure(s) . Section 4 explores the policy implications of PPJ at a practical and determinate level by connecting PPJ and property-owning democracy . The institutional guidelines identified in the preceding sections are used to test if property-owning democracy should be regarded as an institutionalisation of PPJ . Possible deviations from the model of property-owning democracy based on PPJ are briefly considered at the end . 1.

Distributive Justice as Pure Procedural Justice (PPJ)

This section introduces the idea of PPJ and explains its basic theoretical feature as a deontic approach with no fixation on patterns . This feature also explains some reasons why PPJ is attractive .

E . g . Satoshi Fukuma, Meaningful Work, Worthwhile Life, and Self-Respect: Reexamination of the Rawlsian Perspective on Basic Income in a Property-Owning Democracy, Basic Income Studies, 12:1 (2017), 1–10; Gavin Kerr, The Property-Owning Democracy: Freedom and Capitalism in the Twenty-First Century, 2017; Alan Thomas, Republic of Equals: Predistribution and Property-Owning Democracy, 2017 . 2

Procedure-Based Substantive Equality

To begin with, what is PPJ? It is a procedure of judgment where ‘what is just is specified by the outcome of the procedure, whatever it may be’ .3 It is distinguished from similar ideas of perfect and imperfect procedural justice, which possess an independent standard of judging what is just . By contrast, in PPJ, as in a fair gamble, any outcome is just ipso facto if it is a result of a fair procedure .4 In PPJ ‘the fairness of the circumstances transfers to fairness of the principles acknowledged’ or, in more general terms, to the fairness of the outcomes .5 This transfer of fairness is the source of PPJ’s persuasiveness . The argumentative force of such a transfer is perhaps most apparent in Rawls’s use of PPJ for selecting principles of justice . Rawls designs the original position so that any agreement reached in it can be considered as representing justice .6 Here, the persuasiveness of the original position procedure rests on the fact that it is designed as a fair circumstance for the parties understood as free and equal participant in social cooperation .7 However, the focus of the present paper is on the use of this idea in relation to how the principles of justice regulate the basic structure . Let us briefly review Rawls’s two principles of justice .8 The first principle defines equal basic liberties for all . Every citizen has a claim to a fully adequate scheme of liberties compatible with everyone having the same scheme . The second principle regulates social and economic inequalities with two subordinate principles . One is the socalled principle of fair equality of opportunity . It requires that inequalities be attached to offices and positions that are open to all in a substantial sense . Thus, people from all sections of society must have an equal level of access to positions of privilege . The other is the difference principle . It requires that inequalities work to maximise the expectations of the least-advantaged members of society . Inequalities are considered just only when these two conditions are satisfied . Also, the principles are in the relation of lexical ordering where the first principle is prior to the second, and the principle of fair equality of opportunity is prior to the difference principle . What may be less well-known is that the two principles of justice are said to function as a case of PPJ . Rawls explains this claim by way of contrasting it with principles based on allocative justice .9 Allocative justice is concerned with the question of how to distribute or allocate given resources based on the needs, desires, or preferences of individuals . Importantly, however, it does not consider how people cooperate as members of society .10 Utilitarianism is such a principle . By contrast, Rawls’s two principles address the different question of how to order the basic structure of society so that a 3 John Rawls, Political Liberalism: Expanded Edition, 2005, 73 (Henceforth referred to as PL) 4 John Rawls, A Theory of Justice: Revised Edition, 1999, 75 (Henceforth referred to as TJ) 5 PL, 259 6 TJ, 104; PL, 72 7 John Rawls, Justice as Fairness: A Restatement, ed . Ellen Kelly, 2001, 80 (Henceforth referred to as JFR) 8 JFR, 42–44 9 JFR, 170–171; TJ, 77 10 JFR, 50

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fair system of social cooperation can be maintained for free and equal citizens .11 For Rawls, the main concern is whether the major institutions and background conditions of society are fair; the question of who gets what is derivative . Rawls makes it clear that his principles of justice, including the difference principle, apply to the basic structure . He says, the two principles of justice as they work in tandem incorporate an important element of pure procedural justice in the actual determination of distributive shares . They apply to the basic structure and its system for acquiring entitlements; within appropriate limits, whatever distributive shares result are just . A fair distribution can be arrived at only by the actual working of a fair social process over time in the course of which, in accordance with publicly announced rules, entitlements are earned and honored . These features define pure procedural justice .12

So, Rawlsian distributive justice does not directly target specific individuals, transactions or distributive outcomes . Instead, its primary business is to set up and maintain fair procedures such that social cooperation and its outcomes can be considered fair if the procedures are correctly followed .13 In this way, the two principles regulate society in a purely procedural manner . To employ a useful distinction, PPJ is a deontic approach toward distributive justice as opposed to a telic one . According to Derek Parfit, telic egalitarianism values the equality of distribution in itself, whereas deontic egalitarianism aims for the equality not because that is desirable as the outcome but for other moral reasons .14 Specific to a deontic theory is focusing not on a particular outcome ‘but the way in which it was produced’ .15 Rawlsian PPJ is a typical case of deontic egalitarianism as it focuses on the justice of procedures where citizens can regard and treat each other as free and equal participants in social cooperation .16 An important implication of taking the deontic approach is that PPJ does not fixate on particular distributive patterns . Here I wish to make a distinction between causing a pattern and fixating on it . PPJ may tend to cause certain outcomes, but it never aims for a particular outcome in itself . Causing a certain pattern of distributions remains either derivative or instrumental to the aim of making social procedures fair for free and equal citizens .

TJ, 6, 12 PL, 282 TJ, 76 Derek Parfit, Equality or Priority? in: The Ideal of Equality, eds . Matthew Clayton and Andrew Williams, 2002, 84 15 Ibid ., 90 16 JFR, 39, 57; cf . Jonathan Quong, Left-Libertarianism: Rawlsian Not Luck Egalitarian, Journal of Political Philosophy, 19:1 (2011), 64–89 . 11 12 13 14

Procedure-Based Substantive Equality

This difference is subtle yet significant in three ways . Firstly, when we ascribe value to distributive patterns in themselves, our epistemic limitations aside, different patterns can be ordered in terms of their value, with some particular patterns being the most desirable (e . g . a pattern with the most equality or the highest total benefit) . In contrast, when distributive patterns are merely derivative of some desired function (e . g . to prevent excessive concentration of wealth), it is likely, or at least possible, that many different patterns are compatible with the desired function . In this case, secondly, while there could be an inseparable connection between a desired function and particular pattern(s), it is neither necessary nor stable . If a desired function allows only a particular pattern to arise, the connection can be severed when there is a change in relevant variables other than distribution of goods . For example, in a rigid class society wherein the amount of family wealth largely determines one’s life prospects, the distribution of wealth and income may need to be fully equalised for ensuring the fair equality of opportunity; a milder requirement may suffice in a less stratified society . Thirdly, deviation from a desirable distributive pattern always constitutes a moral loss when the pattern is valued in itself, thus generating a constant pressure to correct it . It is not so when a pattern is required instrumentally . For example, regarding the equal distribution of educational resources for the fair equality of opportunity, deviation may not be considered a moral loss from the viewpoint of PPJ when it is an isolated incident or contained in a specific period, say after the tertiary stage of education, leaving the fairness of procedures intact . In sum, PPJ does not fixate on patterns in the sense that it is likely to allow many patterns, whose compatibility with the desired function is variable . Furthermore, a deviation from desirable pattern(s) may not be morally problematic when it is isolated, temporary or otherwise contained . These analyses suggest some attractive features of PPJ . One is an agreement with our intuitions about responsibility and autonomy . As hinted by the aforementioned fair gamble example, it is intuitive to say that as long as the procedure is fair, outcomes of autonomous endeavours are also fair . The second attractive property is simplicity, which makes the realisation of justice more secure .17 The task of realising justice is simplified if we can do so through designing just procedures . It sidesteps detailed investigations of individual actions or states of affairs .18 By contrast, such investigations may be necessary in telic theories such as utilitarianism and luck egalitarianism or deontic theories that focus on individual conduct . The third and related virtue is compatibility with individual liberty . The fact that PPJ does not go after particular actions or particular outcomes means that it leaves a relatively large space for individuals to exercise free-

TJ, 267–268; Rawls defends the virtue of simplicity in connection to publicity and stability of justice (PL, 162; JF, 54) . 18 TJ, 285 17

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dom .19 This makes PPJ consistent with strong protection of basic individual liberties, whose prime example is Rawls’s first principle . From the characterisation of PPJ as a deontic theory with no pattern-fixation, we can also identify a guideline for putting this idea into practice in institutions . Namely, what we are after is not a particular pattern of distribution . Rather, our aim is to establish and maintain procedures that are fair for citizens understood as free and equal participants in social cooperation . Although some patterns of distribution can be judged as essential for the sake of realising such a fair procedure, they should not be fixated upon in themselves . Call this the no pattern-fixation requirement . 2.

Social Process View: Constraints and Adjustments to Procedure

To examine the role of PPJ in more detail, it is useful to divide it into three constitutive components . The first component of the PPJ is designing procedures that directly govern the transactions of individuals . Let us call this the direct rules of transactions . In regard to Rawls’s theory, these rules take the form of laws concerning rights and entitlements that reflect the equality of basic liberties and the difference principle . Thus, the basic structure of society must possess the legal guarantee of a set of universal basic liberties as well as laws governing the structure of productive enterprises that maximise the prospects of the least advantaged . However, establishing such procedures is not enough . The block quotation in the previous section mentions ‘appropriate limits’ on social processes . We can distinguish two different types of ‘limits’ on a procedure . One is what I call constraints of background justice . The fair value of the political liberties and fair equality of opportunity, among other things, are required as ‘the background conditions required for free and fair agreements’ .20 For example, in addition to selection procedures for positions of power and responsibility being unbiased and open to talent, justice requires a condition where people from all sections of society have substantial access to opportunities for the development of their abilities . Certain institutional arrangements, such as quality public education and child care services, are required in the background for the fair market procedure . On top of that, we need periodic adjustments against the tendency of social relations and background conditions of society to deviate from a fair state . Call this the adjustive interventions . Deviations from a fair condition are inevitable in the long term

JFR, 54; cf . Samuel Scheffler, Equality and Tradition: Questions of Value in Moral and Political Theory, 2012; Samuel Freeman, The Basic Structure of Society as the Primary Subject of Justice, in: A Companion to Rawls, eds . Jon Mandle and David A . Reidy, 2014, 88–111 . 20 JFR, 52, 53 19

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as an unintended compound effect of outcomes of otherwise fair transactions .21 Thus, a just basic structure must have ‘the adjustments necessary to preserve background justice’ if it were to remain a fair system of social cooperation over generations .22 The idea is that the basic structure requires maintenance because it is not possible to devise failproof institutions that consistently function in the intended way . Such maintenance must comprise a part of the procedure in order to realise PPJ in social institutions that can endure . For this purpose, the two principles of justice specify ‘an ideal form for the basic structure’, ‘an ideal form for background institutions’ or ‘a structural ideal’ as reference points to guide such adjustments .23 Here, Rawls’s terminology is somewhat unusual, but these terms refer to the structure of major social institutions governed by the two principles .24 I emphasise that the reference points for evaluating and guiding actual procedures are not ideal distributive patterns but ideally functioning institutions . These two types of limits are still purely procedural as they do not require outcomes to conform to particular patterns . Rather, they are ‘functional’ requirements for public institutions .25 That is, they only refer to how major social institutions function as procedure . For example, the two principles of justice require that the system of entitlements be so designed that emerging inequalities work to maximally improve the expectations of the least advantaged . Now, it is likely that this requirement makes certain outcomes (for example the extreme inequality of wealth in the U . S . today) nearly impossible to arise . Yet, the two principles of justice do not directly go after such outcomes to correct them . That is why Rawls says ‘[e]ven with these rules of background justice, distributive justice may still be understood as a case of pure procedural justice’ .26 Hence, the two types of constraints are constitutive of PPJ . To summarise, PPJ as applied to institutions and policies is comprised of three components27: Direct rules of transactions: social institutions that function as devices of fair procedure directly governing individual transactions

PL, 265–266 PL, 284 PL, 284–285 cf . PL, 224 . PL, 283; cf . JFR, 68 JFR, 52 Thomas does not distinguish between constraints of fair background conditions and adjustive interventions and calls these combined functions as ‘adjusted procedural justice’ in distinction with pure procedural justice (Thomas (footnote 2), 89 ff .) . The break-down into three components is significant as the adjustive interventions come into view by considering social institutions enduring in the long term, while the other two components are relevant even in the short term . The distinction is particularly relevant in explaining the difference between different models of pure procedural justice as we see below . Although my claim here is not exegetical, the fact that Rawls says that to secure the just background conditions the basic structure needs to be ‘appropriately regulated and adjusted’ may rend some support to my interpretation (PL, 266, my italics) . 21 22 23 24 25 26 27

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Constraints of background justice: social institutions that function to realise background justice Adjustive interventions: social institutions that function to adjust a social process against the gradual and unintended erosion of the background justice

Having all three components is characteristic of Rawls’s favoured model of PPJ . He makes this explicit in Justice as Fairness: Restatement by using the term ‘pure background procedural justice’ . The word ‘background’ is added ‘to indicate that certain rules must be included in the basic structure as a system of social cooperation so that this system remains fair over time’ .28 The example of the draft system in professional sports that Rawls uses to illustrate the idea may be helpful . In this system, teams are allowed to recruit new players in the reverse order of their performance rankings from the previous season . It functions to regularly adjust the tendencies of the winning team growing stronger and the losing team weaker . Furthermore, such changes play an integral role in the sport to keep it lively and attractive .29 Thus, the point of the notion of ‘pure background procedural justice’ is to emphasise that constraints of background justice and adjustive interventions are essential components of PPJ . But, why all three? Let us glance at how a model of PPJ without all three components works . Rawls calls it a ‘historical process view’ in comparison with his favoured model, a ‘social process view’ . According to Rawls, ‘[w]hile both views use the concept of pure procedural justice, they specify this concept in different ways’ .30 A historical process view is exemplified by Locke’s and Nozick’s theories that focus on the fairness of initial state and of individual agreements and transactions .31 In this view, constraints are employed to regulate individual transactions but not to secure fair background conditions . In other words, the historical process view mainly attends to the direct rules of transactions and places only minimal constraints of background justice such as restricting violence and extreme poverty .32 It pays virtually no attention to adjustive interventions and ignores changes in social conditions that may result from a longterm accumulation of numerous transactions . In contrast, a social process view, of which justice as fairness is an example, covers all three components . Constraints of background justice and adjustive interventions are necessary because ‘[u]nless the basic structure is regulated over time, earlier just distributions of assets of all kinds do not ensure the justice of later distributions, however free and fair particular transactions

JFR, 51; The importance of background justice for pure procedural justice is also discussed elsewhere (TJ, 76, 198–199; PL, 266 ff .) . 29 JFR, 51 30 JFR, 54 31 JFR, 52–53 32 TJ, 97; John Rawls, Lectures on the History of Political Philosophy, ed . Samuel Freeman, 2007, 146–7 28

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between individuals and associations may look when viewed locally and apart from background institutions’ .33 To highlight this contrast by using the analogy of the draft system again, a historical process view does not take issue with the ever-increasing power gap between high-ranking teams and low-ranking teams . It only aims to secure the fairness of the competitive situation at the inception of the league, the absence of obviously distorting factors such as violence and extreme poverty outside of the playing field, and the absence of cheating in games . However, even if such conditions are perfectly met, there are reasons to worry about a large and increasing power gap between the teams . For one, even when a lower-ranking team starts to improve, higher-ranking teams may be able to stifle it by headhunting some players from that team through massive offers, for example . For another, the bottom-ranking team may become increasingly desperate and consider it rational to attract audiences not by athletic performances but by players’ good looks or by engaging in rough plays even at the cost of penalties . In short, such a tendency of increasing power disparity may fundamentally change the nature of the game . That is why a social process view requires that additional mechanisms be built within the system that maintain certain parity between teams as a condition for fair games . The institutional guideline we can draw from these observations is the requirement of full-functionality . Institutions of PPJ must be equipped with all three components . It is the unique feature of Rawlsian PPJ that it includes the substantive elements of constraints of background justice and adjustive interventions . This approach may seem less purely procedural than the historical process view, and in a sense that is true . Having substantive constraints and adjustments is essential if a social institution is to remain purely-procedurally just rather than merely purely-procedural . 3.

Quasi-Pure Procedural Justice: Procedure for Determinate Stages

The idea of pure procedural justice with appropriate limits is also conceptualised by Rawls as ‘quasi-pure procedural justice’ from a somewhat different angle .34 PPJ takes the form of quasi-pure procedural justice when applied to determinate phases of theorisation about justice . More specifically, quasi-pure procedural justice applies to procedures at the constitutional convention and the legislature where more concrete matters are decided in comparison to the original position procedure where the parties choose abstract principles of justice . As such, quasi-pure procedural justice is characterised by two features .

33 34

JFR, 53; cf . PL, 286–287, 281 . TJ, 176, 318

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One feature is the indeterminacy of correct outcomes . In the original position, which embodies truly pure procedural justice, it is assumed that the procedure unambiguously selects one particular option as the most just outcome . In contrast, procedures at more determinate stages cannot single out a particular option as the correct one due primarily to the complexity and ambiguity of relevant evidence .35 Allowing such indeterminacies is a feature of quasi-pure procedural justice . The other feature of quasi-pure procedural justice is hierarchical relations between procedures . A procedure at a more concrete level is constrained by procedure(s) at a higher and more abstract level . The principles of justice constrain the constitutional convention, and the just constitution constrains the legislature . Such constraints are required to deal with the indeterminacies mentioned above so that options selected at more concrete levels stay within the bounds of justice at more abstract level(s) . This scheme ‘sets out a series of points of view from which the different problems of justice are to be settled, each point inheriting the constraints adopted at the preceding stage’ .36 Thus, by setting an acceptable range in this way, quasi-pure procedural justice manages to ensure that any outcome can be regarded just, even though there is no way to be certain that an outcome is the most just . The feature of inheritance is noteworthy in two ways . First, there is a sequence of theorisations about the requirements of justice, from the original position to execution of laws and policies (with a proposal of property-owning democracy that we see in the next section belonging mostly to the third stage) . The approach of PPJ itself is inherited to later stages of theorisation, along with the principles adopted at earlier stages . Thus, PPJ characterises Rawls’s theory through and through, slightly changing its form according to stages of theorisation . Second, the inheritance of the constraints from more abstract stages of theorisation provides a further ground, in addition to the analysis in the previous section, for regarding constraints of background justice and adjustive interventions as components of PPJ: namely, they reflect outcomes of pure procedural justice at more abstract level(s) . An institutional guideline derived from the idea of quasi-pure procedural justice is that social institutions have to follow the two principles of justice (or their equivalents) and a just constitution . Those higher principles should guide the design of institutions at a concrete stage, and any deviation in laws and social practices should be checked and corrected in light of them . Call this the inheritance requirement . Now we have three guidelines for institutionalising PPJ .37 To review: No pattern-fixation requirement: to employ a deontic approach to equality with no fixation on particular patterns

35 36 37

TJ, 318 TJ, 176 The list is not intended to be exhaustive .

Procedure-Based Substantive Equality

Full-functionality requirement: to possess all three components of pure procedural justice Inheritance requirement: to follow the constraints of higher principles, namely, the two principles of justice (or their equivalents) and the just constitution

Note also that the three components of PPJ distinguished in section 2 (i . e ., direct rules of transaction, constraints of background justice, and adjustive interventions) are subcategories of the full-functionality requirement . The three components explain what it means to have full functions of PPJ . 4.

Property-Owning Democracy as an Institutional Scheme of PPJ

This section connects observations of the preceding sections regarding PPJ to Rawls’s institutional vision of property-owning democracy . In so doing, I aim to make clear an underappreciated feature of property-owning democracy, namely its institutionalisation of PPJ .38 I will proceed by way of examining whether property-owning democracy satisfies the three institutional guidelines of PPJ identified above . I will start with the inheritance requirement for the ease of explanation . I will only make two passing remarks on this . First, there is reliable literature that shows how features of Rawls’s property-owning democracy follow from the requirements of his two principles of justice (also making comparison with a just constitution redundant) .39 I have nothing to add here . Second, inheritance of the approach of PPJ can only be tested by seeing if property-owning democracy possesses the necessary features of PPJ . This overlaps with the full-functionality requirement and does not merit separate discussion . Let us, accordingly, discuss the full-functionality requirement, which requires property-owning democracy to embody functions of PPJ . I believe this is never made clear by Rawls . He says that property-owning democracy is required for realising rules of PPJ regarding matters of distribution .40 While this shows a connection between the two ideas, it does not show that property-owning democracy is a case of PPJ . To see this, we need look into specific mechanisms of property-owning democracy . I will use the distinction of three components of PPJ as a guide . Beginning with the direct rules of transactions, property-owning democracy adopts constitutional democracy and a competitive market mechanism . While the decisions on law and policy are To be precise, PPJ here takes the form of quasi-pure procedural justice as is the case in all stages after the original position . 39 E . g ., Samuel Freeman, Rawls, 2007; Samuel Freeman, Property-Owning Democracy and the Difference Principle, Analyse & Kritik, 9 (2013), 9–36; Martin O’Neil, Free (and Fair) Markets without Capitalism, in: Property-Owning Democracy: Rawls and Beyond, eds . Martin O’Neil and Thad Williamson, 2012, 75–100 . 40 TJ, 243; JFR, 51, 140; cf . Richard Krouse and Michael McPherson, Capitalism, ‘Property-Owning Democracy,’ and the Welfare State, in: Democracy and the Welfare State, ed . Amy Gutmann, 1988, 79–105 . 38

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managed by democracy, it has to be a democracy with constitutional limits on the content of legislations . Constitutional guarantees of fundamental rights and liberties in line with the first principle of justice are required for democratic procedures to function fairly .41 Also, for regulations of productive activities, a reasonably competitive market is required for the sake of freedom of association and occupational choice as well as for efficiency .42 Here, in line with the lexical priority, freedom of association and occupational choice are prioritised over efficiency . Thus, a fair market scheme must possess mechanisms for ensuring substantial opportunities for participating in social cooperation .43 The second component of PPJ, the constraints of background justice, call for the following institutional mechanisms . In relation to democracy, mechanisms for securing the fair value of political liberties are required . More specifically, measures such as regulations of campaign finance and political contributions are required to prevent conversion of social and economic powers into political influence .44 In relation to the market, broad access to productive assets and human capital (education and training) need to be guaranteed as a background condition so that fair equality of opportunity can exist in the market .45 Also required for the same purpose are health services accessible to all .46 The third component of PPJ involves adjustive interventions to preserve background justice, which require some countervailing mechanisms against the tendencies wherein just background conditions are eroded over time . For example, taxation of income and inheritance is required for preventing excessive concentrations of wealth in a few hands such that fair equality of opportunity and the fair value of political liberties may be maintained .47 Moving on to the final guideline, the no pattern-fixation requirement, notice that none of the mechanisms of property-owning democracy described above directly specify a pattern of distribution to be realised . Rather, these are requirements on the major institutions and the background conditions of society aimed for making fair social cooperation of citizens possible .48 The state of affairs the comes about is still left to actual social processes . Even the mechanisms for prevention of excessive concentrations of wealth primarily focus on rules concerning ‘how people acquire property’ such as intergenerational transfers of wealth .49 The amount of wealth particular

41 42 43 44 45 46 47 48 49

JFR, 145–148 TJ, 242 TJ, 272; PL, lvii JFR, 148–150 JFR, 176 JFR, 174 PL, 268 TJ, xv JFR, 53

Procedure-Based Substantive Equality

individuals might earn is not the focus .50 Thus, the mechanisms of property-owning democracy are consistent with Rawls’s statement that ‘the two principles of justice do not insist that the actual distribution conform at any given time (or over time) to any observable pattern, say equality, or that the degree of inequality computed from the distribution fall within a certain range, say of values of the Gini coefficient’ .51 As such, property-owning democracy retains the attractiveness of PPJ . First, it is in line with our intuitions about autonomous choice . Rawls says the aim of property-owning democracy is ‘to put all citizens in a position to manage their own affairs and to take part in social cooperation on a footing of mutual respect under appropriately equal conditions’ .52 It is more in line with our intuitions about autonomy and responsibility to empower citizens to run their lives on equal footings than to keep them equal by managing every outcome of their endeavours . In such a spirit, just institutions encourage constructive efforts of individuals by respecting their legitimate expectations .53 This also connects to the virtue of simplicity, because honouring legitimate expectations entails that just institutions make neither unpredictable interferences in private transactions nor continuous corrections to their outcomes .54 On the other hand, it is the responsibility of society to prepare and preserve the requisite background conditions, for instance by supporting citizens’ free development and exercise of abilities by providing education and training of sufficient quality and variety .55 Also, essential services such as medical care need to be guaranteed to all to underwrite fair equality of opportunity . When appropriate institutions are installed and honoured, we can be assured that ‘individuals and associations are then left free to advance their (permissible) ends within the framework of the basic structure, secure in the knowledge that elsewhere in the social system the regulations necessary to preserve background justice are in force’ .56 In this way, pure-procedural mechanisms of property-owning democracy ensure citizens’ free pursuit of their plans of life through the free development and exercise of their abilities . Individual liberty is protected through the provision of necessary support and adjustments as well as through not targeting end states .

Although income taxation is also a part of the mechanism for preventing excessive concentrations of wealth, Rawls even envisions a possibility of replacing it by proportional expenditure tax if social conditions permit it (TJ, 246) . This otherwise puzzling comment makes sense if we consider the centrality of PPJ in Rawlsian theory of justice as PPJ does not attend to end-state patterns unless doing so is necessary for maintaining fairness of procedures . 51 PL, 283; cf . JFR, 68 . 52 TJ, xv 53 PL, 283; TJ, 273 54 PL, 283 55 Cf . PL, 189 . 56 JFR, 54 50

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In this connection, I would like to suggest that these attractive features of PPJ contribute to the endorsement of property-owning democracy by diverse advocates mentioned at the outset of this paper . Also, no pattern-fixation requirement may mean that diversity of interpretation and adaptation is inevitable . That is, no pattern-fixation is only a short step apart to no policy-fixation . Various policies may be compatible with PPJ depending on the conditions of society as long as they enable social institutions to function as fair procedures . That said, this section has shown that property-owning democracy is an institutional scheme of PPJ . PPJ provides property-owning democracy with a backbone and a structure . The no pattern-fixation requirement excludes policies that aim at certain end states in themselves – for example some form of the Basic Income . Also, libertarian regimes with no concern for adjustive interventions cannot pass the full-functionality requirement . Finally, the inheritance requirement works to prevent a majoritarian democracy from abandoning the constitutional guarantees of equal basic liberties and the fair value of political liberty, for example . I would like to suggest, further, that a classical liberal interpretation of property-owning democracy by Gavin Kerr should be rejected as it is inconsistent with PPJ . Kerr denies privileged positions of equal basic liberties as well as fair equality of opportunity and the fair value of political liberty .57 Instead, considerations of justice are reduced to the maximisation of the substantive opportunity to pursue conceptions of the good for the least advantaged . Notice that Kerr establishes an independent criterion of judging what is just, namely, the maximisation of the substantive opportunity . Hence, Kerr’s revised property-owning democracy is a case of imperfect procedural justice . Whatever its merit may be, it embodies a different model of thinking about justice from Rawls’s property-owning democracy . Conclusion

To summarise, this paper first conducted conceptual and terminological investigations into the idea of pure procedural justice (PPJ), with a focus on its application to matters of distributive justice . The complex idea of PPJ was analysed in three ways . First, its theoretical character was identified as a deontic approach with no pattern-fixation . Second, the function of PPJ was thoroughly examined by dissecting it into three constitutive components . It was pointed out that having all three components is an important feature of the Rawlsian model of PPJ . Third, the meaning of quasi-pure procedural justice was identified in reference to different stages of theorisation in justice as fairness .

57

Kerr (Footnote 2), 81, 144, 158, 164, 184

Procedure-Based Substantive Equality

Second, it presented an understanding of Rawls’s institutional vision of property-owning democracy, illustrated as an institution of PPJ . Property-owning democracy aims to function as a fair procedure for citizens regarded as free and equal participants in social cooperation . This view helps us understand more concretely what property-owning democracy is (and isn’t) . At the end of section 4, I applied these insights to Kerr’s classical liberal model of property-owning democracy and suggested that it was inconsistent with Rawls’s property-owning democracy understood as an institution of PPJ . My examination was admittedly very brief . The point, though, is that the three institutional guidelines of PPJ provide criteria for assessing whether various interpretations of property-owning democracy are consistent with its essence . Dai Oba Waseda University, 1-6-1, Nishiwaseda, Shinjuku-ku, Tokyo, Japan, dai .oba@toki .waseda .jp

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Transnational Environmental Civil Disobedience as a Catalyst for Sustainable Democracy LAŸNA DROZ

Abstract

Environmental civil disobedience can benefit the development of sustainable democracy by improving participation in the law-making process, environmental sustainability and social stability . Notably, it can strengthen democracy by giving a voice to beings that also endure the consequences of collective decisions while being under- or not represented, such as non-human living beings, ecosystems and future generations . Moreover, as many environmental problems span beyond borders, so does environmental civil disobedience, with the risk of undermining dialogue and possible positive impacts .

sustainable democracy, civil disobedience, environmental ethics, environmental activism, resistance, future generations, diversity . Keywords:

Introduction

Most human actions in present days have long-term consequences to future generations . However, the system of law tends to be largely self-preserving and ill-equipped to deal with the necessity of urgent changes such as the ones needed to tackle most environmental problems . They create new moral and legal dilemmas for which our current human-centred ethical and legal systems are largely unprepared . Environmental problems are diverse, such as climate change, biodiversity loss, pollution and ecosystem destruction . Solutions to these problems often transcend state borders, but binding laws are usually limited to the land of a state . In democracy, solutions to environmental problems often involve civil and grassroots participation . Sustainable democracy can be defined as a political system in which every member is taking part in the law-making process, characterized by environmental sustainability and social stability . In other words, there are three main “ide-

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al” requirements for sustainable democracy: participation in the law-making process by all members, practices preserving the quality of the environment on a long-term basis, and absence of violence in the socio-political system . However, each of these three requirements faces serious limitations . According to the first requirement, every member should be able to have an equal participation in the law-making process . Yet, in reality, access to law-making processes is restricted by political, economic and educational resources . Moreover, some beings affected by the laws cannot take part in its making, such as non-human living beings, undocumented migrants and future generations . Second, environmental sustainability refers to the possibility for human behaviours affecting ecosystems and natural resources to be continued indefinitely . To assess if a behaviour respects this requirement requires detailed investigation in precise practical aspects that cannot be all covered by environmental laws . Environmental laws not only have severe gaps, but their enforcement is also occasionally unsatisfying . Dependent on regions and states, examples of gaps in environmental laws range from lack of regulation to control irregular uses of the land by individuals and enterprises, to provisional listing of hazardous substances leading to the improper disposal of harmful wastes . While governments, NGOs and scientists work on improving and updating the legislation, other individuals and enterprises, knowingly or unknowingly take advantages of these gaps to continue practices degrading the environment and depleting natural resources . Third, social stability can be considered as a necessary condition for environmental sustainability . Indeed, the development and the enforcement of efficient environmental law can be assured only if the socio-political system is stable and flexible enough to allow adaptability . To face appropriately environmental challenges, innovative lifestyles need to be imagined and new laws must be drafted, while obsolete parts of the legal systems have to be amended or even abolished . Today, even in democracies where the participatory mechanisms are accessible, they are generally highly time-consuming and actual changes at the implementation level often come with too much delay to appropriately tackle urgent environmental issues . For example, in the Swiss system of semi-direct democracy where every citizen has the right to launch a federal popular initiative that, if accepted, changes the constitution, the whole process takes a long time . It can take up to 18 months to collect the necessary 100,000 valid signatures for the initiative to be put to the vote, and then it takes several years until the popular vote takes place in order to complete administrative procedures and for the government to take position . Even if the text is accepted, the enforcement of the new law can also take several years, with transitory measures to accompany the most important changes . While this lengthy process of semi-direct democracy and law-changing is taking place, direct harm on the environment continues . Environmental problems do not wait for lawmakers’ decisions and for the national governments to take a stronger political stance to enforce environmental laws . Biodiversity is reducing at a frightening rate and the effects of climate change are threatening the most vulnerable population . In these circumstances, obedience to some obsolete

Transnational Environmental Civil Disobedience as a Catalyst for Sustainable Democracy

laws and non-action could actually be crimes against the nature and future generations . Can civil disobedience be a catalyst for sustainable democracy? In other words, can disobedience to certain laws in order to tackle environmental problems provide the society and specifically lawmakers with a much-needed stimulus to make formal changes in the legal framework? To answer these questions, I first explore what environmental civil disobedience is . Second, I show how it can meet the requirements for sustainable democracy . Finally, I discuss how civil disobedience can be transnational and what could be the risks and benefits of thinking of it at a transnational scale . 1.

Environmental civil disobedience

Civil disobedience is understood here as disobedience to certain laws, characterized by civility . I follow Milligan’s definition of civility as referring to the respect for fellow humans, the absence of hatred speech or action, the absence of cruelty, and the avoidance of violence and reckless endangerment of others .1 In turn, environmental civil disobedience refers to any case of civil disobedience targeting environmental problems . It includes the actions of protesters chaining themselves to rails to prevent a train carrying nuclear wastes to leave the country of production of these wastes . Activists climbing trees and refusing to go down to prevent deforestation are also considered environmental civil disobedients . With the rise of the awareness of the environmental problems and their ubiquity, cases of environmental civil disobedience are multiplying around the globe . They are creating challenges for the courts of justice, encountering backlash and support from the public opinion, and often putting the lives of the protesters at serious risks . The media often play a decisive role in the success or failure of these actions even if the definition of the success and failure already would already require a full paper on its own . For one year, “The Guardian” has been recording the death of people around the world fighting for the environment in their series titled “the defenders” . Some of them are environmental civil disobedients, some are on the right side of the law, and many are acting in the dangerous grey margins . An example is the paper opinion published on May 30th 2018 titled: “I was arrested for protesting against Canada’s pipeline, and the battle is far from over . There is nothing logical about the Kinder Morgan pipeline – especially not the decision to gut environmental laws for it .” The exceptional visibility of this action was partly due to the fact that a pipeline engineer and two members of the Canadian Parliament were arrested along with the hundreds of protesters2 . In this case, environmental civil disobedience mainly rests upon the intervention of the media to seek support of the public opinion, and to report their claims to the government and corporations . Tony Milligan, Civil Disobedience, Protest, Justification, and the Law, 2013 . Title in The Guardian, 24 March 2018: “Canada: how a pipeline engineer got arrested in anti-pipeline protests – Two federal MPs among more than 100 people arrested challenging 1,000km line”

1 2

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The role of media is crucial for civil disobedience if the latter is understood as a form of communication . Defended by authors like Rawls3 and Zashin4 and very popular in the English-language literature, the communication thesis says that civil disobedience is a form of communication to the target (governments, corporations…) as a last resort when other lawful channels have been exhausted5 . It states that “the rationale for civil disobedience is to express opposition to contentious laws, policies, or practices, and cultivate support for reform” .6 In this view, civil disobedience must be nonviolent and public, and the disobedient must accept punishment for breaking the law7 . It restricts the usage of “civil disobedience” as a moral justification for breaking the law to cases in which there are no other lawful tools available to communicate protest . It sees communication as the primary purpose of civil disobedience . Conversely, it rules out the claim of civil disobedience when there are other communicative channels accessible that do not involve law breaking . In this understanding civil disobedience is always situated geographically and historically inside a specific state bound by specific laws . Several objections have been made to this thesis . First, unless we think that law breaking is morally wrong in general, there is no need to justify actions that appear to be morally justifiable, but happen to break the law . The communication thesis takes for granted the presupposition that we have a moral obligation to obey the law8, and only then attempts to justify it in terms of communication . This presupposition is clearly not obvious and requires further justifications that are likely to be done case-by-case . But it seems clear that one cannot have a moral obligation to obey an unjust law . On the opposite, one could even speak of duty to resistance to unjust laws . Second, the communication thesis according to which civil disobedience is only acceptable as a last resort is applicable only in a so-called “piecewise just society” .9 Indeed, if the society is largely unjust, then there would not be any reason for a member to have an obligation to obey a law that contributes to support an oppressive system of laws . Moreover, what counts as last resort varies greatly depending on the circumstances . If by filling a legal complaint an environmental activist exposes herself to violence from the police or from the organized crime –possibly risking her life, is she blameworthy to take illegal action and bypass the apparently “available” legal channel? Arguably not . Third, laws are always quite general principles that do not answer all the practical questions of their applicability . Brownlee describes this problem as the gap thesis:

John Rawls, A Theory of Justice, 1971 . M . Elliot Zashin, Civil disobedience and democracy, 1972 . See also Milligan, 2013, Ibid, and Peter Singer, Democracy and Disobedience, 1973 . The SAGE Encyclopedia of Political Behavior, Fatali M . Moghaddam (ed .), 2017, 98 . As argued by Rawls (ibid .), among others . David Lyons, Moral Judgement, Historical Reality, and Civil Disobedience In: Philosophy and Public Affairs, ol . 27 . No . 1, 1998, 31–49 . 9 Andrew Sabl, “Looking Forward to Justice: Rawlsian Civil Disobedience and its Non/Rawlsian Lessons” . In: The Journal of Political Philosophy, Vol .9, N . 3, 2001, 307–330 . 3 4 5 6 7 8

Transnational Environmental Civil Disobedience as a Catalyst for Sustainable Democracy

“there is an ineliminable gap between the expectations of normatively valid formal offices and the moral responsibilities that underpin and legitimate those offices”10 . A parallel gap that I want to point out is the ineliminable gap between what is covered by the laws at a certain time and the urgency of moral dilemmas . This is especially true for environmental questions, as every day, new scientific findings are bringing new elements in our reasoning and require the legal system to be quickly adaptable in order to face at best the environmental challenges . Fourth, the communication thesis is wrongly limiting civil disobedience to claimed actions in the public sphere . Indeed, there can be cases in which it is more effective to secretly or anonymously take direct action . This way, the disobedient can continue to take direct actions in order to prevent irreversible harm . In contexts where the activist’s individual rights and safety are seriously threatened, it seems to me to be an exaggerated requirement to ask them to literally risk their life to claim their actions publicly . Proponents of the communication thesis may argue that in case of activists taking secretive actions for a moral cause, we have to speak of resistance, not of civil disobedience . Instead of losing time in disputes over terminology, the point is here that sometimes, environmental activists choose to take illegal actions secretively for a cause they judge morally justifiable, and they choose to do so “civilly”, in the sense we saw earlier . I include such actions under the label of civil disobedience11, but it should not affect my argumentation . These objections bring us to an important distinction often made in the literature between political and moral civil disobedience . Political civil disobedience aims at making a change in the political system by communicating protest and often uses indirect tactics and strategies to do so . “Indirect” civil disobedience means that the law broken is not the object of protest . A typical example is Greenpeace activists hanging a protest banner on a nuclear power plant . They are breaking private property law but are not protesting against it (at the very least, it is not their primary object of protest); they might protest security failure and the exploitation of nuclear power as a whole . On the contrary, moral civil disobedience is almost always direct, that is, the law broken is itself the object of protest12 . The main goal of moral civil disobedience is to prevent irreversible harm . An example is hugging trees and attaching oneself between the trees and the cutting machines to prevent deforestation . Obviously, the boundaries of these distinctions are blurred in reality, and the expression of “civil disobedience” itself encompasses different types of actions depending on the context, with the greatest difference appearing in different legal contexts

Kimberley Brownlee, Conscience and Conviction, 2012, 11 . The word “resistance” might be more appropriate in some specific cultural and legal contexts . See for example Simon Caney, Responding to global justice: on the right of resistance, Social Philosophy and Policy Foundation, 2015 . 12 Carl Cohen, Civil Disobedience, Conscience, Tactics, and the Law, 1971 . 10 11

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and linguistic environments . Yet these distinctions help us bring to light the clear idea that our moral responsibilities should always take priority when they conflict with formal and legal expectations . In Brownlee’s words, “we are morally obligated ceteris paribus to privilege our special moral responsibilities before formal expectations when the two diverge non-trivially” .13 Environmental problems are shattering our classical ethical frameworks, because they ask questions that seem to go far beyond them . Indeed, until now ethics have focused on regulating relationships between existent human beings and groups of human beings, providing us with detailed and deeply debated guidelines about how to behave with our peers and enemies . In contrast, beyond general calls for respect for nature, they offer little advice on how to act towards not-yet-existent human beings, endangered species and threatened ecosystems . In response, a multiplicity of innovative ideas about values and duties towards environmental elements are emerging . The importance of caring for future human generations in a more global and long-term perspective is becoming familiar . But how do we translate these misty ethical intuitions into laws that can be applicable and reach regional agreement to ensure their enforceability? This is and will take time, especially in democracies, where a majority of the population must be convinced to make a legal change . Meanwhile, environmental disasters continue to grow and produce irreversible harm . 2.

Meeting the requirements for sustainable democracy

I argue here that civil disobedience is compatible with the three requirements for sustainable democracy because of the three benefits it provides us . First, civil disobedience can give a voice to underrepresented persons and to non-represented beings, improving the participation in the law-making process . Second, it can compensate for gaps in environmental law and lack of enforcement by temporarily postponing the damage or preventing it . Finally, it can also contribute to inducing the moral shock necessary to improve the legal system in a lasting way while minimizing violence . Let us explore these in more details . An easy example of irreversible environmental harm is the case of species extinction and biodiversity loss . Endangered species do not have a voice in democratic systems, but they suffer from the consequences of the political decisions . Different proposals have been made to include them in the participatory system, such as having nonpartisan delegates in parliament responsible to defend the rights of the endangered species and ecosystems . However, up to now, none of them was widely used . In addition, delegates are still susceptible to be influenced by lobbies and personal preferences (favour-

13

Brownlee, 2012, 11 .

Transnational Environmental Civil Disobedience as a Catalyst for Sustainable Democracy

ing the giant panda over the ghost frog, because the former is subjectively judged cuter than the latter) . In these circumstances, a variety of grass-root voices may counterbalance the structural dominant power influenced by lobbies and other interests . Following Hettinger14, I argue that civil disobedience can be one of the ways to give a voice to non-represented beings, by doing actions in their favour and bringing attention to their position . For example, keeping wild grasses and hedges on the side road instead of cutting them low as the law prescribes it can bring attention to the loss of habitat for a species depending on it while directly reducing the loss of habitat . Planting an explanatory board can improve the odds of a successful communication . Similarly, future generations are not currently included in the political systems but can be given a voice using other channels including civil disobedience . Not-yet-born people and children do not have representative in parliaments, but they will be directly affected by the environmental policies voted in the present . NGOs and citizen groups attempt to speak in their name but they have little leverage in the negotiations of the texts of laws and resolutions . To make their voices heard, environmental activists have already illegally broken into parliamentary sessions or general assembly of multinational corporations to urge them to take responsible decisions regarding future generations . Other more direct actions were taken . In September 2018, in Germany, the police evicted climate-change activists from their treehouses . The activists had been building treehouses over the past six years to prevent the expansion of an open-pit coal mine and the subsequent fossil-fuel emissions coming from the combustion of coal by the electricity company . They repeatedly refused to leave the site . This is a case of civil disobedience that can be interpreted as defending the rights of future generations . Besides, for underrepresented and excluded people, civil disobedience is sometimes perceived as their last possible channel to take action to prevent an irremediable loss . In many political systems, indigenous people are a numerical minority in the democratic process and they have difficulties of access to the participatory channels (let it be simply because they live far from the cities and villages where voting takes place and where they can interact with the government officials) . Yet, those who are preserving a lifestyle depending on their natural environment are also the most vulnerable to environmental changes . They also are at the frontline of the fight against environmental crimes such as poaching and illegal deforestation . In many cases, local remote populations are the first people to notice the threats and to suffer from them, far before the government and the NGOs . Then, if it comes at all, governmental response to prevent crimes against the environment or actions that are legal but highly detrimental to the environment takes time and may come too late . In such cases, civil disobedience is the last resort for local indigenous people to protect their habitats and their lifestyles from irremediable destruction .

Ned Hettinger, Environmental Disobedience . In: A Companion to Environmental Philosophy, Dale Jamieson (ed .), 2001, pp . 498–509 . 14

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In addition to giving voice to non-represented and underrepresented beings, the second possible benefit of environmental disobedience is to fill gaps in the enforcement of environmental laws . Illegal deforestation by corporations and multinational corporations is usually well organized and governments might be corrupted by lobbies and lacking resources to control and fight it . In several cases, local activists lay down in front of wood-cutting machines and sabotage them . In return, they might be murdered and their families threatened by organized crime associated to the deforestation activities in obscure ways . This tragic fight is taking place out of reach of the governments . Yet, civil disobedience can temporarily postpone the damage to the environment, sometimes long enough so that the government succeeds in enforcing the law and taking action . In short, when states fail to enforce environmental laws, or when states lack environmental laws, civil disobedience is a way to prevent irreversible harm and to denounce these failures . On top of this direct effect, tragic stories of individuals fighting for their land can touch other populations and launch a social movement to support legal changes and better enforcement . The final possible benefit of environmental disobedience also relates to communication . Disobedient actions denouncing some practices, lifestyles and environmental crimes can create a moral shock to government officials and the larger population necessary to improve the legal system in a lasting way . Disobedience is like a chameleon . It changes colour depending on its environment . The same action can appear as an act of civil disobedience, as a crime, and as an everyday normal practice depending on the observer and on the legal context . From the perspective of an aware disobedient, disobeying takes enormous energy and can be subjective .15 In some cultures, expressing disagreement with the standard norm can already be perceived as an act of disobedience . Jasper worked on moral protests in general and noticed that they are often rooted in a moral shock .16 If the action of civil disobedience is appropriately and positively understood by the general public targeted, then some members of the general public might experience such a moral shock that may push them to support or even join the movement of the civil disobedient . In this sense, non-violence is a forward-looking requirement of civil disobedience .17 Indeed, violence usually triggers emotional reaction and a crystallization of the opposing positions . It also engages the vicious cycle of retribution, excuses, justice and sometimes revenge . If a protest is to unleash long-term changes in a system seeking sustainable democracy, then it needs to be civil and nonviolent, in order to foster dialogue instead of aggressive backlash .

Elena Loizidou, Disobedience subjectively speaking . In: Disobedience, Concept and Practice, Loizidou Elena (ed .), 2013, pp . 108–124 . 16 James M . Jasper, The Art of Moral Protest, 1997 . 17 Sabl, 2001 . 15

Transnational Environmental Civil Disobedience as a Catalyst for Sustainable Democracy

3.

Transnational environmental activism

As we have seen, an important difference between civil disobedience and environmental civil disobedience is their relation to the state . Most of environmental disobedience is targeting corporations, multinationals and enterprises, taking public opinion as a witness and the state as an arbitrator . Corporations and multinationals span beyond borders, profit from legal loopholes and sometimes violate the law . Public opinion also spans beyond borders and indignation can ricochet across the globe . Then, can we imagine a transnational environmental civil disobedience? In the literature, the idea of transnational civil disobedience already appeared in the context of social civil disobedience . Basing himself on the Rawlsian idea of decency, Allen argued that the international guarantee of access to the basic elements of the rule of law is a shared standard of global justice and grounds a global practice of civil disobedience .18 In a more politically oriented manner, some authors defend the idea that global civil disobedience can “offset the imperialism” of the wealthiest in our globalized world . For example, Ogunye writes that wealthy people have a duty to transnational civil disobedience to compensate for economic inequalities .19 Finally, Schock argues that transnational activists contribute to framing issues globally, to the internationalization of a movement, and to the “transnational diffusion of strategy” between individual activists who connect networks in different countries .20 These three aspects are features of most international movements of environmental activism . What role does transnational civil disobedience play in the case of environmental activism? On the one hand, moralities are in constant change, innovating new understandings and ways of acting at the best of the possibilities in unprecedented circumstances . It is just like a floating bubble, changing and adapting, influenced by cultural beliefs such as religion, and personal and communal experiences . Moralities do not know borders, and they change with flows of information bringing new worldviews and ideas . On the other hand, law is a more clearly defined frame that covers only a small area of the moral bubble and tries to force elements that exceed the frame into it . Law is crystallized with its own national particularities inside one specific state . Inside the frame of law, the frame of enforcement is even smaller, as many laws are unenforced . Environmental laws are regularly unenforced, remaining political greenwashing instead of becoming game changers in the field of environmental protection . In this metaphor, the goal of political environmental activism is to move the robust frame of law to fit the ever-changing moral bubble, and to expand the frame of enforcement . Civil disobedience occurs where the moral bubble is overflowing the frame of law . Activists then act

18 19 20

Michael Allen, Civil Disobedience in Global Perspective, 2017 . Temi Ogunye, Global justice and transnational civil disobedience In: Ethics and Global Politics, 8:1, 2015 . Kurt Schock, Civil Resistance Today, 2015, 143 .

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in or about an area that is outside what is legal in their specific state, because they are trying to expand the frame of law to cover this area too . The frame of law is different in each and every nation-state . So are the multiple moral bubbles that are also different between groups in one state, and even between individuals . Of course, different national frames of law have overlapping areas . The moral bubbles of public opinion inside two different states also partly overlap . What is illegal in a state A is often more limited than what is immoral . But what is immoral and legal in the state A might be illegal in the state B . Activists in the state B might then be able to protest against an immoral type of action in their own state without doing “civil disobedience”, while activists in the state A, doing the same action, might be criminalized . It might then be wiser to use the umbrella term “activism” instead of “civil disobedience” to discuss transnational environmental protest movements . Nowadays, the ubiquity of the media and social networks make these differences blatant . I suggest that transnational environmental activism that includes environmental civil disobedience can contribute to the development of sustainable democracies by fostering dialogues at the borders of law and legality (as comparison makes apparent the relativism of those) and by breaking some taboos . Moreover, transnational networks of environmental activists can offer a platform and shelter to some environmental activists facing persecution and threats in their own states, maybe giving way to an emerging type of environmental political refugees . Transnational dialogue and support between environmental activists can also skip the corrupted political elite . Indeed, dominant national political elites are related to, dependent on, and at worst corrupted by the economical lobbies . The economical lobbies are often defending multinational corporations who commit crimes against the environment and go unpunished because they take advantages of legal loopholes and they blackmail states into not enforcing environmental laws or not passing them in the first place, with the threat of leaving the country and taking away with them the economic benefits . For many cases of pollution, the causes of an environmental problem in a state A involve another state B . The repeated haze crises are an example . Fires set in forests in Indonesia greatly contribute to the air pollution in Singapore . To compensate the lack of efficient diplomatic negotiations, transnational environmental activism can bring together individuals from both countries to develop innovative grassroots solutions . Finally, transnational environmental activism can empower local minorities and offer them a spotlight in international media that may partially protect them from violence from corporations and sometimes governments . Led by the Standing Rock Sioux, the Dakota Access Pipeline protests between April 2016 and February 2017 drew international attention . The international community on social media actively took part in the protest online, making harder the identification of activists on the ground . However, the benefits for activists on the ground from online transnational support are to be nuanced . Indeed, in some south-east Asian countries, any contact

Transnational Environmental Civil Disobedience as a Catalyst for Sustainable Democracy

with a foreign organization and activist group, especially when they are perceived as “Western”, may unleash a narrative that these native environmental activists are “brainwashed by Western propaganda”21 . So the advantages of active exchanges and transnational actions in the media need to be looked at in context . On top of the risks of the depiction by the opposing parties of activists as traitors controlled by Western powers, civil disobedients run the risk of creating an agonistic dialogue .22 An agonistic dialogue refers to the fact that interlocutors are not perceived as agent members of a dialogue any more, but exclusively as adversaries . Because they may apparently reject the premises shared by the majority including the opponents, they risk creating echo chambers . They might receive increasing support from the audience already convinced, while ostracizing themselves more and more from the general public . Some may also argue that civil disobedience is normalizing potentially problematic events by questioning the validity and importance of the law . If the civil disobedient goes unpunished, one may also say that it is normalizing impunity . All these risks are duplicated at the global level . A diversity of moral worldviews and values exists at all geographical scales . In our nowadays globalized world, the high pluralism of moral worldviews is confronted to fundamentalism and radicalism . To prevent the slippery slope of impunity and disrespect of law, opening a door that might be used by other violent extremist movements, it is important to insist on non-violence and acceptance of punishment, or, at least, on acceptance of dialogue with the authorities . I also suggest that in our multicultural world, civil disobedients themselves need to put a strong emphasis on narratives of commonness and shared vulnerabilities . If civil disobedients keep making efforts to improve communication towards the organization targeted and towards the public audience, it might contribute to avoiding the dangerous growth of an agonistic confrontation . In cases when communication is one of the goals of the civil disobedients, this requirement is as important as non-violence and acceptance of punishment . Conclusion

Environmental civil disobedience is a not an easy concept to grasp . It varies completely depending on the standpoint from where we look at it . Nevertheless, as the various examples I mentioned show, cases of environmental civil disobedience are taking place across the globe, challenging the inertia of the national frames of law and of the weaknesses in environmental law enforcement .

As I was told by many environmental activists active in South-East Asia over the last four years . Erica von Essen, Environmental disobedience and the dialogic dimensions of dissent . In: Democratization, Vol .24, Issue 2, 2016 (2017 printed) . 21 22

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After exploring the idea of environmental civil disobedience, I showed how it can meet the requirements for sustainable democracy . First, it can help underrepresented beings such as indigenous people and non-represented beings such as future generations and ecosystems to take part in the law-making process . Second, civil disobedience is a way to temporarily postpone environmental damages by directly preventing them from happening . This often happens at the expense of the life and safety of the environmental activist . But in some cases, it can raise sufficient public support and protect the environment enough time for the government to take action . Third, if the activists stress the shared vulnerabilities and commonness in their communication with the general public who are taken as being together with them, their action of civil disobedience can foster a constructive dialogue in the public sphere . This open dialogue about the roots of the environmental problems is necessary to build democratic societies ready to make the necessary changes to become environmentally sustainable . Finally, I discussed how environmental civil disobedience can be an aspect of transnational environmental activism . In our highly interconnected world, information and values are moving across borders more than ever before . Moralities and laws are being compared and balanced . As environmental problems transcend borders, the network of activists does too . It creates new challenges, in some very practical ways from the perspective of the local environmental activist connected through social media with other like-minded people all over the world . In this article, I brushed some rough ideas that open more questions than they offer answers . Yet this is an indispensable step in the exploration of new ways to develop sustainable democracies while tackling urgent environmental problems . Acknowledgements

This paper was first presented and discussed at the first International Association for Philosophy of Law and Social Philosophy (Internationale Vereinigung für Rechts- und Sozialphilosophie) Japan International Conference on “Rule of Law and Democracy” on July 6th to 8th 2018 in Kyoto, Japan . I am deeply grateful to all the commentators whose questions and suggestions greatly contributed to improve this manuscript . Laÿna Droz Graduate School of Global Environmental Studies, Kyoto University, Yoshida-Honmachi, Sakyo-ku, Kyoto 606-8501, Japan, layna_droz@yahoo .fr

Part 3 Rule of Law and Aspects of Jurisprudence

Cultural Reality, Value-Serving, and Internal Reasons Some Remarks on Gustav Radbruch’s Concept of Law CHUEH-AN YEN

Abstract

In Legal Philosophy (1932) Radbruch states his definition of law: “Law is the reality, the meaning of which is to serve the legal value, the idea of law .” Alexy interprets the reality in this definition as the positivity of law . I argue in this paper that we should understand it in the sense of cultural reality . Along this direction I discuss some texts from Legal Philosophy and explain why legal values cannot be served without the evoking of an agent’s motivations to act on law’s reason . I recast accordingly Radbruch’s concept of law as this: “law is the cultural reality which aims to serve or realize legal values by means of the internal reasons of the jurists and the citizens” . Keywords: concept of law, cultural reality, value-serving, motive, jurist, internal reason

1.

General Remarks

Gustav Radbruch is one of the most prominent legal philosophers in the German-speaking world of the last century . His famous post-war article, “The Statutory Lawlessness and the Supra-statutory Law” (SLSL)1 is, according to Stanley Paulson,2

Gustav Radbruch, Statutory Lawlessness and Supra-statutory Law, Oxford Journal of Legal Studies 26 .1 (2006): 1–11 . German original, ‚Gesetzliches Unrecht und übergesetzliches Recht‘, first published in the Süddeutsche Juristen-Zeitung 1 (1946) 105–8 . Reprint in Gustav Radbruch, Gesamtausgabe (Collected Works) (hereafter GRGA), 20 volumes, Arthur Kaufmann (ed .), vol . 3: Rechtsphilosophie III, Winfried Hassemer (ed .) (Heidelberg: C . F . Miiller, 1990) 83–93, 282–91 (editor’s notes), and in Radbruch, Rechtsphilosophie, Studienausgabe, Ralf Dreier and Stanley L . Paulson (eds) (Heidelberg: C . F . Milller, 2nd ed ., 2003) 211–19, 234–5 (editors‘ notes) . Also see Gustav Radbruch, Rechtsphilosophie, 8th ed ., Erik Wolf and Hans-Peter Schneider (eds .) (Stuttgart: K . F . Koehler, 1950–73) . 2 Stanley L . Paulson, On the Background and Significance of Gustav Radbruch‘s Post-War Papers, Oxford Journal of Legal Studies, 26 .1 (2006), 17–40, 17–18 1

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the most cited essay in jurisprudence . Although Radbruch is far less known than Hans Kelsen and Carl Schmitt in the English-speaking world, interest in his theory has increased very rapidly in recent years . Radbruch also has had some tremendous impact on the developments of East Asian jurisprudence . In Taiwan, his legal philosophy still belongs to the canon and is required teaching in courses on jurisprudence . The SLSL article, which proposed the famous Radbruch formula, has become the chief focus of Radbruch studies . The formula includes two theses: The Intolerable or Unbearable thesis (Unerträglichkeitsformel) and the Disavowal or Disregarding thesis (Verleugnungsformel) .3 Both of them offer very important guidance for the practices of transitional justice in post-authoritarian countries, including Germany, and a great vast of literature stems from the interpretations, debates and applications of this formula .4 Among these studies, it was H . L . A . Hart’s well-grounded rejection of Radbruch’s formula in his classical essay, “Legal Positivism and the Separation of Law and Morals”,5 started a long-lasting controversy about Radbruch’s position on legal positivism . However, Radbruch is not just a legal philosopher . His writings cover a very wide range of subjects and areas such as criminal law, criminal sciences, legal history, and culture studies . SLSL is hardly the most representative work from his collected works, and legal positivism was not the primary concern for Radbruch’s legal philosophy either . The word ‘positivism’ appears only about 10 times in his 1932 Legal Philosophy,6 and not even every instance refers to legal positivism . The legal positivism mentioned by Radbruch or by his contemporaries is quite different from the version defined and debated after the 1950s . Nevertheless, the jurisprudential theories and philosophy in general developed since the 50s do offer us a lot of highly insightful concepts and analytical tools which show us many possibilities to reinterpret and reconstruct Radbruch’s legal philosophy and theory .7

For a short introduction to these two theses, see Frank Haldemann, Gustav Radbruch vs . Hans Kelsen: a debate on Nazi law, Ratio Juris 18 .2 (2005): 162–178 . See also Robert Alexy, A Defence of Radbruch’s Formula . In: Recrafting the Rule of Law: The Limits of Legal Order, ed . D . Dyzenhaus, 1999, 15–39 . Oxford . 4 See, among others, Adachi, H . (2006) . Die Radbruchsche Formel  Eine Untersuchung der Rechtsphilosophie Gustav Radbruchs, Baden-Baden . 5 Herbert L . A . Hart, Positivism and the Separation of Law and Morals . Harvard Law Review 71(1958), 593–629 . Reprint in Hart, Essays in Jurisprudence and Philosophy, 1983, 49–87 . 6 Gustav Radbruch, Legal Philosophy, trans . Kurt Wilk, in The Legal Philosophies of Lask, Radbruch, and Dabin, 1950 (hereafter LP) 43–224 . This work was first published as: Rechtsphilosophie (Leipzig: Quelle & Meyer, 1932), repr . in GRGA, above n . 1, vol . 2: Rechtsphilosophie II, Arthur Kaufmann ed ., 206–450, 561–603 (editor’s notes) (GRGA II) . 7 Alexy’s analyses and interpretation of Radbruch’s formula is perhaps the best example for the analytical reconstruction of Radbruch’s legal philosophy; see, among others, Robert Alexy, The Argument from Injustice A Reply to Legal Positivism, 2002 . 3

Cultural Reality, Value-Serving, and Internal Reasons

2. Radbruch’s “Rechtsbegriff” (Concept of Law) and Alexy’s Triad Analysis

In his classic work Legal Philosophy from 1932, Radbruch shows us his standard or baseline formulation of the concept of law: “The concept of law is a cultural concept, that is, a concept of a reality related to values … Law is the reality the meaning of which is to serve the legal value, the idea of law . The concept of law thus is oriented toward the idea of law .”8 Alexy identifies three elements in this baseline formulation: reality, idea of law, and meaning,9 and interprets the concept of reality as the positivity of law, which means the enactment and enforcement of law .10 Reality, idea and meaning constitute the first triad of this baseline formulation . Besides the first triad, according to Alexy, there are a second and a third triad . The second triad is the triad of ideas (Ideetriade) .11 Although Radbruch sometimes delineates the concept of law simply as “the cultural reality the meaning of which is to serve justice,”12 justice is by no means the sole value element of the idea of law by Radbruch . The purposiveness and the legal certainty together with justice form the second triad of Radbruch’s concept of law; in this regards the value dimension of law basically has no difference from the idea of law .13 Within purposiveness there are three types of values14: individual, collective, and work value . This is the third triad of the concept of law by Radbruch . According to this three-layer explication, we can have a simple graphic of the structure of Radbruch’s concept of law in the following:

LP (note 6), 73 . See also GRGA II (note 6), 255, “Der Begriff des Rechts ist ein Kulturbegriff, d . h . ein Begriff von einer wertbezogenen Wirklichkeit, einer Wirklichkeit, die den Sinn hat, einem Werte zu dienen . Recht ist die Wirklichkeit, die den Sinn hat, dem Rechtswerte, der Rechtsidee zu dienen . Der Rechtsbegriff ist also ausgerichtet an der Rechtsidee” . 9 See Robert Alexy, Radbruchs Rechhtsbegriff, 2016, 3, ”Damit verknüpft der Satz drei Elemente: die Wirklichkeit, die Rechtsidee und den Sinn .” Article download from the website of Pavol Jozef Šafárik University in  Košice, Slovakia: https://www .upjs .sk/public/media/16913/Gustav%20Radbruchs%20Rechtsbegriff .pdf (page number according to this pdf version, cited as RRb) . 10 Ibid .,”Mit dem Begriff der Wirklichkeit bezieht Radbruch sich auf die Positivität des Rechts, also auf seine Setzung und Durchsetzung .” 11 Alexy, RRb (note 9), 7 12 LP (note 6), 75 13 Ibid ., 107–108 . Following the more common usage, I translate the Zweckmäßigkeit as purposiveness instead of Kurt Wilk’s translation, for expediency . 14 Ibid ., 91–92, “In the whole sphere of the world of experience, there are only three kinds of subjects susceptible of absolute worth: individual human personalities, human collective personalities, and human works . According to these substrata we may distinguish three kinds of values: individual values, collective values, and work values .” 8

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Reality

Justice

Individual Values

Idea

Purposiveness

Collective Values

Meaning

Legal certainty

Work Values

From this basic formulation, especially by way of the third element of the first level, namely meaning (Sinn), Alexy tries to build up a bridge between the Southwestern Neo-Kantian understanding of “meaning” with the linguistic-analytical concept of “claim”(Anspruch) .15 By citing a sentence from Legal Philosophy, “Legal right essentially involves the claim of justice”,16 Alexy suggests that Radbruch can be understood as an early exponent of the thesis of claim to correctness (TCC), which says “that individual legal norms and decisions as well as whole legal systems necessarily make a claim to correctness .”17 Although this interpretation remains controversial, it does point out some interesting possibilities to reconstruct Radbruch’s legal philosophy in the light of new analytical tools . 3.

Cultural Science: Positivity or Cultural Reality

With clear understanding about Radbruch’s Neo-Kantian background, Alexy certainly knows that by reality Radbruch does not mean reality as such, but cultural reality . The Southwestern Neo-Kantian philosophers, like Heinrich Rickert or Emil Lask, all emphasized the distinction between the value-free sphere of nature and the value-related sphere of culture . While disciplines studying value-free objects belong to sciences of nature, disciplines studying value-related objects are sciences of culture (die Kulturwissenschaften) .18

Alexy, RRb (note 9), 4 Radbruch, LP (note 6), 64 . GRGA II (note 6), S .245, „Recht erhebt seinem Wesen nach einen Anspruch auf Gerechtigkeit .“ Note that the term ‘Recht’ here is better rendered into English as legal right, just like in Wilk’s translation . But it seems to me that Alexy understands it in its objective meaning, namely as law . I will not pursue this question any further here, for it has no great impact on Alexy’s basic idea . 17 Robert Alexy, On Necessary Relations Between Law and Morality, Ratio Juris 2 (1989), 167–183, 178 18 Staiti, Andrea, “Heinrich Rickert: 3 . Theory of Knowledge”,  The Stanford Encyclopedia of Philosophy  (Winter 2018 Edition), Edward N . Zalta  (ed .), forthcoming URL = . (2018/11/27) . See also Heinrich Rickert, Kulturwissenschaft und Naturwissenschaft, 6th and 7th expanded editions, 1926 . 15 16

Cultural Reality, Value-Serving, and Internal Reasons

Radbruch demarcates four kinds of sciences regarding their attitudes towards values: the value-blind, the evaluating, the value-relating, and the value-conquering .19 What needs to be scrutinized here is the cultural sciences, which hold the value-relating attitude . For Radbruch, the science of law is a discipline of cultural sciences, the research objects of which are value-related or cultural objects .20 But what is culture? What does Radbruch mean by cultural objects? Culture is one of Radbruch’s major lifelong concerns . He not only writes much about literature and arts under the influences of philosophy of his days, he also takes ‘culture’ as a scientific concept and methodological orientation .21 Radbruch says that “though culture is not realization of value, it is the given condition (die Gegebenheit) which has significance or meaning for the realization of values” .22 I will follow this direction and make some deliberations about it . When Alexy talks about reality, he thinks about the positivity of law, i . e . the enactment and enforcement of law . However, the enactment and enforcement cannot exhaust the reality dimension of law . Law is a human artifact, law’s enactment is the process of constructing this artifact, and law’s enforcement is the using of it . Neither the enactment nor enforcement presents the law itself . If we want to have a full grip of the reality dimension of law, we have to look into something else, some ‘given’ condition or state of affairs (die Gegebenheit) that is significant or meaningful, or maybe causally helpful, for the realization of values . According to Herbert L . A . Hart’s theory of law, law must be capable of being guidance for behavior .23 The positivity of law can do all those guiding functions only partially . Those who follow the guidance of law to make their living need not be punished by it . Those who do not follow it have no respect for the enactment . The true reality of law stands somewhere between enactment and enforcement, not on them . Law obtains its very mode of being only by way of the co-working of the validity and the effectiveness, the two elements of legal normativity . This is the insight Radbruch has given to us . I will elucidate it in the next sections .

Radbruch, LP (note 6), 49–51 Ibid ., 52, “There emerge, then, three possible views of the law: the value relating view, the view of law as a cultural fact, which marks the essence of legal science; the evaluating view, the view of law as a cultural value, which characterizes legal philosophy; and the value-conquering view of the law, the view of its essence or its non-essentiality, which is the task of a religious philosophy of law .” 21 Gustav Radbruch, Ueber den Begriff der Kultur, in GRGA IV, Kulturphilosophische und kulturhistorische Schriften, bearbeitet von Günter Spendel, 11–17 . Also see many other articles in this volume . 22 LP (note 6), 50 (translation revised) . GRGA II, 225, “Kultur ist zwar nicht Wertverwirklichung, aber Kultur ist die Gegebenheit, die die Bedeutung, den Sinn hat, Werte zu verwirklichen .“ 23 Herbert L . A . Hart, The Concept of Law, 3rd edition, 2012, 242: “So I explained in this book at some length that participants manifest their internal point of view in accepting the law as providing guides to their conduct and standards of criticism .” 19 20

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4.

Radbruch’s Insight about Legal Normativity

In chapter 5 of the Legal Philosophy, ‘Law and Morals’, Radbruch presents a highly creative analysis of legal normativity . According to Radbruch, the difference between morality and legality is not about the modes in which they impose duty upon people, but rather, about how moral norms and legal norms each take different subject matter under their regulation . Moral norm concerns each individual and his motives, but legal norms care about how people can live together, and concern therefore only their external conduct, not their motives .24 However, Radbruch also realizes that law cannot just be used to judge or measure human conduct . Law should also be commissioned to bring about human conduct conforming to law and to prevent humans from breaking the law . Therefore, legal norms must be transformed into imperatives, i . e ., prohibitions and commands that determine the human will .25 Radbruch hereby gives us a very interesting theoretical account of legal normativity . Allow me to make a long quote: “It may best be illustrated by any sentence combining a norm with an imperative, when normative contents appear in imperative form . ’Do your duty!’ Let us separate the meaning of that sentence from what carries it, the declared from the declaration . We then get, on the one hand, an existential structure, definite in time and space, brought about and effective by way of causation, a sequence of tones which sounds here and now, originating in a certain psychological process in the speaker and producing another such process in the listener . On the other hand, we get a nontemporal, nonspatial, noncausal content of significance, a moral necessity which is valid independently of the place, the time, and the effectiveness of that declaration . That sentence, then, is an imperative inasmuch as it exists and is effective, and a norm inasmuch as it signifies and is valid; it is an imperative inasmuch as a will is asserted thereby, and a norm inasmuch as an Ought is stated therein . Both are combined in the instant sentence, though by no means in every other case . The norm is nonreality intending to be realized; the imperative is reality intending to be effective . The norm intends to be an end, the imperative only a means to an end . The norm as an end has not been fulfilled before compliance with the norm itself; the imperative, as a mere means to an end, is executed upon compliance with its purpose, whether by its own motivating force or, without its intervention, by a previously existing motivation in the same direction . The norm requires a conduct complying with the norm, stemming from a motive complying with the norm; the imperative is satisfied by a conduct complying with the imperative no matter how motivated . In other words: the norm requires morality, the imperative legality – but again, even as regards that secondary imperative form of the law, legality is by no means a

24 25

LP (note 6), 82 .; GRGA II (note 6), 268 Ibid .

Cultural Reality, Value-Serving, and Internal Reasons

mode of obligation, since the very essence of the imperative is not to oblige but to determine, not to be valid but to be effective .”26 (italics added)

I summarize several points from this quote and try to make some theoretical deliberations: (1) According to Radbruch, law is a combination of norm and imperative, though not always in a perfect shape, but only by this combination does law present its very nature as a cultural object which combines meaning with effectiveness into a unity . (2) On the reality side, the psychological factors of the speakers or legislators motivate them to issue an order or to enact legal norms that are expressed in linguistic media as imperatives . These imperatives could evoke psychological processes of those to whom the command or norm is addressed, and produce their motivation, no matter what kind, to obey that norm . (3) On the ‘meaning’ side, the genuine duty or obligation can only be generated through a human subject’s understanding of a norm and the willingness to subordinate herself to the norm free from any enforcement or compulsion . Only with such understanding and willingness can we talk about the validity of a legal norm . There is no pure legal duty without calling simultaneously for a subject’s understanding and moral will . This calling is not a causing . It is something more similar to the critical reflective attitude mentioned by Hart .27 (4) We understand the meaning or significance of legal norms, though they are not real entities which can psychologically or socially cause other consequences, but those understandings that we as moral subjects acquire from law can figure in with other practical considerations, and become the internal reasons28 for actions . Since internal reasons are reasons with, or those which could produce, motivating force, we can interpret the reality component of Radbruch‘s concept of law to include the internal reason producing process or mechanism which can overcome the normative gap between reason and reality, connecting the idea element with the reality element in a new fashion differing from the theory suggested by Alexy . This is not the place to discuss the complicated problems of the internalism or externalism of reason .29 What I want to emphasize at this point is that, despite

LP (note 6), 83; GRGA II (note 6), 269 Hart (note 23), 57 About the internal and external reasons, see the classical explanation by Bernard Williams, Internal and External Reasons, reprinted in Moral Luck, 1981, 101–113 . 29 For a clear elucidation of this complicated issue, see Stephen Finlay and Mark Schroeder, “Reasons for Action: Internal vs . External”, The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), Edward N . Zalta (ed .), URL = . 26 27 28

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lack of advanced terminology and analytical skills, Radbruch is clearly aware of this problem and tries to explore it through the concept of cultural reality . 5.

Law as a serving concept

Let me quote a sentence again from Legal Philosophy: “though culture is not realization of value, it is the given condition (die Gegebenheit) which has significance or meaning for the realization of values .”30 In his early academic stage Radbruch already paid much attention to the concept of culture . Radbruch used several conceptualizations of culture in his writings .31 For the present purpose, we may say that culture is a value-related and value-realizing or -serving concept . Through the lens of a value-blind attitude, we only see natural objects, such as stone, wood, metal, bronze, etc . With the value-relating observation, natural things become a sculpture, table, knife or coins . They all are serving some purpose or value once they are seen as cultural objects . These things are sometimes serving that purpose or value unsuccessfully . But unsuccessful cultural facts or objects are still meant to be serving or realizing value . Without the value-serving function they do not qualify as cultural facts or objects . I already pointed out that the reality of law as the positivity of law, as Alexy suggested, cannot exhaust the nature of such reality . Since the law’s reality is a sort of cultural reality, I would like to suggest that serving should replace meaning as one of the fundamental components of the baseline definition . I will call it the serving thesis of law . This thesis not only asserts that law is value related and always has to serve certain values, it also reminds us that, since law is merely a human artifact, not a human agent, law cannot fulfill this serving task all by itself . We shall ask the following question: by whom and how can this serving function be fulfilled?

30 31

LP (note 6), 50 (translation revised) . GRGA II, 225 Radbruch, Ueber den Begriff der Kultur (note 21), 11–17

Cultural Reality, Value-Serving, and Internal Reasons

6.

Human Agents as serving subjects

Neil MacCormick once said, in response to Alexy’s thesis of the claim to correctness, that law claims nothing .32 Law is normative order, according to MacCormick, not a person, and is therefore incapable of having intentions or making claims .33 Although Alexy replied, “Persons raising the claim to correctness on behalf of the law may be characterized as representatives of the law,”34 this person-problem still remains, because Alexy admits that it is the person, not the law itself, which raises the claim to correctness . It is the same for the serving conception of law, for it is the human agents who are doing jobs to realize the values by means of law, and law is incapable of doing that all by itself . Law must be enacted, interpreted, applied, obeyed and enforced by people in order to actualize certain values . Human agents or persons play the key roles in this process . This also explains why I raise the issue of internal reason above, because you cannot actualize any value without the participation of human agents, and the legal ideas or values cannot be served without the possibility of evoking an agent’s motivations to act on law’s reason . So far we have answered the “by whom?” question . Regarding the issue of “how?”, there are several points I would like to address here . The first is about legal concepts . Legal concepts are the indispensable epistemic tools for lawyers or jurists . The content of life is abundant, continuous, and a flow of totality, just like Radbruch describes: “Life and man are no more composed of particular acts than the sea consists of particular waves . They are totalities; the individual acts are movements, flowing into one another, of one indivisible whole .”35

But Radbruch was also very clear about the epistemic superiority of the abstractness of the legal concepts . He pointed out to us that “legal thought requires attention to be given to the most concrete life and yet only to its most abstract outlines . Roman law excels Germanic law essentially because of its superior power of abstraction, which thus cruelly simplifies the fullness of life . The lawyer must be able to see only a juridical scheme in a living human being .”36 The simplicity, not the abundance, is the crucial merit which law possesses and which is most suitable for serving the ideas of law or legal values, because with the

Neil MacCormick, Why Law Makes No Claims, in: George Pavlakos (ed .), Law, Rights and Discourse, 2007, 59–67, 59 33 Ibid ., 59–60 34 Robert Alexy, The Dual Nature of Law, Law of Ukraine: Legal Journal vol . 2011, no . 1 (2011), 39–50, 40 35 LP (note 6), 132; GRGA II (note 6), 332 36 LP (note 6), 132; GRGA II (note 6), 333 32

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abstract juridical scheme we can transform the massive, indivisible stuff of life into an order that can best help us to achieve justice, legal certainty and purposiveness . Nevertheless, legal concepts still need to be applied by human agents, as we have already noticed, particularly by those professional jurists or lawyers who are trained to manage that juridical scheme . There is one interesting chapter in Radbruch’s Legal Philosophy titled “The Psychology of the Man of the Law” . This is a chapter often overlooked in literature, but Radbruch delivered in it some illuminating and quite meaningful messages to us . 7.

The Internal Reasons of Juridical Human

The original German title of chapter 13 of Legal Philosophy reads “Die Psychologie des Rechtsmenschen” . The English translation is “The Psychology of the Man of the Law” .37 Radbruch also calls this kind of man “der juristische Mensch”, which translator Kurt Wilk rendered as the juridical man . I will use the juridical human instead in this discussion . Joseph Raz once used the concept “Legal Man” to describe a hypothetical personal attitude that adopts only the point of view of basic norm . Such a hypothetical legal man does not and need not have psychology of any kind .38 But Radbruch, who is always a reality-oriented jurist, apparently has more interest in the human agent’s mind in the reality dimension, though as an anti-naturalist as well, he did not adopt a value-blind natural scientific version of psychology . Radbruch uses the cultural scientific version of psychology by Eduard Spranger,39 who investigates the “mental process as directed toward cultural values, as forming or understanding structures of meaning, in short, as spiritual achievements .”40 Neither Radbruch nor Spranger ever applied the concept of internal reason, but Spranger’s cultural concept of mental process is a value-serving concept which combines the justificatory reason (value) and the motivation (drive to serve that value) . The content of that chapter is abundant and I cannot discuss it in detail . I will summarize and highlight some interesting insights Radbruch delivered in the chapter . (1) Spranger gave us six ideal types of the forms of life (Lebensform) in his works: the religious, the aesthetic, the social, the political, the economic, and the theoretical . But he did not think that the juridical human belongs to any of these six main types . Rather, he thought, the juridical human is a mixed type of Lebensform . The values of justice and legal certainty are purely juridical values,

LP (note 6), 130; GRGA II (note 6), 330 Joseph Raz, The Authority of Law . Essay on Law and Morality . 1979, 140 Spranger (1882–1963) was a student of Dilthey and an influential psychologist and education researcher in the first half of the 20th century . 40 LP (note 6), 130; GRGA II (note 6), 330 37 38 39

Cultural Reality, Value-Serving, and Internal Reasons

(2)

(3)

(4)

41 42 43 44 45

but the value of purposiveness is more akin to social, political and/or cultural value .41 There are two ways to observe and analyze the juridical human: from the perspective of the objective law, and from the perspective of subjective rights . From the first perspective, that is, from the objective legal point of view, the outstanding personification of the juridical human is the judge who presides over the hearing and makes legal decisions according to the objective legal norms . The main problem or limit of this objective view of the juridical human is that professional jurists can only see things through the spectacle of legal concepts . The ideal type of judge is a concept-oriented mind (or in short, concept-mind) .42 If we inspect the juridical human from the perspective of subjective rights, the most prominent personified figure becomes the Fighter for Rights (der Kämpfer ums Recht), who asserts her rights firmly and is ready to fight for these rights strongly . This is the type who is not just sitting and making judgements, but is going to fight against those denying her rights . She is the fighter .43 Very interestingly, in order to analyze this type of juridical human, Radbruch contrasted it with the opposite type of human: the person of conscience . Radbruch calls the mindset of the fighter for rights the ‘sense of right’ or ‘sense of law’ (Rechtsgefühl) . In brief, the person of conscience is a person of moral duty and moral life, a pious Christian, who will sacrifice herself to pursuit peace, love, and humility . But Radbruch knows too well that there is another value system in European history that demands we fight for right and honor with the sense of law .44 Not until Kant, the leading philosopher of the German Enlightenment, Radbruch pointed out, could the two battling systems of values find their reconciliation . According to Kant, the fight for the rights should be deemed “the fight for the possibility of fulfilling moral duties, moral self-preservation” .45 By giving a content of moral duties to the law, Kant seems to overcome the dichotomy . However, Radbruch also realizes that the equilibrium between conscience and sense of law is just an ethical idealization, which can hardly be the psychological reality . We hardly find anyone in real life who can manage to balance these two forces very well . On the contrary, in the real world, the person of conscience always intentionally keeps herself separated from those with the sense of law who are always going to claim and defend their entitlements and rights aloud .

Ibid . LP (note 6), 131–133; GRGA II (note 6), 331–334 LP (note 6), 133; GRGA II (note 6), 334 LP (note 6), 134–135; GRGA II (note 6), 335–336 LP (note 6), 134; GRGA II (note 6), 335

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(5)

46 47 48 49 50 51

By quoting Tolstoy, Radbruch indicates that one cannot be a good Christian and a good lawyer at the same time .46 Nevertheless, the ideal type of juridical human in the shape of the Fighter for Rights is not doomed to fail completely . The rarity of her success in real life tells us about the difficulty of this quest, not about its impossibility . The Fighter for Rights is a valuable ideal type for modern law . According to Radbruch, this type is characterized by a peculiar mixture of intellectualism and passion .47 The intellectualism of mind is able to lift the particular to generality and to judge it according to justice . Passion (die Leidenschaftlichkeit), on the other hand, is going to fulfill “the abstract thought of justice with the effective fire of individual life” .48 Radbruch considers the Fighter for Rights to be a power type who can combine power in the service of interests, with devotion to ethical values at the same time . The enormous impacts the Fighter for Rights may have come from the combination of value-consciousness and desire into one single force .49 Radbruch also reminds us that such a powerful legal mind is always at risk of degeneration into lust for power, involving eagerness to affect other people without necessarily pursuing any interest . Citing The Merchant of Venice as an example, Radbruch call it the chicane (Schikane), which means, “when a right is thus to be realized for its own sake alone, with no regard to its moral or even utilitarian purposes” .50 Radbruch understands the flaws of the juridical human very clearly, including the concept-minded Judge and the uneasy balance of the Rights-Fighter who is always at risk of degenerating into the self-serving chicane law . But Radbruch does not give up on this ideal type of form of life; instead, he makes some revisions to Spranger’s original idea and portrays the Fighter of Rights as a mixed form of intellectualism and passion . I think this is because Radbruch always holds that “the law is in very unstable balance, ever threatened and forever to be restored anew, in the midst of polar tensions .”51

LP (note 6), 135; GRGA II (note 6), 336 LP (note 6), 135; GRGA II (note 6), 337 LP (note 6), 136; GRGA II (note 6), 337 Ibid . Ibid . LP (note 6), 136; GRGA II (note 6), 338

Cultural Reality, Value-Serving, and Internal Reasons

8.

The Role of Jurist

1932, the year Radbruch published his Legal Philosophy, was the dawn of an emerging, great evil . Radbruch could not foresee what was going to happen in the next decade, but the service element in his concept of law already reminds us of an important but often neglected aspect of our overall conception of law: the role of the jurist in the process of realization of legal values . Law or legal institutions cannot serve or realize any value by themselves . It is the jurists, the lawyers, or anyone who participates in the practices of law, that help to shape the reality of law . We can also find several places in Radbruch’s SLSL that hint at the role of jurists .52 In an article discussing the role of the jurist and the relevance of Radbruch’s theory to it, Roger Cotterrell delineates the role of jurist as “maintaining the idea of law as a special kind of practice and enabling that idea to flourish . One might say that the jurist’s role, on this understanding, is to safeguard and promote law’s general well-being .”53 He further points out that “Radbruch is significant here for three reasons . First, he consistently emphasises the role of jurists as one of moral responsibility for the well-being of law . Second, he presents the jurist’s view of the idea of law as necessarily highly malleable or fluid in important respects, adapted to context and varying as that context changes . Third, he doubts the utility for the jurist of any seemingly timeless philosophical ‘system’…”54

Cotterrell makes some comparisons of Dworkin’s legal philosophy with Radbruch’s theory and lists several similarities between them .55 He also points out that the third point from the quote above, i . e . Radbruch’s doubtful attitude toward the utility of any timeless philosophical system for the jurist, marks the main difference between these two great legal philosophers .56 I agree with Cotterrell fully in his emphasis on the role of the jurist and the significant relevance of Radbruch on this issue, but I will not pursue this problem here any longer . In the end stage of this paper, what I am concerned with is rearranging the baseline triad elements of Radbruch’s concept of law based on the analysis I have just presented and clarifying their relationships in brief .

When the second thesis of the Radbruch Formula, the Disregarding Thesis, talks about the intentional disregarding of the core demand of justice, the equality, by the enactment (Setzung) of positive legal norms, it is those human agents, who enact such norms, that bring about the ‘law without legal nature’ . 53 Roger Cotterrell, The Role of the Jurist: Reflections around Radbruch . Ratio Juris . Vol . 26 No . 4 December 2013, 510–522, 511 . 54 Ibid ., 513 55 Ibid ., 513–514 56 Ibid ., 514 52

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9.

Final Remark: Radbruch’s Concept of Law reinterpreted

The three elements Alexy suggested are reality, idea and meaning . I have suggested above interpreting reality as cultural reality and replacing meaning with serving . Now I am going to set out the elements in a more comprehensive theoretical structure . The elements are: Cultural Reality, Value Serving, and Internal Reasons . We may recast the concept of law as this: “Law is the cultural reality which aims to serve or realize legal values by means of the internal reasons of the jurists and the citizens” .

There are several things I would like to say about this concept of law as my final remarks: (1) The main internal reasons for jurists are intellectualism and value conscience . The combination of them with interest-seeking desire can be very powerful and dangerous at the same time . But it is the price which must be paid for a modern state to build up a legal system for a value-relativist society . (2) The cultural reality of law should include the realizing process of legal values . Legal values often conflict with each other, and the realizing process manifests the complicated dynamics inherent in every real legal system . (3) Although it contains some revisions, I still think that this concept of law is a possible interpretation of Radbruch’s original idea . One of his great legal philosophical contributions is to demarcate the unique domain of law by using the idea of cultural reality, which includes not just legal norms, but also all the reasons, interpretations, attitudes, and communications about the law and the serving of legal values . I will call this domain of law the normative field of law, but this is of course too big an issue to be discussed here . Professor Dr . iur . Chueh-an (Andrew) Yen College of Law, National Taiwan University, Email: filawsof@ntu .edu .tw

Law as an Artefact IMER B. FLORES*1

Abstract

In this paper, I aim to explore the claim that law is an artefact and the implications to our understanding of law and legal entities . For that purpose, I intend to review the general theory of artefacts and to revisit the artefactual nature of law to determine what sort of sub-kind law is . I argue that the relevant authorial intention is not the productive but the reproductive one, i e the collective recognition . Finally, I conclude that law and other legal entities are indeed artefacts broadly speaking, but they are much more than mere artefacts, i e complex institutions and institutional practices, comprising different sub-institutions, which require not only recognition, but also (re)evaluation and (re)interpretation, as I suggest by pointing to the forms of government, in general, and to democracy, in particular . Keywords:

Artefact, Function, Institution, Evaluation, Interpretation, Recognition, Law,

Nature

1.

The Nature of Law

Creating – and recreating – humankind by animating a figure made of clay and by bringing the fire from the sun to spark life in human beings and even in human creations are both at the centre of the classical myth of Prometheus and at the core of the modern parable of Frankenstein . Bear in mind that the former created – and recreated – humankind, and the latter created a human-like creature . The metaphor reinforces a dual claim: (1) law is a human production – and reproduction – and as such has a

The author is grateful not only to Kenneth M . Ehrenberg, Kenneth E . Himma, and Wilfrid J . Waluchow for their commentaries on earlier versions and exchanges, but also to Marco Mazzocca and other participants at the 1st IVR Japan International Conference, Doshisha University, Kyoto ( Japan) for their comments . *

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function, purpose, or use; and (2) law is a human-like creature and as such has a life of its own . Let me begin by evoking John Finnis, who opened the entry on “The Nature of Law” for the Cambridge Companion to Philosophy of Law by acknowledging: “Recent work in philosophy of law includes many discussions of law’s ‘nature or essence’, understood as those properties of law that are necessary, or at least important and typical or characteristic of ‘law as such, wherever it may be found’” . Additionally, he summarized the debate: “Some hold that law has no nature; only natural objects have a nature, and law is artefactual, not natural . Others reply that there are kinds of artefacts: paper clips differ in nature from printer drivers” . And, most importantly, he advanced: “Attention is shifting promisingly to paradigms of artefact more relevant to law than paper clips” .1 Speaking for myself, I side with those who claim: (1) law is not a natural object but has a “nature”; (2) law’s nature is not and cannot be “natural” and so it is and must be “artificial”; and (3) law’s “artificial nature”, suggests that law is a human artefact, i e “artefactual”, and can be constructed and reconstructed, imagined and reimagined, made and remade .2 However, if law is an artefactual kind, of what sub-kind is it? Clearly “paper clips” are different from “printer drivers”, and most importantly from “borders” and “money” . In this paper, I argue that law is indeed an artefact broadly speaking but it is much more than a mere artefact, i e a complex institution and institutional practice, comprising different sub-institutions . Hence, I intend to explore the general theory of artefacts and the artefactual nature of law to determine what sort of sub-kind law is and which are the relevant conditions for its apprehension, and of other sub-institutions . 2.

The General Theory of Artefacts

According to different dictionaries, such as the Webster’s Encyclopedic Unabridged Dictionary of the English Language: “artefact” (or “artifact” in US English) is a noun: “any object made by human beings, especially with a view to subsequent use”, and more specifically “a handmade or mass-produced object”, which derives from the Latin words arte, ablative of ars (art), and factum, the past participle of the verb facere (to make), i e literally means “made with art”; and “artefactual” (or “artifactual” in US English) is its adjective and qualifies “something made with skill by human beings” . John Finnis, The Nature of Law, in: Cambridge Companion to Philosophy of Law, ed . John Tasioulas (ed .), 2017 . In addition to John Gardner and Joseph Raz, he refers to Luka Burazin, Brian Leiter, Andrei Marmor, Mark Murphy, Frederick Schauer, and myself: Cf . Imer B . Flores, The Problem about the Nature of Law visà-vis Legal Rationality Revisited: Towards an Integrative Jurisprudence, in: Philosophical Foundations of the Nature of Law, eds . Wilfrid J . Waluchow and Stefan Sciaraffa, 2013, 101–126 . 2 Cf . Roberto Mangabeira Unger, Social Theory: Its Situation and Its Task A Critical Introduction to Politics, a Work in Constructive Social Theory, 1987, 1: “[A] society is made and imagined, it is a human artefact rather than the expression of an underlying natural order .” 1

Law as an Artefact

Analogously, “artificial”, also an adjective, refers to “something made by human skill or produced by humans, as opposed to natural”, and so it is used to distinguish “artificial” objects from “natural” ones . Actually, the dichotomy natural-artificial can be traced all the way back to Aristotle, who affirmed: “Of things that exist… some exist by nature”, such as “animals… plants and the simple bodies (earth, fire, air, water)”, and “some exist from other causes”, such as “a bed and a coat” . He added that the latter are “artificial products” and “products of art” .3 Although both terms, i e “artefactual” and “artificial”, are closely related in its reference to objects made or produced by human beings, they are not coextensive: All artefacts are artificial objects, but not all artificial objects are artefacts . In short, some objects can owe their existence to either natural or artificial causes, but others can only owe it to artificial ones . On the one hand, a flower or a lake can be either a natural object, i e a (natural) flower or a (natural) lake, or an artificial one, i e an artificial flower or an artificial lake . On the other hand, a chair or a hammer can only be an artificial object, since it cannot be a natural one, and as such it is clearly an artefact . In the former, the artificial object is a recreation or reproduction of the natural one, which serves as its archetype; whereas, in the latter, the artificial object, i e the first artefact of a class, is a new creation or production since it does not exist beforehand in a natural form and becomes a prototype for the subsequent (re)creation or (re)production of future members of the class . Within the artificial kind, there are sub-kinds . Certainly artefacts, which are artificial objects created ex profeso for a purpose or use, are among them . Moreover, some natural objects can be assigned, beyond their nature, an additional purpose or use, which is an artificial one, and in that sense it is (or has become) an artefact . For instance, a river, which is a natural object, i e a large natural stream of water, can also serve an additional purpose or use, which is clearly an artificial one, as a border to divide Mexico and the United States of America as in the case of the Rio Grande aka Río Bravo del Norte .4 Anyway, I will both analyse the general theory of artefacts and criticise it, by focusing on the entry “Artifact” prepared originally and revised later by Risto Hilpinen5 for the Stanford Encyclopedia of Philosophy In his account, he postulates what appears to be the canonical definition: “An artifact may be defined as an object that has been intentionally made or produced for a certain purpose .” Although he acknowledges: “in the anthropological and archaeological literature the word artifact is used in a wider Aristotle, Physica, trans . R .P . Hardie and R . K . Gaye, in: The Basic Works of Aristotle, ed . R . McKeon, 1941, II, 1, 192b, 8–32 4 Cf . Kenneth E . Himma, The Conceptual Function of Law: Law, Coercion, and Keeping the Peace, in: Law as an Artefact, ed . Luka Burazin et al , 2018 . 5 Risto Hilpinen, Artifact, in: The Stanford Encyclopedia of Philosophy, ed . E .N . Zalta, 1 (available at https:// plato .stanford .edu/archives/sum2018/entries/artifact/) . It is worth to mention that Beth Preston prepared a new entry posted ex post ( July 18, 2018), which replaced the previous one (available at https://plato .stanford .edu/entries/artifact/) . 3

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sense for all objects produced by human activities… either intentionally or unintentionally”, he opts for a narrower sense, associated with the scientific usage, restricting its use only to those produced “intentionally” . And so, applies the term artefact to “the intentional (or intended) product of an agent’s actions” . In the course of the entry, Hilpinen provides what seems to be the orthodox formulation of the general theory of artefacts . He commences by affirming that an artefact necessarily has an author; and, thus artefact and author can be regarded as correlative concepts: (A1)

An object is an artifact if and only if it has an author .

The correlation between artefact and author is indeed very strong to the extent not only that an authorless artefact appears to be a contradiction in terms but also that any artificial object, including artefacts, as a human creation is a continuation of the author and as such sometimes can be even equated with its author . Let me recall that in Mary Shelley’s Frankenstein or the Modern Prometheus, the nameless monster has been identified with the name of his maker, i e creator and creature .6 Furthermore, Hilpinen clarified that the “authorship” can be of an individual author or several authors, including not only those who designed the artefact and those who actually produced it, but also those who use and reproduce it .7 So, there can be “individually produced artefacts” or “collectively produced artefacts” . In any case, produced artefacts – regardless of being individually or collectively produced – can be either intended (products) or unintended (by-products) . For instance, a path through a forest can be considered not only as a natural object, but also as an artefact, once it has a purpose or use, as a road, regardless of being an intended product, which was created for that specific reason, or an unintended by-product, which resulted from a person’s intention of doing commerce with those in the other side and her habit of following the same route when walking through the forest . Similarly, artefacts can be concrete or physical objects (a wall) and abstract or non-physical objects (a border) .8 Likewise, artefacts can be simple or complex objects . Compare a statue made from some pre-existing material or materials by successive intentional modifications; and, a knife made by attaching a wooden handle to a metal blade; a bicycle

Mary Shelley, Frankenstein or the Modern Prometheus, 1969 (original publication: 1818; and, taken from the 3rd rev . ed .: 1831) 7 Luka Burazin, Can There Be an Artifact Theory of Law?, Ratio Juris, 29 (2016), 385–401 . 8 Cf . John R . Searle, The Construction of Social Reality, 1995, 39–40: “a wall gradually evolves from being a physical barrier to being a symbolic barrier . Imagine that the wall gradually decays so that the only thing left is a line of stones… But imagine that the inhabitants and their neighbors continue to recognize the line of stones as marking the boundary of the territory… The line of stones now has a function that is not performed in virtue of sheer physics but in virtue of collective intentionality… The line of stones performs the same function as a physical barrier but it does not do so in virtue of its physical construction, but because it has been collectively assigned a new status, the status of a boundary marker .” 6

Law as an Artefact

made by linking different artefacts designed to be parts of a whole, i e brake, chain, frame, pedals, seat and wheels; or a violin by joining two or more distinct artefacts in an intended way, such as a violin body and a violin bow, with their respective sub-parts .9 What’s more, it is possible to distinguish between the intended character of the artefact, conforming to the author’s productive intentions, and its actual character, corresponding to its real properties . For example, I intended to produce a bench, but what I truly produced is a chair . Also, all artefacts have been constructed or made – and even reconstructed or remade – to serve a certain function The “intended proper functions” are consistent with a “sortal” or “substantival” description, which determines the identity of the object and the criteria by which it can be classified and distinguished .10 It is worth mentioning that artefacts do have very concrete functions, which are proper functions, but that they can serve other improper functions as well . For instance, a hammer is intended properly to drive nails into a surface, say into a wall to hang a painting, and improperly to hit someone in the head, say as a means of self-defence . Additionally, in my opinion, an artefact has at least one function, but nothing precludes that it has more than one . Hilpinen continues by accentuating some conditions, which he characterized as: 1) Dependence Condition (DEP); 2) Success Condition (SUC); and 3) Acceptance Condition (ACC):11 (DEP) The existence and some of the properties of an artefact depend on an author’s intention to make an object of certain kind . (SUC) An object is an artefact made by an author only if it satisfies some sortal description included in the author’s productive intention . (ACC) An object is an artefact made by an author only if it is accepted as satisfying some sortal description included in the author’s productive intention . These conditions focus too much on the author’s productive intention and hence appear to miss – or at least to undermine – the importance of a reproductive intention . For this reason, DEP has to be amended to leave room for a more complex Intention Condition (INT), which comprises both productive and reproductive intentions:12 (INT) An object is an artefact made by an author only if it results from some sortal description included in the author’s productive and reproductive intention .

9 Hilpinen (footnote 5), 3 10 Ibid . 2 11 Ibid . 4–5 12 Jonathan Crowe, Law as an Artifact Kind, Monash University Law Review, 40 (2015), 741

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Remember my previous example of intending to produce a bench but actually producing a chair and hence of reproducing an object that will be recognised not as a bench but as a chair . Additionally, some artefacts acquire a life of their own once they are created and become independent of their creator . Please recollect that in Frankenstein the creature has a life of his own, turns against his creator, and even demands obedience from him: “You are my creator, but I am your master; – Obey!”13 Let me clarify that one thing is having an intention and even an intentional or intended product, and other is that the object has to match exactly that description . Remember also that in Frankenstein the creator despises, disowns, and even rejects his creature, but the creature is nevertheless the result of the creator’s intention . Anyway, as Hiplinen points out “An author’s productive activity may be evaluated on the basis of the relationships among the intended character of an artefact, its actual character, and a purpose F” . The resulting evaluations of such relationships can be characterized as:14 (E1) (E2) (E3) […] (E1)

The degree of fit between the intended character and the actual character of an object, The degree of fit between the intended character of an object and the purpose F, i e the suitability of the intended object for the purpose F, and The degree of fit between the actual character of an object and the purpose F, i e the suitability of the actual object for the purpose F determines whether an artifact is a successful embodiment of the author’s intentions, (E2) determines whether the character that the authors intends to give to an artifact is suitable for the purpose F, and (E3) determines whether the author has succeeded in making an object that is in fact suitable for the purpose F .

Therefore, “The study of artifacts (qua artifacts) is intrinsically evaluative, since viewing an object as an artifact means viewing it in the light of intentions and purposes .” In that sense, we always evaluate: whether an artefact is a successful embodiment of the author’s intentions to produce it (E1); whether it is suitable for the purpose intended (E2); and whether the author has succeeded in making an object that is actually suitable for that purpose (E3) . Since artefacts are and must be evaluated, let me call this Evaluative Condition (EVA) . Keep in mind that Hilpinen’s characterization implies not only evaluation, but also interpretation of such evaluations, as well as further developments and improvements in the light of its intentions and purposes to the extent that some artefacts are not

13 14

Shelley (footnote 6), 167 Hilpinen (footnote 5), 5

Law as an Artefact

merely constructed or made but can be reconstructed and remade as well . Following Ronald Dworkin, an artefact is not only evaluated and revaluated but also interpreted and reinterpreted: “People now try to impose meaning on the institution – to see its best light – and then to restructure it in the light of that meaning .”15 Let me suggest that some artefacts have a clearly defined nature to the extent that there is a settled – once and for all – criterion re their nature and can neither be nor become something else: A chair will always be a chair… Unless it is completely destroyed or burn to ashes, if an actual chair becomes dissembled it still is a potential chair; once we put the pieces back together it will be a chair again . In that sense, artefacts might appear to be static and rigid . Moreover, other artefacts do not have a clearly defined nature to the extent that they are interpretive and tend to be dynamic and malleable .16 In my opinion, a successful account of the nature of law will have to explain its existence and persistence through time,17 as well as its continuity/stability, i e fixity, on one side, and its flexibility, on the other .18 Finally, Hilpinen concluded following Amie L . Thomasson: “Artifacts in the wide sense form an ontologically heterogeneous collection of entities which extends across the traditional philosophical boundaries between concreta and abstracta, and substantial objects, events, and processes .”19 Certainly, due to this heterogeneity it is necessary to inquiry what specifies the case of law as an artefact, as a functional20 or even as an institutional kind .21 3.

The “Artefactual” Nature of Law

Although it has been taken for granted and even invoked, as something obvious or even self-evident, that “law is an artefact”, we lacked a more comprehensive analysis and critique of its artefactuality, until very recently when John Gardner and Brian Leiter began to make explicit some of the applications and implications of the claim .

Ronald Dworkin, Law’s Empire, 1986, 47 Cf . Frederick Schauer, Law as a Malleable Artifact, in: Law as an Artefact, eds . Luka Burazin et al , 2018 . Cf . Kenneth M . Ehrenberg, Law as Plan and Artefact, Jurisprudence, 7/2 (2016), 325–340 Cf . Imer B . Flores, The Living Tree Constitutionalism: Fixity and Flexibility, Problema Anuario de Filosofía y Teoría del Derecho, 3 (2009), 37–74 . 19 Hilpinen (footnote 5), 6; and Amie L . Thomasson, Fiction and Metaphysics, 1999, xii, 117–120 20 Cf . Michael Moore, Law as a Functional Kind, in: Natural Law Theory Contemporary Essays, ed . R . P . George, 188–242; and, Kenneth M . Ehrenberg, K . M ., Defending the Possibility of a Neutral Functional Theory of Law, Oxford Journal of Legal Studies, 29 (2009), 91–113; Functions in Jurisprudential Methodology, Philosophy Compass, 8 (2013), 447–456; and Functions of Law, 2016 . 21 Joseph Raz, The Institutional Nature of Law, The Modern Law Review, 38 (1975), 489–503; Neil MacCormick and Otta Weinberger, An Institutional Theory of Law New Approaches to Legal Positivism, 1986; and, Neil MacCormick, Institutions of Law An Essay in Legal Theory, 2007 15 16 17 18

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Hence, I applaud the idea of assessing it, by considering “law as an artefact”22 and by wondering if there is an “artefact theory of law” .23 Gardner described law as a genre (of artefacts) with legal systems as basic units and laws as sub-units, i e its species (of artefacts belonging to that genre), and as the practice of engaging with them . Firstly, he affirmed: “Law, understood as a genre of artefacts, is a genre made up of systems of norms together with the norms that belong to those systems… legal systems are the basic units of law, and laws are essential (but not the only) sub-units .”24 Secondly, he added: “The abstract noun “law” can be used to refer to a practice as well as genre of artefacts”; and clarified: “A practice is made up not of artefacts, but of actions and activities . Many practices are practices of engaging with a certain, often eponymous, genre of artefacts .”25 In sum, law is both a genre of artefacts, including its species, and a practice of engaging with them . Leiter, on his part, was adamant: (1) in accounting for the claim that law is an artefact; (2) in announcing that even natural law theorists do not deny the claim; (3) in averring that legal positivists do accept the claim; and (4) in avowing that anyone who might wish to deny the claim are not of his concern:26 The concept of law is the concept of an artefact, that is, something that necessarily owes its existence to human activities intended to create that artefact . Even John Finnis, our leading natural law theorist, does not deny this point . I certainly do not understand Kelsen, Hart, Raz, Dickson, or Shapiro to deny this claim . Those who might want to deny that law is an artefact concept are not my concern here…

In what follows, we will reassess the artefactual nature of law . Let me suggest that the claim that “law is an artefact” was popularized by those following the contractarian theories of Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Immanuel Kant, among others, and has been assumed as an undisputed fact mainly by legal positivists and even by some natural law lawyers, who seem to agree that law is conventional (all the way or at least in part) . Nevertheless, the claim can be traced to epicureans and sophists, i e to Glaucon, who – according to Plato – affirmed: “They [i e human beings] accordingly proceed to make laws and mutual agreements, and what the law lays down they call lawful and right”;27 and, to Lycophron, who – according to Aristotle – asserted: “law is only a convention, ‘a surety to one another of justice’” .28

Crowe (footnote 12), 737–757 Burazin (footnote 7), 385–401 John Gardner, The Legality of Law, Ratio Juris, 17 (2004), 171 Ibid . 174 Brian Leiter, The Demarcation Problem in Jurisprudence: A New Case for Skepticism, Oxford Journal of Legal Studies, 31 (2011), 666 27 Plato, The Republic, trans . D . Lee, 1955, II, 359a 28 Aristotle, Politics, trans . B . Jowett, in: The Basic Works of Aristotle, ed . R . McKeon, 1941, III, 9, 1280b, 9–10 22 23 24 25 26

Law as an Artefact

As advanced, I am very sympathetic of Jonathan Crowe’s quest to examine more closely the claim “law as an artefact” and its “implications for our understanding of law” . I agree with him that “law is not straightforwardly covered by the most common definition of an artifact” and “that it is possible to extend the definition to include it” . However, I disagree with him that it is because “not all laws have authors”, v gr “customary laws”, and that it is necessary to cover “other unintentionally created artifacts” .29 Keep in mind that an artefact is a human product and so there cannot be an authorless artefact; and, similarly, an artefact is the product or result of a human intention and thus there cannot be an unintentional artefact . As we said before: artefacts have necessarily an author and are the product of a human intention, but as we will see, law is a collectively accepted product . Regardless of whether or not law has an identifiable author, it is the result of human agency . In that sense, law’s artefactual nature follows neither from an individual nor a collective authorial intention aka production but from a collective recognition aka reproduction .30 On one side, what appears to be unintentional or unintended artefacts are fortuitous or serendipitous by-products deriving from an author’s productive intention, which do not correspond necessarily to the intentional or intended product, but are artefacts nevertheless .31 Still, there is something to be said for Crowe’s “tree bench” example:32 Tree Bench: A tree falls down in the middle of a village . Workers in the village begin to regularly use the tree as a place to sit while they eat their lunch . They think and speak about the tree as they would a bench placed there for their use . They say things to each other like “I’ll meet you on the bench at lunchtime” .

I accept that “[i]t seems at least plausible that the fallen tree in this example has become a bench”, but “its membership of the artefact kind bench cannot be traced to an authorial intention” . Certainly, if we focus on the tree itself or the fact that it is a fallen tree it its clear that we are talking of a natural object per se and not of a result of an

Crowe (footnote 12), 737 Cf . Searle (footnote 8); and, Making the Social World The Structure of Human Civilization, 2010; and, Raimo Tuomela, The Philosophy of Social Practices A Collective Acceptance View, 2002; and, Social Ontology Collective Intentionality and Group Agents, 2013 . 31 The term “serendipity” means “a happy accident”, “fortunate happenstance” or “pleasant surprise” and was coined by Horace Walpole in 1754 in a letter he wrote to his friend Horace Mann, referring to a Persian “silly fairy tale, called The Three Princes of Serendip: as their Highnesses travelled, they were always making discoveries, by accidents and sagacity, of things which were not in quest of: for instance, one of them discovered that a mule blind of the right eye had travelled the same road lately, because the grass was only eaten on the left side, where it was worse than on the right” (1937–1983, 407–8) . “Serendip” was the old Persian name for Sri Lanka (aka Ceylon) and the notion of “serendipity” is a common occurrence throughout the history of scientific and technological innovation: examples are the accidental discovery of penicillin by Alexander Fleming in 1928; the invention of the microwave oven by Percy Spencer in 1945; and the invention of the post-it note by Spencer Silver in 1968 . 32 Crowe (footnote 12), 740 29 30

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author’s productive intention . However, if we emphasize its purpose or use as a bench it is indeed a “naturefact”, i e a natural object used as an artefact or a nature made artefact .33 But even if we cannot identify an author’s productive intention, individual or collective, it is possible to identify it as an artefact due to the collective recognition, of all those that use it or are willing to use it as a bench . It can be said further that a “naturefact” once altered or modified by human beings to improve its usability for some purpose may became a genuine artefact . On the other, customary laws are not unintentional or unintended by-products, but intentional or intended products, deriving not from human authors’ productive intention but from human agents’ reproductive intention . It is worth noting that the concept of “customary law” has two parts: (1) inveterata consuetudo (i e an inveterate custom or practice); and (2) opinio iuris seu necessitatis (i e an opinion of it as legally necessary or binding) . Thus, a customary law implies a long-standing binding practice, which results from the collective recognition: mores sunt tacitus consensus populi longa consuetudine inveteratus (i e customs are a tacit consensus of the people through a long inveterate practice) . In that sense, an artefact can result not only from human’s productive intention but also from human’s reproductive intention . Therefore, I believe that Crowe’s strategy is unnecessary and that it will amount to sneaking law – laws in general, and customary laws, in particular – as unintentional or unintended artefacts, through the back door as bastard siblings of the artefactual kind, when they deserve to enter in the front door as legitimate heirs of the kind to which they belong . Regardless of appearing to be unconscious they are conscious and so intentional, especially if we focus not on its production but on its reproduction, i e recognition . Let me suggest at this point that the word “law” corresponds to the Latin ius, nominative of the verb iubere (i e to command or to order), and was defined as ars boni et æqui (i e art of good and fair), and by extension the art of commanding or ordering what is good and fair, which by all means is not a concrete function or purpose but an abstract one . In any event, the authorial intention is coupled with the function or purpose of the artefact, to the extent that artefacts definitely belong to the functional or purposive kind . Actually, regarding the characteristic features of artefacts “functional properties seem to be particularly important” to the extent that “[a] recent study showed that functional attributes are viewed as far more salient than physical and structural features in classifying objects as members of the artifact categories, while the opposite holds for natural kinds .”34 In short, functional attributes are more important than other features in classifying artefacts and even some natural kinds, such as flying is of (almost all) birds, with the exceptions of emus, ostriches and penguins, to the extent that the only flying non-bird vertebrates are bats .35 Hiplinen (footnote 5), 1 Crowe (footnote 12), 741 Cf . Frederick Schauer, On the Nature of the Nature of Law, Archiv für Rechts- und Sozialphilosophie, 98/4 (2012), 457–467; and Necessity, Importance and the Nature of Law, in: Neutrality and Theory of Law, eds . 33 34 35

Law as an Artefact

An object that performs the function of a particular type of artefact while lacking most of its properties may appear to be a member of that class . Consider the following example: Shoe Hammer: Someone had to hang a painting in a wall and had nails but not a hammer . That someone was wearing a pair of shoes, took off a shoe, used it as if it were a hammer to drive a nail in the wall to hang the painting, and put the shoe back on . The painting has been hanging in the wall for several years now .

Moreover, it is clear that the shoe remains one and is not a hammer since it lacks its qualities, i e hammer-hood: typically, a metal head and a wood handle, and so does not belong to that kind, regardless of the author’s intention to use it as such and of having more or less SUC in doing it . Let me suggest that SUC does not rule out the possibility of defective members of a kind: “it rules out fundamental failures, as opposed to flawed examples .”36 In sum, since counting with an INT and having more or less SUC in producing something are not enough in some cases; certainly, something like ACC and EVA are necessary . On the one hand, although artefacts can be produced individually or collectively, some artificial objects, i e institutional kinds, cannot be produced individually and will require a collective recognition, which will count not as its production but as its reproduction, and so as securing a collective ACC . On the other hand, since artefacts are and will be evaluated, we can “assess whether something is the right kind of thing to count as a member of the artifact kind” .37 As Crowe pointed out: “an artifact’s function itself plays a particular causal role in both our explanations of the artifact’s kind membership and our evaluations of its success or failure as an example of its kind .”38 The integration between being and value (ascribed to that being), i e explanation and evaluation, was captured by Lon L . Fuller’s reflection:39 Common sense tells us that there must be a distinction between a law and a good law… Common sense tells me that there is a clear distinction between a thing’s being a steam engine and its being a good steam engine . Yet if I have a dubious assemblage of wheels, gears, and pistons before me and I ask, “Is this a steam engine?” it is clear that this inquiry overlaps mightily with the question: “Is this a good steam engine?” In the field of purposive human activity, which includes both steam engines and the law, value and being are not two different things, but two aspects of an integral reality .

Jordi Ferrer Beltrán et al ., 2013, 17–31; and Flores (footnote 1), 103 . 36 Crowe (footnote 12), 743 37 Ibid . 748 38 Ibid . 749 39 Lon L . Fuller, The Law in Quest of Itself, 1940, 10–11

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Reconsider the “shoe hammer” example, in spite of being used and somehow accepted at least once as a hammer to drive nails by an individual author the shoe remains being one . Even if it becomes collectively – and widely – accepted as a hammer, and people start asking to borrow the “shoe hammer” for hammering purposes it will always be a shoe, since it does not meet the criteria to be a hammer but does meet the one of a shoe . Recall the famous Hart-Fuller debate re the “No vehicles in the park” provision,40 in which Fuller wonders whether a Second World War truck can be placed as a “memorial or monument” in the park or not . In my opinion, it will be absurd to conclude that the truck, which is indeed a “vehicle”, is prohibited in the “park” . Clearly the truck did not change its artefactual nature from a vehicle to a memorial or monument, and will continue to be a vehicle . Nonetheless, its function or purpose shifted from a vehicle to a memorial or monument, suggesting that Second World War truck counts as a memorial or monument in such context . What does this tell us about artefacts? Some artefacts can perform their functions solely in virtue of causal and other brute features, in this case as a “vehicle”, while others can perform their functions only by way of collective recognition, in this case as a “memorial or monument” .41 4.

Towards an Institutional Theory of Law: The Case of Democracy

Therefore, institutions – including law and other legal entities – can be ACC and EVA, and even placed somewhere in a continuum ranging all the way from complete failures to complete successes, from best/better to worst/worse from bad to good, from corrupt to incorrupt, from impure to pure, and so on . For instance, the different forms of government have been classified according to the number of relevant agent(s) and their degree of success-failure, on one side, into good, incorrupt, or pure forms – autocracy (one), aristocracy (few) and democracy (many/all) – and, on the other, into bad, corrupt, or impure forms – tyranny (one), oligarchy (few) and demagogy (many/ all) .42 Similarly, the different forms of governments – following the insight of Winston Churchill’s dictum – can be placed in a spectrum, in which democracy is indeed the worst/worse of the good, incorrupt, or pure ones and the best/better re the rest, i e the bad, corrupt, or impure ones: “Many forms of Government have been tried, and Cf . H .L .A . Hart, Positivism and the Separation of Law and Morals, Harvard Law Review, 71 (1958) 593– 629; and Lon L . Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart”, Harvard Law Review, 71 (1958): 630–672 . 41 Cf . Searle (footnote 8), 124 42 Imer B . Flores, Ronald Dworkin’s Justice for Hedgehogs and Partnership Conception of Democracy (With a Comment to Jeremy Waldron’s “A Majority in the Lifeboat”)”, Problema Anuario de Filosofía y Teoría del Derecho, 4 (2010), 76–77 40

Law as an Artefact

will be tried in this world of sin and woe . No one pretends that democracy is perfect or all-wise . Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time…”43 Imer B . Flores c/o Instituto de Investigaciones Jurídicas, UNAM, Circuito Mtro . Mario de la Cueva S/N, 04510, Ciudad de México, Mexico, imer@unam .mx

43

Winston Churchill, Parliament Bill . Speech on the House of Commons, November 11, 1947

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Moral Reasoning of Judges and the Rule of Law1 TERESA CHIRKOWSKA-SMOLAK / MAREK SMOLAK

Abstract

Aharon Barak argues that, the rule of law requires that rights limitations should be justified in judicial review proceedings and any decision concerning rights limitations requires reference to moral arguments . Judges possess special moral competences, because they conduct “moral thought experiments,” which is a part of their professional duties . We demonstrate, that conducting” moral thought experiments” judges do not acquire special moral powers . Therefore, we suggest that more suitable for the idea of the rule of law than Aharon Barak’ idea is David Dyzenhaus’ idea of ‘deference as respect’ . This idea requires that judges pay special attention to the arguments put forward by the executive or legislative authorities, or to the rationales that can be reconstructed . Keywords: rule of law, moral competences, reflective equilibrium, moral reasoning, moral

psychology, deference as respect 1.

Introduction

According to Aharon Barak, the rule of law requires that state action that limits rights should be justified in judicial review proceedings . He also adds that judges are uniquely well positioned to conduct proportionality analysis and should not defer to the other branches of government . Therefore, judicial review is democratic and courts should not be concerned about its legitimacy . Defenders, like A . Barak (and also critics) of judicial review, assume that a special moral capacity of judges is needed for a correct constitutional rights limitations .2 The best argument formulated in this area is that judges have the opporThis paper was produced within the framework of research funded by the National Science Centre (Narodowe Centrum Nauki) (OPUS 8 2014/15/B/HS5/00650) . 2 Aharon Barak, Proportionality: Constitutional Rights and their Limitations, 2012, 245 . 1

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tunity to conduct “moral thought experiments”, which is a part of their professional duties, therefore judges are better suited to performing this particular type of moral reasoning than others–such as legislators .3 On the basis of well-tested psychological theories of moral development, Georg Lind4 developed the Dual Aspect Model of Moral Behavior . He postulates that we can (and must) foster moral competence . Based on his educational theory of moral development, Lind suggests a method of moral education, The Konstanz Method of Dilemma Discussion (KMDD) . We may say that judges have more opportunities for moral learning, because they have elaborate training, in that they discuss stories and weigh opposing arguments . And moral competence, just as other abilities, is most effectively fostered through its frequent use . We can illustrate this kind of argumentation by introducing quasi syllogism: 1 . Any decision concerning rights limitations requires reference to moral arguments; 2 . Justification of decisions on the basis of moral arguments, requires special moral competences; 3 . Judges have special moral competences, because judges have the opportunity to conduct “moral thought experiments,” which is a part of their professional duties .5

The good example of this position was formulated by Michael S . Moore who argues: Judges are better positioned for this kind of moral insight [related to the rights persons possess] than are legislatures because judges have moral thought experiments presented to them every day with the kind of detail and concrete personal involvement needed for moral insight […] . One might well think that moral insight is best generated at the level of particular cases, giving judicial beliefs greater epistemic authority than that possessed by legislative beliefs on the same subjects .6

The argument goes this way: any decisions non-concerning rights limitations are usually taken on utilitarian grounds, which mainly require engagement with a complex calculation of benefits and costs, while decisions concerning rights limitations are fun-

Susanna Mancini, Michel Rosenfeld, The Judge as Moral Arbiter? The Case of Abortion, in: Constitutional Topography: Values and Constitutions eds . András Sajó & Renáta Uitz, 2010, 2–6 . 4 Georg Lind has used the Dual-Aspect-Theory to develop a new approach to the measurement of affective and cognitive aspects of moral behavior as distinct yet inseparable aspects, see: Georg Lind, Thirty Years of the Moral Judgment Test-Support for the Dual-Aspect Theory of Moral Development, in: Estudos e pesquisas em psicologia do desenvolvimento e da personalidade: uma homenagem a Angela Biaggio, ed . Claudio S . Hutz & Luciano Kleber de Souza, 2013,143–170 . 5 Jeremy Waldron, Judges as Moral Reasoners, International Journal of Constitutional Law 7 (2009), 2–24 . 6 Michael S .Moore, Law as a Functional Kind, in: Natural Law Theory: Contemporary Essays, ed . Robert P . George, 1992, 188–230 . 3

Moral Reasoning of Judges and the Rule of Law

damentally moral in the sense that they call for a careful consideration of the philosophical justifications regarding the character and mutual relationships among such values as human dignity, self-respect, autonomy and the like .7 Besides the arguments which where formulated against premise1 and 2 by Wojciech Sadurski, we are of the view that there is no justification for believing that such “experiments,” triggered by specific, factual situations, make judges privileged over other political actors like legislators . Since people are usually unaware of the factors affecting their moral judgment, we assume that judges are similarly unaware of what drives their moral judgments and thus the assumption that judges have special moral competences, because judges have the opportunity to conduct “moral thought experiments,” which is a part of their professional duties that their decisions are rational is mistaken .8 To clarify what “moral thought experiments” mean, we may be helped by the description of “reflective equilibrium” by John Rawls, taken as an expository device for the model of moral reasoning . The scope of this article does not allow a broader presentation of the method of reflective equilibrium conceived by J . Rawls . Suffice it to observe that it consists firstly in identifying the so called prudent/reasonable intuitional individual moral judgements, then in formulating moral principles which explicate those judgements, and finally in formulating philosophical and non-philosophical theories (utilitarianism versus deontology) which would validate both reasonable moral judgements as well as moral principles which underlie those judgements . The process of achieving equilibrium consists in eliminating contradictions between those judgements as well as relies on relevant philosophical and non-philosophical theories . The ultimate outcome of establishing coherence, i . e . fitting those three elements into a whole, is an equilibrium which means that they render each other reciprocal support and credibility . Thus, the process of achieving reflective equilibrium comprises three stages: a) selecting reasonable moral judgements; b) explicating those judgements by recourse to moral principles and achieving narrow reflective equilibrium; c) arriving at the broad reflective equilibrium . The process of achieving broad reflective equilibrium relies on eliminating contradictions between those judgements as well as referencing to relevant philosophical and non-philosophical theories . The core element or concept of reflective equilibrium is that our convictions become mutually supported by means of reciprocal coherence and explication .9

Ronald C . den Otter, Judicial review in an age of moral pluralism, 2009, 94–108 . Wojciech Sadurski, Rights and moral reasoning: An unstated assumption – A comment on Jeremy Waldron’s “Judges as moral reasoners”, International Journal of Constitutional Law 7 (2009), 25–28 . 9 John Rawls, Theory of Justice, 1971, 19–21 . 7 8

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2.

Moral Judgments. Psychological Perspective

Are judges equipped with any special cognitive competence for settling moral dilemmas when they formulate moral judgments? The question is whether judges employ abstract reasoning when resolving moral dilemmas, as they do when deliberating on ordinary problems, or whether they make emotional-social decisions instead . This is a particularly important question for judges, whose fundamental task is to arrive at decisions informed by norms, and from whom rational reasoning is expected, rather than quick and intuitive decision-making . Richard Posner axiomatically assumed rationality of judges, arguing in his book How Judges Think that judges are rational actors in a labor market .10 However, for over half a century, psychology has provided evidence that people’s reasoning is far from flawless, and that people’s assessments of likelihood and risk do not conform to the laws of probability–they often cannot cope with simple logical tasks, make serious errors in probabilistic reasoning, and are susceptible to numerous biases in decision-making . Yet those in the legal profession often assume that people are rational individuals who maximize expected utility, act on their preferences, calculate probabilities in accordance with Bayes’ rule, and are driven by clear objectives . In the discussion on the rationality of reasoning, the contribution of psychology is primarily concerned with the errors of judgment and biases in the process of decision-making . The most significant theoretical development in this field was Herbert Simon’s contention that the “full” rationality implied by the rational choice model was an unrealistic standard for human judgment . The knowledge gleaned from psychology can also be applied to the analysis of moral reasoning . Numerous studies in decision-making psychology show that (even when decisions do not address moral issues) our decision-making process is far from optimal and rational, that we rely on heuristics, and that we fall prey to illusions . The best example of such studies is provided by the work of David Kahneman and Amos Tversky . At the same time, since it can be seen that people’s preferences are not always stable, they can be said to violate the principles of rationality . The question that arises, however, is under what conditions does this happen? Knowledge of how people actually make decisions pertains to descriptive decision theory, which is generally accepted in contemporary psychology . Classic research by David Kahneman and Amos Tversky has shown that people are guided by heuristics when evaluating, which may indeed be useful, but at the same time these are simplistic inference methods that do not provide the assurance of certainty . In some situations, they may lead to an overestimation or underestimation of probability, and to systematic errors .11 Furthermore, the fact that people do not make full use of information, and in particular incorrectly estimate the likelihood of events, is further proof that the decision-makRichard Posner, How Judges Think, 2008, 57–78 . David Kahneman, Amos Tversky, Subjective Probability: A Judgment of Representativeness, Cognitive Psychology 3 (1972), 430–454 . 10 11

Moral Reasoning of Judges and the Rule of Law

ing process is not entirely rational and as such also applies to judges, who have a special responsibility when making decisions, and who justify their decisions on the basis of moral arguments . We should also take into account that judges make their decisions under the influence of emotions, which could affect the outcome of a large number of decisions they are confronted with in their work . Notably those decisions which made in situations involving emotion: when they experience moral conflicts, such as conflicts between sets of incommensurable values, or conflicts between personal interests and norms, when both options have important moral reasons to support them . The achievements of contemporary moral psychology inform us that when making moral judgments we also make many mistakes, not only in using heuristics, but especially when we base our judgments on intuitions . People tend to be unaware of the factors that influence their moral judgments, therefore it can be expected that judges may be similarly unaware of influences on their moral judgments–judgments that lead to formalized decisions–mistakenly believing that their ex-post explanations were in fact the cause of the decisions . Intuitions also play an important role in the moral judgments of other members of the legal profession, who are expected to base their judgments on reasoning, objective consideration of various arguments, and overcoming intuitions . As can be seen, the concepts explaining how people make moral decisions emphasize the influence of either reason or emotion . Following these considerations, recent decades have provided a substantial amount of evidence that has prompted psychologists to liberate themselves from the dominance of rationalism and to adopt the intuitionist approach . Research in this area has been additionally inspired and supported by neurobiological analyses, which have been helpful in resolving the “heart or mind” dispute (i . e . affect or cognition) . It also reanimated normative ethical debates concerning our obligations to others and ourselves . The role of emotions in making moral judgments is beyond doubt thanks to the findings of Jean Piaget and also recent research, which highlights our limited cognitive ability whilst solving moral problems .12 The only question remaining is how important a role these abilities (and especially cognition) play in the process of judges’ decision-making . Although some developmental psychologists13 claim that people can develop their moral competences through learning, and that morality could be (or even has to be) improved by psychological and educational means . For example, Lawrence Kohlberg was interested in the development of moral reasoning and suggested that reasons given to preferences in conflict situations change with age and reflect the degree of moral development . Kohlberg used Piaget’s storytelling technique and presented a short story

Jean Piaget postulated, that the two aspects, affective and cognitive, are at the same time inseparable and irreducible, see more: Jean Piaget, The affective unconscious and the cognitive unconscious, in: Piaget and his School,eds Barber Inhelder & Harold H . Chipman, 1976, 63–71 . 13 Lawrence Kohlberg, Development of moral character and moral ideology in: Review of Child Development Research eds . Martin L . Hoffman & Lois W . Hoffman, vol . I (1964), 381–431 . 12

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about a situation involving moral conflict, and a choice to be considered . Among the many experimental paradigms used in this field of research, moral dilemmas are still very popular, and researchers ask experimental participants to judge such morally dilemmatic situations . A type of research into moral judgment is concerned with responses to brief moral dilemmas that set utilitarian consequences against a moral rule . The philosophical debate over which principles our moral judgments should be based on has inspired many psychologists to conduct research on the process of moral judgment . The normative approaches of utilitarianism and deontology now form the basis for evaluating of the quality of moral judgments and decisions . Although moral dilemmas have served as a methodological pillar for moral psychology, surprisingly little research has explored how judges response to dilemmatic trade-offs . Hence the purpose of our study was concerned with making moral decisions by judges . The most commonly studied type of moral dilemmas are ‘sacrificial dilemmas’, such as the trolley problem where one decides whether to harm one or more people in order to save a larger group . Our primary aim in this research was to consider whether judges thought it permissible to harm some people to save others in several of well-known dilemmas . Two of them were basic trolley cases introduced by Judith Thomson (both involving a mere bystander who has to choose between letting five die and killing one) . Another case in which judges had to decide whether to sacrifice the life of one person in order to save lives of a greater number was the Preventing Ebola dilemma: if a Peace Corps worker kills an approaching carrier of the virus, he will be able to prevent him from spreading the virus among the remainder of the village . Another interesting issue examined here was how judges solve cases with an analogous problem when lives are not at stake, but only significant harm is caused to a top-leader of the terrorist group in the Judge Steinberg’s case . Finally, the study tested how judges decide in circumstances, which are less contrived and unrealistic and approach their everyday experiences . As regards the trolley scenarios, in the first a bystander may divert the trolley headed lethally toward five people on the track, killing the single person on the side-track . In the second case a bystander can topple a fat man from a bridge so that he lands in front of the trolley (his body thus stopping the trolley) . Philippa Foot, the philosopher who conceived the trolley problem and initiated the debate on moral justification, argued that, intuitively, it is often wrong to expend the otherwise innocent life in order to maximize lives saved . Such a deontological approach describes a set of rules or principles that serve as constraints on the kinds of actions, which are morally permissible . On the other hand, utilitarianism argues that we should always aim to maximize total well-being (whereby preference is given to sacrificing an innocent person for a greater good) . A number of psychologists have recently claimed that “optimal” moral judges are more likely to endorse utilitarian solutions, because individuals are likely to favor the utilitarian option when the deliberative mental system is recruited; people who endorse utilitarian solutions have higher working memory capacity and executive con-

Moral Reasoning of Judges and the Rule of Law

trol .14 Although, other researchers found that the rates of ‘utilitarian’ judgment were associated with a broadly immoral outlook concerning clear ethical transgressions in a business context, as well as with sub-clinical psychopathy15 . It was also observed that individuals who had higher scores on measures of psychopathy, Machiavellianism, and life meaninglessness were more likely to endorse utilitarian solutions .16 The main purpose of our study was to investigate how judges solve moral dilemmas, and whether judges, as the widespread belief would have it17, think that it is morally permissible for someone to divert a runaway trolley that would kill five people to where it will kill one different person instead, though it is not permissible to push an innocent bystander in front of the trolley, killing him, if that is the only way to save the five . 3.

Current study

3.1

Participants

A diverse sample was obtained (N=509) . The age of participants ranged from 24 to 65 years . Most participants indicated their occupation as lawyers (54 .2 %), followed by non-legal professions (45 .8 %) . Of those who declared working in legal professions 29 .6 % were judges and 62 .1 % were other lawyers: barristers, prosecutors, solicitors, and others (8 .3 % no data) . Judges’ average age was 46 years (M=45 .85, SD=8 .43), this subsample consisted of 54 .4 % females and 45 .6 % of males .

3.2

Procedure and measure

An online survey was used to collect data . Invitations to take part in the survey were posted online via professional networking sites . The invitation outlined the aims of the study and a link to the survey . The link directed participants to the consent form and Joshua Greene, Sylvia Morelli, Kelly Lowenberg, Leigh Nystrom, Jonathan Cohen, Cognitive load selectivity interferes with utilitarian moral judgment, Cognition 107 (2008),1144–1154; Daniel Bartels, David Pizarro, The mismeasure of morals: antisocial personality traits predict utilitarian responses to moral dilemmas Cognition 121 (2011), 154–161; Adam B . Moore, Brian Clark, Michael Kane, Who shalt not kill? Individual difference in working memory capacity, executive control, and moral judgment, Psychological Science 18 (2008), 549–557 . 15 Guy Kahane, Jim Everett, Brian Earp, Miguel Farias, Julian Savulescu, ‚Utilitarian’ judgments in sacrificial moral dilemmas do not reflect impartial concern for the greater good, Cognition 134 (2015), 193–209 . 16 Daniel Bartels, David Pizarro, The mismeasure of morals: antisocial personality traits predict utilitarian responses to moral dilemmas, Cognition 121 (2011), 154–161 . 17 Results of Mikhail’s research show, that when presented with Thomson’s footbridge dilemma, as many as 90 % of people reject the utilitarian response . See more: John Mikhail, Universal moral grammar: theory, evidence and the future, Trends in Cognitive Science 11 (2007),143–152 . 14

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survey; participants were assured that the data would be kept confidential . Online questionnaire software (Google Documents) was utilized to design the online survey and to collect data . Participants were confronted with six dilemmas, three portraying hypothetical scenarios requiring the participant to judge the moral acceptability of harming (fatally or not) one individual to save the lives of multiple others; in the other three cases participants were presented with highly controversial issues in which the protagonists make a decision which the participants evaluated . The participants provided answers using a 5-point scale from “it was morally wrong” (I would not do it, I do not agree with this decision) to “it was totally right” (I would do it, it is acceptable I agree with it) . We used the most widely studied type of moral quandaries known as ‘sacrificial dilemmas’, in which one decides whether to harm one or more people in order to save a larger group: trolley (bystander), footbridge, and preventing Ebola, as well as three other dilemmas from the Moral Judgment Test by Georg Lind: euthanasia (mercy killing), the workers’ dilemma (in which workers break into the office to find a proof of having their conversations listened in on), and the judge Steinberg’s dilemma (sacrificial dilemma in which judge allows tortures to save many lives) . The last four scenarios are less known; therefore, they are attached in the appendix . 3.3

Results

There were no differences in solving the trolley dilemma (a bystander case with impersonally inflicted harm) between the respondents (Fig .1) . Statistically significant differences between judges, other lawyers and non-lawyers were found in cases, which involved personal harm (the footbridge and the Ebola dilemmas) . Judges more often endorsed deontological solutions for the footbridge and the Ebola dilemma, respectively F=6 .44, p=0 .002 and F=9 .623, p< 0 .0001 . 4

Fig. 1 Mean for endorsement of ‘utilitarian’ solutions to sacrificial moral dilemmas for 2 groups of lawyers and non-lawyers.

3

trolley (bystander)

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footbridge preventing Ebola

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Frequency distribution of the responses among judges to the Preventing Ebola dilemma shows that for a majority (73 %) deliberately intending harm is wrong, even for good causes . Impersonal harm in the judge Steinberg’s dilemma evoked response similar to personal hurt (‘I hurt you’); judges did not accept being given permission by another judge . Their acceptance of impersonal hurt in the trolley dilemma was significantly higher than acceptance of impersonal harm in judge Steinberg’s dilemma (Z=3 .76, p< 0 .0001) . 61 .8 % of judges claim that judge Steinberg did wrong . It may now be interesting to see whether moral judgments of more ‘real’ events differ from those occasioned by the hypothetical stories that have been used in recent studies? In non-sacrificial dilemmas (workers’ dilemma and euthanasia/mercy killing), judges’ responses were similar to those in the trolley dilemma, as they did not involve so much emotion (Fig . 2) . Frequency distribution of responses shows that euthanasia did not mean personal harm to all judges meant, because it was requested by the subject/victim (60 % of them more or less accepted the decision made by the doctor) . The workers’ dilemma was not connected with any harm, merely involving breach of rules . In this dilemma, 61 .5 % of judges agreed with the workers’ behavior . Fig. 2 Means for endorsement of ‘utilitarian’ solutions and acceptance of protagonists’ decisions in the group of judges.

Means for judges 4

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footbridge

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4.

Conclusions

Our research does not answer conclusively whether judges are equipped with special moral competences . Still, we can shed some light on their assessment of moral dilemmas . The patterns of judges’ responses tallied with the answers returned by respondents from other groups (legal and non-legal professionals); presented with the problem, most respondents saw a moral distinction between throwing the switch and throwing the man on the tracks or shooting a person . Also, judges think that it is permissible to kill in the case of the bystander diverting the trolley, but not in a similar one, even though in both it is a question of killing one to save five . Actions that harm a person directly while serving as means to the greater good of keeping more persons alive (such as pushing the single person onto the track, shooting the carrier of a virus or even allowing tortures), are impermissible to the majority of judges . That being said, the judges’ intuitive reaction to case with bystander does not cohere with the fundamental moral principle that it is morally forbidden to take an innocent life or to harm other people . Nevertheless, judges significantly more often choose deontological solutions of dilemmas where personal/intentional harm is involved (Ebola, footbridge), regardless of whether it is done personally or by giving permission to do so (judge Steinberg) . Judith Thomson (2008) believes that many people’s judgments about the abhorrence (and hence, impermissibility) of killing varies with how “drastic an assault on the one the agent has to make .” But it is rather a problem of how the person was killed (and also how more lives were saved) . In the footbridge and preventing Ebola case personal harm is indeed involved, whereas in trolley case with bystander who can press a switch, impersonal harm is affected . Our results also suggest that there is very little relation between sacrificial judgments in the hypothetical dilemmas that dominate current research and dilemmas reflecting ‘more real’ moral conflicts (euthanasia, workers) . There are also no such a strong ground for believing that moral thought experiments, which are an inextricable component of a judge’s work when making decisions on factual disputes, are particularly privileged in relation to abstract moral reasoning based on principles or values . Seeing in this light, we suggest that more suitable and modest for the idea of the rule of law than Aharon Barak’ idea (every state action that limits rights should be justified in judicial review proceedings and judges are uniquely well positioned to conduct proportionality analysis), is David Dyzenhaus’ idea of ‘deference as respect’ . Deference as respect is evident when a court’s deliberations pay attention to the reasons provided by the legislature in favor of a certain decision, rather than another . Nevertheless, the idea of deference as respect does not imply the subordination of the judiciary to the executive or legislative branches, but rather requires that judges pay special attention to the arguments put forward by the executive or legislative authorities, or to the rationales that can be reconstructed . In all decisions, this relationship must fulfil one

Moral Reasoning of Judges and the Rule of Law

essential standard, namely the standard of reasonableness .18 But before we concern in the scrutiny of the standard of reasonableness, it is useful, as a preliminary matter, to question about what type of moral reasoning of judges is involved in the argument regarding limitations rights . 5.

Appendix

5.1

Preventing Ebola

You are a Peace Corps worker who is volunteering in a rural African village . A prominent man from a nearby village has contracted an Ebola virus that is extremely contagious, incurable, and almost always fatal within a week . Miraculously, this man has survived for a month, and so he must be a rare carrier who is immune to the virus’ deadly effects . However, this man wrongly believes that your health center can cure his disease . You see him approaching and you know that if he enters the village, he will spread the virus to hundreds of innocent people who, unlike him, will die . There is a loaded gun in the health center . You realize that the only way you can prevent him from entering the village and spreading the virus to you and the rest of the village is to shoot and kill him as he approaches . Should you kill the man in order to save yourself and the rest of the village?

5.2

Workers’ dilemma

Due to some seemingly unfounded dismissals, some factory workers suspect the managers of eavesdropping on their employees through an intercom and using this information against them . The managers officially and emphatically deny this accusation . The union declares that it will only take steps against the company when proof has been found that confirms these suspicions . Two workers then break into the administrative offices and take tape transcripts that prove the allegation of eavesdropping . Would you disagree or agree with the workers’ behavior?

David Dyzenhaus, Dignity in administrative law: judicial deference in a culture of justification, Review of Constitutional Studies 1 (2012),135–136 . 18

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5.3

Euthanasia

A woman had cancer and she had no hope of being saved . She was in terrible pain and so weakened that a large dose of a painkiller such as morphine would have caused her death . During a temporary period of improvement, she begged the doctor to give her enough morphine to kill her . She said she could no longer endure the pain and would be dead in a few weeks anyway . The doctor complied with her wish . Do you disagree or agree with the doctor’s behavior?

5.4

Judge Steinberg

The secret service of a country in Europe has evidence that a terrorist group is planning a bomb attack on a much-used bus for the next day . They intend to kill two hundred people . The group is known for its cruelty and uncompromising policy . The secret service gets hold of a woman who is considered to be one of the top-leaders of the terrorist group . There is evidence that the woman participated in the planning of that attack . The police believe they could prevent the attack if they could make the woman speak . They interview the woman for quite some time . However, the woman totally refuses to cooperate . The secret service fears that the woman would not speak before it was too late to prevent the attack . Therefore, they ask the investigating judge to allow the torture to make the woman speak about the plans of her group . In this country, torture is not allowed by law . In spite of this, the judge gives permission to torture in order to prevent the bomb attack and to save the lives of many people . What do you think of judge’s behavior?

Teresa Chirkowska-Smolak is professor at Adam Mickiewicz University in Poznań, Institute of Psychology, ul . Szamarzewskiego 81, 60–568 Poznan, Poland e-mail: chirko@amu .edu .pl Marek Adam Smolak is professor at Adam Mickiewicz University in Poznań, Faculty of Law and Administration, ul . Sw . Marcin 90, 61–809 Poznan, Poland e-mail: smolak@amu .edu .pl

Legal Positivism and the Point of Theoretical Value-Neutrality MITSUKI HIRAI

Abstract

According to H . L . A . Hart, one of the points of legal positivism’s doctrine of “the separation of law and morals” is to eschew two kinds of arbitrary judgment, namely, the judgment of anarchists and the judgment of reactionaries . For this purpose, we should accept not only “substantive positivism”–that is, the first-order theoretical position that requires law and morality to be separated–but also “methodological positivism”–that is, the second-order position that requires legal theory and moral evaluation to be separated . I will show briefly why this is the case, and then proceed to examine whether the Dworkinian conception of law can be a promising alternative to the project, based on the hypothesis that the positivistic project has failed, as Dworkin insists . H . L . A . Hart / Jeremy Bentham / Ronald Dworkin / legal positivism / interpretivism / meta-legal theory Keywords:

1.

Introduction

What is the point of legal positivism? Are various attacks on legal positivism raised by Ronald Dworkin and other critics valid? Many legal theorists have struggled to answer these questions for a long time . However, when we face these kinds of questions, do not we unconsciously assume that legal positivism is a “substantive” theoretical positions concerning law or legal system itself? My suggestion is that, to answer these questions sufficiently, we have to clearly understand and utilize a distinction between a substantive positivistic position –that is, the first-order theoretical position that requires law and morality to be separated–and a “methodological” one–that is, the second-order position that requires legal theory and moral evaluation to be separated . In this paper, I postulate, following H . L . A . Hart, that one of the point of legal positivism is to eschew two kinds of arbitrary judgment, namely, the judgment of anarchists and

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the judgment of reactionaries which I will explain in the following section, and will show that, to fulfill the goal, we have to accept legal positivism at both substantive and methodological levels, otherwise we would be trapped into a fatal theoretical contradiction . However, according to the well-known criticism raised by Dworkin, at least methodological positivism unavoidably fails . If methodological positivism has to be possible to eschew the two arbitrary judgments but necessarily fails at the same time, it seems to follow that eschewing the two arbitrary judgments also necessarily fails, and also follow that at least one of the purpose of legal positivism postulated above is pointless . At this point, we are standing in the middle of a trilemma situation . In section 3 .2 and 3 .3, I examine two possible ways out of the trilemma . One of the way out strategies is to refute Dworkin’s criticism of methodological positivism, and the other is to show that accepting Dworkin’s criticism of methodological positivism does not necessarily follow the impossibility of eschewing the two arbitrary judgments . I will suggest as my tentative conclusion that each strategy has its own unsolved difficulty and does not seem to be promising at least for now . 2.

Why Does the Legal Positivists’ Project Need a Value-Neutral Description of Law?

2.1

Substantive and Methodological Positivism

To prepare for the following discussion, let us begin by clarifying the distinction between substantive and methodological legal positivism introduced by Stephen Perry .1 According to Perry, substantive positivism, as briefly noted above, holds that there is no necessary connection between law and morality, and methodological positivism holds that there is no necessary connection between legal theory and morality; that is, a legal theory can provide a value-neutral description of a particular social phenomenon called “law .” The former can be regarded as a first-order theory concerning law, whereas the latter can be regarded as a second-order meta-theory concerning legal theory . Strictly speaking, each theory has descriptive and normative versions . The descriptive version of substantive positivism maintains that it is the case that law and morality are separated or at least separable, whereas the normative version maintains that law and morality ought to be separated . This distinction on a substantive level corresponds to the well-known distinction between analytical and normative legal positivism . Likewise, methodological positivism seems to be divided into descriptive and normative versions in a similar way . That is, the descriptive version of methodological positivism maintains that it is necessary, or at least possible, for a legal theory to be constructed

1

Stephen R . Perry, Hart’s Methodological Positivism, in: Hart’s Postscript, ed . Jules Coleman, 2001, 311–354

Legal Positivism and the Point of Theoretical Value-Neutrality

without moral evaluation, whereas the normative version maintains that a legal theory ought to be constructed without moral evaluation . Apparently, the normative versions presuppose the truth of the descriptive versions . If descriptive substantive positivism is false, then law and morality cannot be separable and therefore, normative substantive positivism’s requirement cannot be satisfied in principle . In the same way, the falsity of descriptive methodological positivism entails the impossibility of normative methodological positivism . As Perry points out, substantive and methodological positivism are not necessarily connected to each other .2 Accepting substantive positivism does not logically force one to accept methodological positivism, and vice versa . For example, if a natural law theorist defends his/her theory in a morally value-neutral manner, then he/she is substantively a legal non-positivist, but methodologically a legal positivist .3 Conversely, it is possible to defend a substantive positivism position in a methodologically non-positivistic, morally value-laden manner . 2.2

Methodological Positivism vs Non-Positivism

Like the first-order substantive positivism, the possibility of the second-order methodological positivism is a controversial issue . For example, Ronald Dworkin’s well-known criticism of legal positivism over the decades occurs not only on the substantive level but also on the methodological level . According to Dworkin, contrary to what is maintained by some analytical positivists, if a legal theorist is to construct a legal theory, he/ she cannot describe the law in a value-neutral manner, but must engage in so-called “constructive interpretation” to identify the moral function of the law and, in the process, he/she cannot but evaluate the moral merit and demerit of the law .4 Similarly, Jeremy Waldron points out that when a dispute erupts about whether an ought-proposition P can be regarded as a legally valid proposition, or whether a normative system S can be regarded as a legal system, mere morally neutral conceptual analysis citing “common usage” of the word “law” among lawyers and judges cannot settle the dispute effectively .5 Why is this the case? Stephen Perry argues that “the data can plausibly be conceptualized in more than one way, and choosing among conceptualizations seems to require the attribution to law of a point or function,” and to attribute a function to the law, according to the methodological non-positivist camp, we have to assume the

2 3 4 5

Ibid . 312 According to Perry, Michael S . Moore belongs to this type of natural law theorists . Ibid . 31 Julie Dickson, Evaluation and Legal Theory, 2001, 7 Jeremy Waldron, Normative (or Ethical) Positivism, in: ed . Coleman, (footnote 1), 410–433

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function of law is a moral one and therefore, we have to make a moral evaluation considering the function .6 As stated above, the issue is itself a subject of controversy and complex dispute . However, for the purpose of this paper, I will not go into any detail, and will proceed to the discussion of why legal positivists, or at least certain kinds of legal positivists, have to take a methodologically positivistic stance as well as a substantively positivistic stance . 2.3

Eschewing Two Kinds of Arbitrary Judgments

It is difficult to identify a single point of legal positivism but, according to Hart,7 one of the most important reasons why classical legal positivists such as Jeremy Bentham and John Austin insisted on the fundamental doctrine of legal positivism–“the separation of law and morals” and the careful distinction between “law as it is” and “law as it ought to be”–is that, if the distinction were obscured, we would easily be trapped into a harmful confusion . According to Bentham, this confusion spreads “symmetrically in two different directions”:8 on the one hand, an anarchical claim such as “this ought not to be the law, therefore it is not and I am free not merely to censure but to disregard it” and, on the other hand, a reactionary claim such as “this is the law, therefore it is what it ought to be .” The danger of the former, which can be called an “anarchical judgment,” is that if this kind of judgment becomes widespread, then law and its authority might be dissolved in each person’s own conceptions of what law ought to be, and whether an action is obligatory or not, permitted or not, forbidden or not, would exclusively depend on one’s personal conception of morality or justice . As can easily be imagined, in this kind of situation, the law could not settle any dispute and, in the worst case, society might corrupt into the Hobbesian state of nature . On the other hand, the danger of the latter, which can be called a “reactionary judgment,” is that this kind of judgment means that the law takes the place of morality as a final test of conduct and escapes any criticism from the moral point of view . In short, to eschew the harm of those two kinds of arbitrary judgments, we have to keep the following two points in mind: “first, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow

Stephen R . Perry, Interpretation and Methodology in Legal Theory, in: Law and Interpretation, ed . Andrei Marmor, 1995, 123 7 H . L . A . Hart, Essays in Jurisprudence and Philosophy, 1983, 50–56 8 Ibid . 53 6

Legal Positivism and the Point of Theoretical Value-Neutrality

from the mere fact that a rule was morally desirable that it was a rule of law .”9 (According to Bentham’s analysis, the natural law theories in his time potentially had both dangers of arbitrary judgment .) Now, we can see the theoretical motivation for why classical legal positivism took the stance of substantive positivism rather than a natural law theory . The reason why substantive positivism is more desirable is that taking this position enables us to recognize clearly the distinction between law and morals, or “law as it is” and “law as ought to be,” and to eschew the harm of the two arbitrary judgments described in the last section . For a legal interpreter to avoid the two arbitrary judgments, it must not be the case that the law, the standard of legal interpretation, depends on any moral consideration, because of the reasons presented above . Then, the following questions arise . Do those arguments give us any ground for accepting methodological positivism? Do we also have to accept methodological positivism to avoid the two arbitrary judgments? If we take a stance of methodological positivism, the theoretical motivation mentioned above is not available for direct justification of substantive positivism, because the theoretical motivation itself is based on a moral practical consideration . If a legal theorist claims that taking a stance of a substantive legal positivism is desirable, because it enables us to eschew the morally harmful effect of the anarchical and reactionary judgments, he/she takes a kind of methodological non-positivistic stance because he/she defends a substantive legal theory by way of moral justification . At first glance, it seems possible to accept this way of theorizing . However, in my view, it is an inconsistent and self-contradictory position . I will briefly show the reason why this is so in the next section . 2.4

Why Methodological Positivism?

First, let us consider the situation in which an agent J makes a legal judgment about the following question: “legally speaking, is it forbidden for X to ϕ in circumstances A?” Additionally, let us assume that in the legal system L that is referred to by J, a seemingly relevant rule R “S is forbidden to ψ in circumstances C” is valid . Under this situation, J is to judge whether it is the case that “X ϕs in A” is equivalent to “S ψs in C” in the relevant sense . According to what a (normative) substantive positivism requires, such a judgment has to be possible to be made without any moral consideration . For example, if the relevant rule R includes some words/concepts requiring moral consideration such as “morally wrong,” then J has to judge whether “X’s ϕing in A” is morally wrong or not . This kind of judgment is undesirable because of the danger of the two arbitrary judg-

9

Ibid . 55

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ments . Thus, such a factor requiring moral consideration has to be excluded from the relevant rule . So far so good . A more problematic case is that the seemingly relevant rule does not include any factor requiring moral consideration . Let us consider the situation that the only relevant rule is the rule R1 that consists of entirely morally neutral words: “S is forbidden to enter into area D .” Additionally, let us assume that identification of D is also possible in the formal, morally neutral way and there is no exceptional rule overriding R1 . In this situation, it seems that J can judge whether “X’s ϕing in A” is forbidden by R1 in an entirely morally neutral manner . However, is this really the case? The vitally important point is: how does J judge whether the rule R1 is valid in the legal system L? If Hart was in the position of J, he would judge whether R1 is a valid rule belonging to L depending on his own general model of law, that is, “law as the union of primary and secondary rules,” assuming the existence of the so-called “rule of recognition” (hereafter RR) . However, is it permissible for him to use his own RR model for the judgment above, even if the model’s justificatory ground was a moral one? In this case, Hart judges whether R1 is valid in L referring to RR but, by hypothesis, his assumption of RR depends on a certain moral justification, so the judgment of the validity of R1 also depends, although indirectly, on the moral justification . It seems to contradict the theoretical motivation for legal positivism mentioned above, that is, eschewing the two arbitrary judgments . Consequently, if you turn to substantive positivism to avoid the harm of the two arbitrary judgments, you also have to accept methodological positivism . More precisely, it seems that arbitrary judgments can occur in other stages than the two presented above . Thus, to avoid the two arbitrary judgments, at least10 any moral considerations have to be excluded from the judgments raised below . A1 the judgment about whether the RR model is true A2 the judgment (assuming there is no controversy about the truth of the RR model) about what is the content of the law identifying standard RR A3 the judgment (assuming there is no controversy about the truth of the RR model and the content of RR1) about what laws can be deducted from RR A4 thejudgment (assuming there is no controversy about A1–A3) about what is the adjudicative conclusion of the case C applying the relevant laws deducted from RR

As I mention later, non-moral judgments can be also controversial as well as moral ones and have the potential to be a source of the two arbitrary judgments . 10

Legal Positivism and the Point of Theoretical Value-Neutrality

3.

What Is the Problem That Has to Be Solved?

3.1

A Trilemma

If methodological non-positivism was descriptively true, as Dworkin claims, then it would be impossible to construct any theory depending on the truth of methodological positivism . In addition, if constructing legal theory depending on the truth of methodological positivism was impossible, then the theoretical motivation of Hartian/Benthamite legal positivism explained above would be pointless and the harm of the two arbitrary judgments would be inevitable . However, this inevitability, if true, seems to be quite problematic not only for certain kinds of legal positivists, but also for any kinds of legal theorists, practitioners, or ordinary citizens . As already noted above, moral judgments have to be excluded from each of the A1–A4 stages to eschew the two arbitrary judgments . The theory requiring this multiple tier exclusion can be called “four-tier legal positivism” and, at this point, we seem to be in a kind of trilemma situation . The trilemma consists of the following three propositions . B1 The two arbitrary judgments have to be eschewed . B2 If the two arbitrary judgments have to be eschewed, then it has to be the case that four-tier legal positivism is possible . B3 According to a certain kind of non-positivist camp, because methodological positivism at least is impossible, four-tier legal positivism is also impossible . These propositions cannot stand simultaneously, so at least one of them may have to be abandoned or modified . In the following sections, I examine, although in an incomplete and brief way, possible ways out of this trilemma . 3.2

Is Methodological Positivism Possible?

First, let us examine whether B3 can be abandoned or at least modified . To defend methodological positivism, we might take a stance that accepts the inescapability of the value-ladenness of legal theory and conceptualization of law but denies that the value-ladenness is necessarily a moral one . Theories taking this kind of direction are what Julie Dickson once attributed to theorists such as Joseph Raz and called “indirectly evaluative legal theory .”11 Indirectly evaluative legal theorists insist that whenever we construct any legal theory, it is necessary to identify certain important features of law, such as the important function of law, by means of certain evaluative judgments,

11

Dickson, (footnote 4), 51–57, 120

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but these are non-moral, purely theoretical, or conceptual ones .12 Taking this theoretical direction, we could evade the criticism that asserts the inescapability of evaluation and impossibility of value-neutral theory construction, and still maintain the moral value-neutrality methodologically . However, this direction might be insufficient to solve the problem of the two arbitrary judgments . Taking relatively uncontroversial features, such as the “action-guidance function,” as one of “the important features of law” is not that problematic . However, if I took controversial ones, such as Hart’s “union of primary and secondary rules” or Raz’s “authority claim” as examples of “the important features of law” and excluded “primitive” societies’ social rules–for example, prevailing social rules in the (past) Trobriand Islands–from the extension of the concept of law, my theoretical opponents would not be convinced . Those who do not accept the Hartian or Razian conception of law, and who consider that the rules excluded from the extension of law still deserve to be “dignified” as law, would insist that those rules are unjustly deprived of the dignified status of law in the name of conceptual truth .13 The point is whether it is possible for two theorists to argue about the object, law, properly and not talk past each other when one appeals to non-moral evaluative argumentation and the other appeals to moral evaluative argumentation . As stated above, the latter will never be convinced by the former’s argument . Some may point out that the latter’s criticism of the former appeals to the so-called “persuasive definition” strategy, which associates a descriptive concept like “law” with an evaluative concept like “dignification,” and this kind of strategy inescapably invites talking-past, so the criticism is a futile one . If this argument is valid, we have to avoid the problem arising from persuasive definitions and, for this purpose, we can limit the scope of our analysis to the concept of law within “our concept of law,”14 or abandon the project of “general jurisprudence” and engage alternatively in the project of “special jurisprudence,” which confines itself to inquiring exclusively into a specific, actually existing social institution .15 If we choose the former route, we may be able to explain that “Trobriand Islands’ society doesn’t have any law” only means that “Trobriand Islands’ social rules do not fall into the extension of our concept of law” but does not mean that they cannot be counted as law in any possible way . If we choose the latter route, the Trobriand Islands’ social rules are excluded from the scope of our jurisprudential inquiry from the beginning . By means of these strategies, our jurisprudential

Ibid . 120 Just as Hart once wrote “[Y]et the issue is ill presented as a verbal one . Neither side to the dispute would be content if they were told, “Yes: you are right, the correct way in English (or in German) of putting that sort of point is to say what you have said” […] [p]lainly we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage .’ (H . L . A . Hart, The Concept of Law 2nd edn . 1994, 209), even though Hart himself seems to have been trapped into this pitfall . 14 For example, Raz seems to adopt this kind of theoretical strategy . Joseph Raz, Between Authority and Interpretation, 2009, 31 15 For example, Dworkin’s interpretive jurisprudence seems to adopt this strategy . 12 13

Legal Positivism and the Point of Theoretical Value-Neutrality

project and conceptualization of law turn into picking out the important features of law in terms of our conception of law, or picking out important features of a specific social institution . Is this enough to solve the problem? Let us recall why methodological positivism needs to be adopted by Hartian/Benthamite legal positivists . As already argued, they have to defend their theory in a morally value-neutral way because they have to be consistent with their theoretical motivation to avoid two kinds of arbitrary judgments, namely, an anarchical judgment and a reactionary judgment . Certainly, indirect evaluative legal theory’s strategy succeeds in eschewing the arbitrariness occurring alongside morally evaluative judgments . However, non-moral evaluative judgments are no less evaluative than moral ones, and it seems to me that they have the same kind of arbitrariness . As stated above, the problem of the two kinds of arbitrary judgment emerges from the state of affairs in which everyone judges what is law depending on each one’s conception of morality, but if we replace “each one’s conception of morality” with “each one’s conception of the important features of law”, arbitrariness seems to remain . The arbitrariness of the reactionary judgments may be eschewed by the strategy because the reactionary judgments, which insist that legal judgments are always justified by morality, are grounded only on moral evaluation . However, the anarchical judgments cannot be eschewed no matter whether a moral or non-moral evaluation is adopted by legal theorists . If we reject B3 and sustain B1 and B2 by way of this strategy, a new criticism occurs, insisting that it is pointless to adhere to methodological positivism if we cannot escape from the arbitrariness of private judgments anyway . Although we might be able to respond to this criticism by distinguishing moral and non-moral evaluation by their qualitative differences, we would then have to identify the difference in some way or another . Moreover, even if we managed to defend methodological positivism, it would mean that we succeeded in eliminating arbitrariness only on the methodological level, and the problem of arbitrariness on the substantive level would remain . 3.3

Dworkinian Strategy

Let us proceed to examine the plausibility of B1 and B2 . First, I examine B2 (assuming the truth of B1) with the help of one of the most influential non-positivist theorists, Ronald Dworkin, and his interpretivist conception of law . Dworkin rejects not only methodological positivism but also substantive positivism, by way of denying the existence of law-identifying standards shared by legal officials based on his theoretical disagreement argument .16 Thus, according to Dworkin, in each of the A1–A4 stages, the separation of law and morals seems to be rejected by the rejection of substantive

16

Ronald Dworkin, Law’s Empire, 1986, Chapters 1–3

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and methodological positivism . If B2 and Dworkin’s theory were both correct, then there would be no way to eschew the two kinds of arbitrary judgments . How should we manage this situation? Obviously, there are (at least) two possible answers . One is to accept Dworkin’s theory and reject B2, and the other is to reject Dworkin’s theory and accept B2 . In this section, I examine the former strategy . Accepting Dworkin’s theory and rejecting B2, with the assumption that B1 is true, means that we have to show that we can eschew the problem of the two kinds of arbitrary judgments through the Dworkinian conception of law . But how can this be achieved when the Dworkinian conception of law seems to allow officials to judge what is law depending on their personal conception of law and morality? One possible answer is, complete achievement of B1 needs B2 to be true, but the Dworkinian conception of law also can fulfill the requirement of B1 sufficiently . The threshold for sufficiency seems to depend on the point of B1 . What was the point of B1 by the way? Why do we have to eliminate the two kinds of arbitrary judgment from legal contexts? As already suggested, there seem to be two substantial reasons why . One of them is a Hobbesian theme that to avoid deep value conflicts among people and destructive consequences caused by conflicts, the elimination of private judgments is necessary . The other is a Benthamite theme that to prevent officials from abusing law for their personal interest, legal truths have to depend exclusively on non-arbitrary, objective facts that are identifiable independently from people’s personal conceptions of morality .17 Now, let us examine whether the Dworkinian conception of law can answer these two requirements . It should be noted that Dworkin’s theory is a kind of special jurisprudence that confines its scope to contemporary American legal practices, especially those in the processes of adjudication,18 which means that his theory is only applied to already “flourishing legal systems .”19 Accordingly, Dworkin’s theory may have a good answer to the Benthamite requirement, but it cannot have an answer to the Hobbesian requirement by its theoretical assumption . Then, can the Dworkinian conception of law provide at least sufficient remedy to the Benthamite requirement instead of four-tier legal positivism? My tentative answer is half-positive . Certainly, legal interpretations of the Dworkinian conception of law can escape from complete arbitrariness to some extent because of the limitation of so-called “dimension of fit” (and maybe because of the right-answer thesis), which distinguishes between an interpretation and creation of a new law . However, it is not descriptive truth but includes normative requirements to interpreters, especially officials, who are typically judges .20 So, to fulfill the Benthamite requirement at least sufficiently, it is necessary that officials are actually motivated to judge in a normatively proper way . 17 18 19 20

Philip Schofield, Bentham: A Guide for the Perplexed, 2009, Chapter 5 Wil Waluchow, Inclusive Legal Positivism, 1994, 32 Dworkin, (footnote 16), 110 These requirements assume a normatively idealized model of a judge, named Hercules .

Legal Positivism and the Point of Theoretical Value-Neutrality

Two problems seem to remain . One is how to actually motivate officials in a normatively proper way . The other is to identify the “normatively proper way” of interpretation . If these problems are left unsolved, the Dworkinian position also fails to answer sufficiently the Benthamite problem, let alone the Hobbesian problem, regardless of whether Dworkin’s criticism of legal positivism is correct or not . Mitsuki Hirai 3-34-1 Nishi-Ikebukuro, Toshima-ku, Tokyo 171–8501, Japan, mtkhirai726@gmail .com

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Robert Alexy, Frederick Schauer, and the “Positivist” Theses ALESSIO SARDO* 1

Abstract

Schauer is a torchbearer of the positivist view which, to put it very roughly, corresponds to the broad idea that law and morals are not necessarily connected . Alexy, instead, is the leading legal philosopher within the non-positivist tradition, characterized by a commitment to the necessary connection between law and morals . In the present essay, I will show how Alexy and Schauer use their respective conceptions of law also as a justification of specific methods for legal adjudication . My claim is that both Alexy and Schauer elaborate important restatements of two different tests for judicial review: an updated version of the over-/under inclusiveness test, designed by Frederick Schauer; an analytic refinement of the proportionality test, elaborated by Robert Alexy . Keywords: legal positivism – Alexy – Schauer – proportionality – under-/over- inclusive-

ness – inclusive non-positivism . 1.

Introduction

Robert Alexy and Frederick Schauer are, today, the prominent figures of the international debate over legal positivism . Schauer is a torchbearer of the positivistic view which, to put it very roughly, corresponds to the broad idea that law and morals are not necessarily connected . Alexy, instead, is the leading legal philosopher within the inclusive non-positivist tradition, which is characterized by a commitment to the necessary connection between law and morals; this worthy tradition begins with the ground-breaking works of Gustav Radbruch and Lon L . Fuller .

Alessio Sardo is Alexander von Humboldt Research Fellow at Heidelberg University and Teaching Fellow at Bocconi University . (Milan) . Email: alessio .sardo@unibocconi .it . *

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In the present essay, I will show how both Alexy and Schauer use their respective conceptions of law as a justification of peculiar methods for legal adjudication . More specifically, my claim is that these authors not only provide two of the most insightful accounts of the concept of law, with an eye to the relation between law and morals, for they also elaborate important restatements of two different tests for judicial review: an updated version of the over-/under inclusiveness test, designed by Frederick Schauer; an analytic refinement of the proportionality test, elaborated by Robert Alexy . In section § 2, I briefly explain the main traits of the theoretical model proposed by Alexy, which is based on the idea that law has a dual nature . I turn, in section § 3, to Schauer’s norm theory, which, by contrast, is based on the notion of underlying reasons . Then, in section § 4, I adduce arguments to show how both Alexy and Schauer rely on their respective theoretical models to defend peculiar tests for judicial review; in section § 4, I also suggest that, whereas the under-/over- inclusiveness test is specific of the American legal culture, the proportionality test stepped into the limelight in Germany, during the Weimar period . Finally, I draw three short concluding remarks (§ 5) . 2.

Robert Alexy, the Dual Nature of Law, and the Weight Formula

Robert Alexy defends the necessary connection between law and morals . Law is a special case of the practical discourse (Sonderfallthese), and every legal norm necessarily raises a claim to correctness (Anspruch auf Richtigkeit) . Legal principles are optimization requirements that, by definition, are applied through balancing (Abwägung) . In order to be rational, balancing shall be connected to the proportionality principle and to the weight formula (Gewichtsformel) The claim to correctness is the “Archimedean point” of Robert Alexy’s defence of inclusive non-positivism (Nichtpositivismus), namely, the thesis that there is a connection between law and ideal morality .1 Law has a dual nature: on the one hand, law has a factual dimension, which can be defined in terms of authoritative issuance (autoritative Gesetzheit), correct enactment (ordnungsgemäße Gesetztheit), and social efficacy (soziale Wirksamkeit); on the other, law has an ideal dimension, which corresponds to justice .2 The claim to correctness constitutes the starting point of the so-called “argument from inclusion”,3 which postulates the necessity of including moral, that is, non-authoritative elements both in the concept of legal validity and in the very conRobert Alexy, The Argument from Iegal nature See, for instance, njustice, Oxford, 2002, 23 ff . (Af I); Robert Alexy, The Dual Nature of Law, Ratio Juris 23 (2010), 167–82; Robert Alexy, Constitutional Rights and Proportionality, Revus 22 (2014), 1–12 . For an extended analysis of legal positivism, see at least Stanley L . Paulson, The Very Idea of Legal Positivism, Revista Brasileira de Estudio Politicos 102 (2011), 139–165 . 2 Ralf Dreier, Der Begriff des Rechts, Neue Juristische Wochenschrift 39 (1986) 890–896, 894 f .; Ralf Dreier, Neues Naturrecht oder Rechtspositivismus?, Rechtstheorie 18 (1987), 368–385, 376 3 Peng Hsiang Wang, On Alexy’s Argument from Inclusion, Ratio Juris 29 (2016), 288–305 1

Robert Alexy, Frederick Schauer, and the “Positivist” Theses

cept of law . The broad idea expressed by the argument from correctness is that ‘participants in a legal system necessarily, on all sorts of levels, lay claim to correctness’,4 where ‘participant’ is somebody who seeks the correct legal answer with respect to a given normative system .5 Obviously, Alexy recognizes that the necessity of including moral elements into the very concept of law is a highly contested assumption .6 However, according to Alexy, the claim to correctness opens the way to the necessary inclusion of a moral element into the concept of law, for two main reasons . First, if a participant raises a claim to correctness, she must also provide a justification for that .7 Second, anybody who seeks ultimate, rational foundations for any practical consideration whatsoever must adduce a moral principle in the justificatory process . In other words, when a participant P in a legal system S claims correctness, she must, at a certain point, appeal to (correct) moral reasons if she really wishes to justify her legal decision 8 The argument from inclusion postulates the existence of a necessary classifying connection between law and (ideal) morality, which comes under the scrutiny of the well-known ‘test’ established by Radbruch’s Formula: any norm that is intolerably or extremely unjust cannot be considered as ‘legal’ (extremes Unrecht ist kein Recht), even if the formal criteria of validity are entirely satisfied . 9 If we want to seek justice, moral elements are necessarily included in the concept of law, alongside social and factual elements .10 Therefore, the claim to correctness acquires a hypothetical structure . Alexy introduces two fundamental distinctions . The first one is the distinction between the abstract dimension of the concept of law – namely, the conjunction of the values of justice and legal certainty – and the concrete dimension of the concept of law – which basically corresponds to the level of application . The second distinction is that between qualifying connections, and classifying connections: ‘A classifying connection is reflected in the claim that norms and systems of norms that do not meet a certain moral criterion are, for either conceptual or normative reasons, not legal norms or legal systems . A qualifying connection is reflected in the claim that norms

Robert Alexy, Af I (footnote 1), 35–6 Robert Alexy, An Answer to Joseph Raz, in: Law, Rights and Discourse Themes from the Legal Philosophy of Robert Alexy, ed . George Pavlakos, Oxford, 2007, 37–55, 45 ff . 6 Eugenio Bulygin, Alexy between Positivism and Non-positivism, in: Neutrality and Theory of Law, eds . Jordi Ferrer Beltrán/José Juan Moreso/Diego Papayannis, Dordrecht, 2013, 49–59 7 Robert Alexy, Af I (footnote 1), 78 8 Robert Alexy, Af I (footnote 1), 21 9 Gustav Radbruch, Legal Philosophy (1st pub . 1932), in: The Legal Philosophy of Lask, Radbruch, and Dabin, ed . Edward W . Patterson, Cambridge (MA), 1950, 43–224 . Stanley L . Paulson, Lon L . Fuller, Gustav Radbruch, and the “positivist” Theses, Law and Philosophy 13 (1994), 313–359 . The title of the essay is inspired by Paulson’s insightful article . See also the excellent Hidehiko Adachi, Die Radbruchsche Formel: Eine Untersuchung der Rechtsphilosophie Gustav Radbruchs, Baden-Baden, 2006 . 10 Robert Alexy, Af I (footnote 1), 21 . For a discussion on this topic, see Eugenio Bulygin, Alexy’s Thesis of the Necessary Connection between Law and Morality, Ratio Juris 13 (2000), 133–137; Peng Hsiang Wang (footnote 3) . 4 5

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or system of norms that do not meet a certain moral criterion can indeed be legal norms or legal systems, but, for either conceptual or normative reasons, are legally defective legal norms or legal systems .’11

At the systematic level, the claim to correctness: ‘restricts the positivistic separation thesis a good bit even in the observer’s perspective . In this perspective, the separation thesis does in fact count as unrestricted where legal norms are concerned, but with legal systems, the separation thesis – albeit only in extreme and indeed improbable cases – reaches a limit defined by the claim to correctness .’12

Now, the question is how how does Alexy demonstrate that the law necessarily raises an implicit or explicit claim to (moral) correctness? His demonstration relies on a mental experiment . Alexy asks us to imagine a group of ‘armed desperados’ browbeating a large number of people with contradictory commands . The group of armed desperados does not prevent the dominated people from exercising violence or oppression; what is more, it is completely impossible to discover a general end or aim in the set of issued commands . Alexy considers that such a ‘senseless’ set of commands should not be considered as law . Alexy asks us to imagine that this group of desperados eventually becomes a gang, whose only aim is the regular killing of the dominated people, in order to sell their organs . According to Alexy, for conceptual reasons, a system of this kind should also not be classified as ‘legal’ .13 Finally, he asks us to imagine a normative system that is analogous to the one that we have just outlined, but that is characterized by an additional feature: the system claims that this reprehensible conduct is to be understood as correct, because it is suitable for the achievement of a further and higher end – say, the flourishing of human beings . Now, in this third scenario, the number of killings and organ thefts perpetrated by the gang could even remain unchanged . However, these acts should be done in compliance with established forms and using established methods, and they should also be publicly justified, by making reference to a higher purpose of the system . According to the Alexy, in this case it is possible to maintain that what we have in front of us is a legal system, in spite of the fact that it is deeply unjust . When a system of norms claims correctness without satisfying this claim, a ‘defective’ legal system is produced .14 Legal norms ‘are legally defective if they do not make the claim to correctness or if they fail to satisfy it’ .15 To prove the validity of these theses, Alexy relies on a second

11 12 13 14 15

Robert Alexy, Af I (footnote 1), 26 Robert Alexy, Af I (footnote 1), 35 Robert Alexy, Af I (footnote 1), 32–3 Robert Alexy, Af I (footnote 1), 36 Robert Alexy, Af I (footnote 1), 63

Robert Alexy, Frederick Schauer, and the “Positivist” Theses

mental experiment .16 We should imagine the constitution of a purely hypothetical state X which contains the following normative statement: X is a sovereign, federal and unjust republic .

The kind of defect that we are facing is conceptual, for it stems from a violation of ‘rules that are constitutive for speech acts, that is, linguistic expressions qua actions’; this violation produces an absurdity .17 In Alexy’s philosophical system, the argument from correctness prepares the ground for two more arguments in favour of the inclusion thesis: the argument from injustice and the argument from principles . The argument from injustice corresponds to Radbruch’s idea that, if legal norms and legal systems cross a certain threshold of injustice, they lose their legal character,18 whereas the argument from principles can be captured by the idea that, in all doubtful cases, the judge does not decide on the basis of extra-legal standards, because she is ‘legally bound’ by principles qua optimization requirements (Optimierungsgebote) . Principles have a double nature: legal and moral .19 Both the argument from injustice and the argument from principles represent important safeguards for the necessary inclusion of moral elements in the concept of law: these two arguments are aimed at establishing the necessary connection between law and morality . However, in the context of the present analysis, the argument from principles acquires a fundamental importance, for it is precisely at this juncture that Robert Alexy’s theory switches from a purely conceptual analysis to a full-fledged proposal of a peculiar method for legal adjudication . Legal principles, so the argument goes, are optimization requirements, norms that require the maximization of certain goals (health, dignity, social welfare, competition, efficiency); these goals shall be realized to the greatest extent as possible, taking into account both factual and legal constraints . Principles qua optimization requirements have three main features: first, they can be satisfied to a varying degrees; second, the peculiar category of principles (Prinzipien) – which Alexy contrasts with ‘rules’ (Regeln), understood as definitive commands (definitive Gebote) – imposes only prima facie requirements; third, all sorts of normative conflicts between legal principles might arise with respect to individual cases . In order to solve these conflicts, a judge shall set down a cardinal ranking between the competing principles, to wit: principle P1 prevails upon principle P2 under the condition C . Now, judicial balancing consists precisely in determining the appropriate degree of satisfaction of a principle vis-a-vis the other principles of the system:20 Robert Alexy

16 17 18 19 20

Robert Alexy, Af I (footnote 1), 35 ff . Robert Alexy, Af I (footnote 1), 37 Robert Alexy, Af I (footnote 1), 40 ff . Robert Alexy, Af I (footnote 1), 68 ff . Robert Alexy, A Theory of Constitutional Rights (TCR), Oxford, 2002, Postscript

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stresses that judicial balancing is required by the very definition of ‘legal principle’, for these two notions are connected by a relation of mutual implication; in other words, balancing is the only possible form for the application of legal principles .21 The cardinal ranking between competing principles produces a conditional norm whose antecedent is constituted by the conditions of precedence according to the Law of Balancing, which reads: ‘[t]he greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other .’22 Under Alexy’s view, the most rational method for performing a balancing operation is the so-called proportionality judgment . The analytic model of proportionality proposed by Alexy takes the form of a three-pronged test: the first step is aimed at ascertaining the suitability (Geeignetheit) of the normative measure, understood as a congruent means/end relation; the second step checks the necessity (Erforderlichkeit) of the measure, by considering the possibility of less demanding solutions; the third step yields the proportionality in strict sense (Verhältnismäßigkeitsgrundsatz im engeren Sinne), and it can be carried out through the well-known Weigh Formula . I will return to this point in Section § 4, after the outline of Schauer’s norm theory . 3.

Frederick Schauer, the Nature of Rules, and the Under-/OverInclusiveness

A significant part of Schauer’s theory is aimed at explaining the ‘mystery of rules’, in order to reach a better comprehension of their ‘nature’ through a ‘philosophical approach’ .23 Schauer’s starting point is the positivistic assumption that law and morals are not necessarily connected . Therefore, legal norms belong to a certain legal system solely by virtue of a valid act of authoritative issuance . In other words, a piece of legislation is valid only if it is duly enacted . Legal systems comprise meta-norms that set down necessary conditions for the validity of the acts of norm-production accomplished by competent legal authorities .24 Thus, Schauer maintains that legal systems comprise two different kinds of norms: on the one hand, there are constitutive rules, which establish the “core criteria” for the authoritative issuance of any legal norm; on the other, there are regulative rules, defined by Schauer as ‘prescriptive generalizations’25 based on a ‘categorization’ process,26 which often relies on ‘stereotypes’ . Schauer sets his focus on the notion of regulative rules, assuming that the deep logical structure of any constitu-

21 22 23 24 25 26

Robert Alexy, TCR (footnote 21), 66–69 Robert Alexy, TCR (footnote 21), 102 Frederick Schauer, Playing by the Rules (PbR), Oxford, 1991, vii ff . Frederick Schauer, PbR (footnote 24), 120 ff . Frederick Schauer, PbR (footnote 24), 17 ff . Ibid .

Robert Alexy, Frederick Schauer, and the “Positivist” Theses

tive rule (Art . I of the U . S . Constitution, for instance) is ‘X counts as Y in the context C’ – as proposed by John Searle – where ‘X’ denotes a brute fact, ‘Y’ is a variable for institutional facts, and ‘C’ represents the context .27 Now, under Schauer’s perspective, regulative rules are pretty close to empirical rules . If we want to translate Schauer’s intuition into the language of statistical sciences, we might say that both kinds of rules are, to a certain extent, statements about normal distributions . A normal distribution is a function that represents the distribution of random variables of the data-set with a symmetrical bell-curve, showing that data near the mean (the “spread”), are more frequent in occurrence than data far from the mean . In a less technical jargon, we might say that both regulative and empirical rules are rules of thumb that capture probability distributions: for instance, a normative authority prescribes the limit of 55 mph for vehicles precisely because, according to the probability distribution, the risk of a car accident is much higher if the 55 mph limit is exceeded; similarly, the empirical rule ‘water boils at 100 °C’ was first stated as the result of a series of experiments aimed at determining the probability that water boils at 100 °C . Now, by definition, normative propositions pursue some intrinsic end: Schauer uses the label ‘underlying reasons’ for these normative ends . He hastens to clarify that underlying reasons cannot be simply reduced to those aims that, at a given time, a legislature wished to pursue (or to foster) by passing a law .28 To put it into Schauer’s own terms: ‘Behind every generalization is a justification . Sometimes called goals, sometimes purposes, or sometimes even (confusingly) reasons, justification exists because generalizations are ordinarily instrumental and not ultimate, and justifications are what they are instrumental to .’29

Let us take, for instance, the rule ‘Dogs are not allowed in the restaurant’: this rule represents a certain pattern of behavior (‘bringing dogs to the restaurant’) and prescribes that this pattern of behavior is prohibited . Such a rule implements certain ends, justifications, goals – what Schauer calls ‘underlying reasons’ – that are (at least partly) independent from the will of the normative authority that issued the norm . According to Schauer’s line of argument, we could legitimately assume that ‘avoiding annoying disturbances’, ‘avoiding allergic reactions’, ‘avoiding noises’, might figure among the plausible underlying reasons of the prohibition at stake .

John R . Searle, How to Derive ‘Ought’ From ‘Is’, The Philosophical Review 73 (1964), 43–59 Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, The Supreme Court Review (1990), 231–256, 237; Frederick Schauer, PbR (footnote 24), 209 f .; Frederick Schauer, Thinking Like A Lawyer A New Introduction to Legal Reasoning, Cambridge (MA), 30–32 29 Frederick Schauer, PbR (footnote 24), 53 27 28

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Now, how could we work out the underlying reasons of a rule, considered that they are ‘usually but not necessarily unstated’?30 Schauer’s answer is straightforward: regulative rules qua prescriptive generalizations are the product of probabilistic reasoning that establishes a relation between the class of entities comprised within the rule’s reference and a certain property that defines the underlying reason(s) . The pattern of behavior or, if you wish, the ‘factual predicate’ encoded in the rule ‘represents a set of facts whose existence indicates an increased likelihood of the occurrence of the justification […]’31 . Accordingly, any reasonable person would agree that, if we take the restaurant as a context, the presence of a dog will normally disturb the customers .32 As hinted above, in many cases, the generalization rests on some stereotype .33 Regulative rules are ‘crude probabilistic generalizations’ that work very well under standard conditions . However, in deviant cases, they simply fail to do their job and produce suboptimal decisions .34 In fact, Schauer contends that regulative rules might be under- or over- inclusive with respect to their underlying reasons, and that this trait is a necessary feature of any regulative rule . These drawbacks occur because the factual predicate of the norm might encompass states of affairs that are not comprised within the underlying reason, and vice versa . In the former case, we will say that the norm is over- inclusive, while in the latter we will say that the norm is under- inclusive . If we go back to Schauer’s well-known example, we can easily realize that a norm such as ‘Dogs are not allowed in the restaurant’ is both under- and over- inclusive: first, the prohibition comprises dogs that do not disturb (say, a well-trained seeing eye dog); second, the norm clearly does not take into consideration other animals that clearly annoy customers much more than dogs: bears, lions, tigers, monkeys, etc .35 Now, what happens if the rule – in spite of the likelihood of the probabilistic relation with the underlying reason – is under- or over- inclusive? If a judge faces what Schauer calls a ‘recalcitrant experience’ (a clash between the norm and the underlying reason), she is called to examine with close attention the extent of the normative conflict . If the judge considers that there is a sharp discrepancy, or, in other words, if she detects a situation of strong under-/over- inclusion, the underlying reason prevails . By contrast, if the under-/over- inclusion is low, then the regulative rule trumps the underlying reason . According to Schauer, regulative rules shall not be treated as entrenched generalizations, but they cannot even become entirely ‘transparent’: rules are defeasible, where ‘defeasible’ means that a rule might suffer implicit exceptions .36

30 31 32 33 34 35 36

Frederick Schauer, PbR (footnote 24), 32 Frederick Schauer, PbR (footnote 24), 30 Frederick Schauer, PbR (footnote 24), 31 ff . Frederick Schauer, Profiles, Probabilities and Stereotypes, Cambridge (MA), 2003, 1 ff . Frederick Schauer, PbR (footnote 24), xv; 21 ff . Frederick Schauer, PbR (footnote 24), 32; Frederick Schauer, Thinking Like A Lawyer (footnote 29) 27 ff . Jordi Ferrer/Giovanni Battista Ratti (eds .), The Logic of Legal Requirements, Oxford, 2012

Robert Alexy, Frederick Schauer, and the “Positivist” Theses

The fact that there might be gaps of inclusion with respect to the underlying reason(s) does not count as an argument for getting rid of legal rules: a judge shall resist the temptation of applying the underlying reason(s) directly, through a ‘particularistic’, case by case, reasoning . Schauer underscores that the generalization clearly works for every normal case, and that ‘[m]ost commonly, the application of a rule will be consistent with its justification .’37 Therefore, a judge shall always strike a balance between two opposite models of adjudication: the ‘entrenched model’,38 which considers regulative rules as indefeasible exclusionary reasons, and the ‘conversational model, which proceeds always through a particularistic, all-things-considered, deliberation, and which reduces regulative rules to ‘intrinsically unweighted guides’ for the application of the underlying reason .39 Law is primarily a form of rule-based decision making .40 It is worth stressing that Schauer considers the very idea of semi-entrenched rules as a distinctive trait of (his version of) legal positivism .41 What about the meaning of a rule? In Schauer’s model, the meaning of a rule can be grasped through a literal interpretation of the legal provision: sure enough, there might be hard cases, where the open texture of the (legal) language leads to indeterminacy, a situation that makes room for highly discretional decisions . However, also in hard cases, it is still possible to ascertain the core of the literal meaning without taking into account the context of litigation:42 it is hard to see how ‘dogs’ could possibly mean ‘cats’ or ‘bats’, or how ‘sleeping’ and ‘dancing’ could be considered as synonyms . Therefore, legal disputes shall be decided according to the literal meaning of the statutes, except in cases of high under-/over inclusiveness: under Schauer’s perspective, if we stick to textual interpretation we will avoid a whole series of cognitive biases that determine drawbacks in the decision making process, and we will reduce the number of indeterminacies that cannot be traced back to the ‘inevitable grossness of rules’ .43

Frederick Schauer, PbR (footnote 24), 209 Frederick Schauer, PbR (footnote 24), § 3 .1 Frederick Schauer, PbR (footnote 24), 55 ff . Frederick Schauer, PbR (footnote 24), 64 ff . Frederick Schauer, PbR (footnote 24), 199 f . Frederick Schauer, PbR (footnote 24), 152 ff . Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning (footnote 29), 234; 250; Frederic Schauer, PbR (footnote 24), 154 ff . Emily Sherwin, Judges as Rulemakers, The University of Chicago Law Review 73 (2006) 919–931 37 38 39 40 41 42 43

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4.

Proportionality vs. Under-/Over- Inclusiveness Test

As hinted above, the proportionality test – first introduced at the end of the XIX Century in the Prussian empire as a tool for evaluating Polizeitechts measures – became prominent in Rechswissenschaft during the Weimar period . In the 1920s, Rudolf Smend presented proportionality as a candidate for constitutional argumentation, and Herman Heller joined him, and proposed an early version of the Prinzipien model . By contrast, the under-/over inclusiveness test was introduced by the US Supreme Court before 1950 . It goes without saying that these methods are not the only possibilities for legal and constitutional adjudication: originalism, consequentialist reasoning, efficiency-based analysis, and other forms of ethical approaches are all good candidates, too . If other methods are possible, then we cannot maintain that the methods of adjudication proposed by Alexy and Schauer provide a ‘map’ of the necessary features of the law, for they are contingent . It would be more appropriate to say that Schauer proposes a theory of law that inter alia suggests an extension of a very specific test of the US legal culture, whereas Alexy reshapes a method of adjudication that was originally a distinctive trait of the German legal culture, which has now become global . In Alexy’s model, the first two stages of the proportionality test are aimed at establishing the correct allocation of principles according to Pareto efficiency: a state of affairs is Pareto-efficient if and only if there is a condition of equilibrium, where no alternative state of affairs would make some agents better without making any other agent worse . The third phase of proportionality, instead, is based on the acclaimed Weight Formula (Gewichtsformel): a mathematical formula that Alexy elaborated as a tool for making the cardinal ranking between competing principles both explicit and rational . The Weight Formula corresponds to the following equation:44 Wi,j = Ii ∙ Wi ∙ Ri Ij ∙ Wj ∙ Rj

Where ‘Wi’ are ‘Wj’ are variables for the abstract weight of the principles at stake; ‘Ii’ e ‘Ij’ stand for the degree of non-satisfaction, or detriment, of the principles; ‘Ri’ e ‘Rj’, stand for the degree of reliability of the empirical premises . Decision-makers shall assign to these variables numerical values following a triadic scale (20,21,22 for W and I; 20, 2–1, 2–2 for R), or a double triadic scale (with possible values that range from 20 to 28, and from 20 to 2–8, respectively) .45 If the result of the equation is superior to 1, the first principle prevails; if the result is inferior, the second principle prevails These numbers are placeholders for propositions that require further justi-

Robert Alexy, The Weight Formula, In: Law, Rights and Discourse: The Legal Philosophy of Robert Alexy, ed . George Pavlakos, Oxford, 2005, 51–62 . 45 Ibid . 44

Robert Alexy, Frederick Schauer, and the “Positivist” Theses

fication through the rules of the Diskurstheorie 46 As the very examples proposed by Alexy show, the Weight Formula and, more broadly, the proportionality test are part of a rational model for legal argumentation . Alexy himself applies this model qua rational reconstruction of landmark decisions of the Bundesverfassungsgericht, such as the Titanic Entscheidung,47 or the Tabak Entscheidung 48 The balancing test as method for judicial review is not an “invention” of Robert Alexy, for it was prominent during the so-called “dispute on (legal) method” (Methodenstreit) in the Weimar Period (1919–1933) .49 Judicial balancing was understood by Herman Heller and Heinrich Triepel as a tool for dealing with the new trends in constitutional law:50 the rationalization of power, the idea that a constitution is also a symbol of national unity, which incorporates substantive values, and that constitutions shall be responsive to social changes . In the aftermath of World War I, Hermann Heller developed a principle-based theory that prefigures some of Alexy’s theses, and Rudolf Smend attempted to elaborate a philosophical analysis of judicial balancing .51 To be sure, these early attempts were still very far from the great complexity and analytic refinement of Robert Alexy’s position, but they show that judicial balancing was already the object of a lively debate in Germany, during the first decades of the XX century . If Heller and Triepel were the godfathers of judicial balancing, the locus classicus of the under-/over-inclusiveness test is the concurring of Justice Harlan to Welsh v United States (1970);52 another classic example is City of Richmond v J A Croson Co (1989),53 where the Supreme Court stroke down The Minority Business Utilization Plan imposed by the city of Richmond (Virginia), and contended that the Plan was not a narrowly tailored means to achieve its goal . With an eye to contemporary Supreme Court’s case-law, the so-called under-/over- inclusiveness test represents one of the traditional methods for checking the reasonableness of a statute under the XIV Amendment . Constitutional scholars granted close attention to this test,54 but the most accurate analysis is still the one elaborated by Tussmann and TenBroek in their

Robert Alexy, Theorie der juristischen Argumentation Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung . Frankfurt am Main, 1978 . 47 BVerfGE 86, 1 (1) 48 BVerfGE, 90, 145 (177) 49 Stanley L . Paulson, The History of Public Law in Germany 1914–1945, 25 (2005) Oxford Journal for Legal Studies, 525–545 50 Herman Heller, Gesammelte Schriften, Leiden, 1971, 3 ff .; Heinrich Triepel, Staatsrecht und Politik, in: Beiträge zum ausländischen öffentlichen Recht und Völker- recht, Heft I . The Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht (ed .), Berlin/Leipzig, 1927, 5 ff . 51 Rudolf Smend, Staatsrechtliche Abhandlungen . 3rd Aufl Berlin . 1994 52 Welsh v United States, 398 U . S . 333, 361 (1970) (Harlan, J ., concurring) 53 City of Richmond v J A Croson Co , 488 U . S . 469 (1989) 54 Gayle L . Pettinga, Rational Basis With Bite: Intermediate Scrutiny by Any Other Name, Indiana Law Journal 62 (1987), 779–803; Roy L . Brooks, Race as an Under-Inclusive and Over-Inclusive Concept, Berkeley Journal of African-American Law and Policy 1 (1994), 9–32 46

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1949 essay on the equal protection clause As Tussmann and TenBroek explain, the starting point of the under-/over- inclusiveness test is the idea that legal rules are generalizations obtained through a process of categorization that selects relevant properties, precisely as Schauer claims:

‘We begin with an elementary proposition: To define a class is simply to designate a quality or characteristic or trait or relation, or any combination of these, the possession of which, by an individual, determines his membership in or inclusion within the class . A legislature defines a class, or “classifies,” when it enacts a law applying to “all aliens ineligible for citizenship”, or “all persons convicted of three felonies”, or “all citizens between the ages of 19 and 25” or “foreign corporations doing business within the state .” ’55

It goes almost without saying that these generalizations shall be reasonable . But how shall we proceed? We shall compare the generalization with the (intrinsic) end(s) pursued by the rule: ‘But if we avoid these two errors, where are we to look for the test of similarity of situation which determines the reasonableness of a classification? The inescapable answer is that we must look beyond the classification to the purpose of the law . A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law . The purpose of a law may be either the elimination of a public “mischief ” or the achievement of some positive public good . To simplify the discussion we shall refer to the purpose of a law in terms of the elimination of mischief, since the same argument holds in either case . We shall speak of the defining character or characteristics of the legislative classification as the trait . We can thus speak of the relation of the classification to the purpose of the law as the relation of the Trait to the Mischief .’56

Tussmann and TenBroek, explain that there are five possible relation between the class of cases selected by the norm (T), and the class of cases that can be identified in the light of its purpose (M): (1) All T’s are M’s and all M’s are T’s; (2) No T’s are M’s; (3) All T’s are M’s but some M’s are not T’s; (4) All M’s are T’s but some T’s are not M’s; (5) Some T’s are M’s; some T’s are not M’s; and some M’s are not T’s . From both a theoretical and practical perspective, the most intriguing cases belong to the third type, which Tussmann and TenBroek name – precisely as Schauer does – situations of ‘under- inclusiveness’: ‘Classification of the third type may be called “under-inclusive .” All who are included in the class are tainted with the mischief, but there are others also tainted whom the classification does not include . Since the classification does not include all who are similarly

Joseph Tussmann/Jacobus TenBroek, The Equal Protection of the Laws (EP), California Law Review 37 (1949) 341, 345 ff . 56 Joseph Tussmann/Jacobus TenBroek, EP (footnote 56), 346 55

Robert Alexy, Frederick Schauer, and the “Positivist” Theses

situated with respect to the purpose of the law, there is a prima facie violation of the equal protection requirement of reasonable classification . But the Court has recognized the very real difficulties under which legislatures operate-difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to reshape-and it has refused to strike down indiscriminately all legislation embodying the classificatory inequality here under consideration . In justifying this refusal, the Court has defended under-inclusive classifications on such grounds as: the legislature may attack a general problem in a piecemeal fashion; “some play must be allowed for the joints of the machine”; “a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset …”; “the law does all that is needed when it does all that it can … .”; and perhaps with some impatience the equal protection clause is not “a pedagogic requirement of the impracticable .” ’57

Now, what is the solution that Tussmann and TenBroek suggest for dealing with these situations? It turns out that it is basically the same recipe that Schauer proposes, to wit: decision-makers shall give precedence to the rule, unless there is a fair reason for over-riding the rule . The legislator, so to speak, can be subject to censorship only under condition of over-eager acquiescence: ‘It is probably true, however, that nowhere more than in the area of equal protection does tolerance towards deviation from great principle go by the name of statesmanship . Appreciation of difficulties and sympathetic tolerance are needed . But judicial statesmen are also concerned to strengthen and guard the integrity of the legislative process . This may well require the testing of legislation by higher standards than legislatures sometimes adopt for themselves . With respect to under-inclusive classifications this means that the Court, while giving weight to pleas of administrative difficulties, must stand guard against an overconcern for mere “convenience”; and, while recognizing the facts of pressure politics, must place a barrier in the path of over-eager acquiescence .’58

As Tussmann and TenBroek’s 1949 essay clearly show, under this respect, Schauer’s theory can be considered, to a certain extent, as an analytic restatement and justification of a test for judicial review that is well-known in the United States, and that has been used by the Supreme Court in the enforcement of the equal protection clause Schauer expands the scope of this test that, within his theory, is the tool that we shall apply by default to check whether we shall grant precedence the rule or to the underlying reason .

57 58

Joseph Tussmann/Jacobus TenBroek, EP (footnote 56), 348 Joseph Tussmann/Jacobus TenBroek, EP (footnote 56), 351

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5.

Conclusion

To come full circle, the analysis proposed in this paper suggests three conclusions . First, both Schauer and Alexy are not simply “mapping” features of legal norms and legal systems, for their theories also serve as conceptual grounds for justifying contingent methods of legal adjudication, which are specific to their respective legal cultures . Second, precisely for this reason, we might contend that these two, opposed, theories have been highly influenced by their respective socio-cultural milieus . Third, we can also note how the international debate over the relations between law and morals tends to evolve toward a dispute on how we shall determine the content of the law .

Dr . Alessio Sardo Bocconi University, via Roentgen 1, 1st Floor, Milano (ITALY) 20136, Email: alessio .sardo@unibocconi .it

Does Hans Kelsen’s Pure Theory of Law Support the Rule of Law and Democracy? MONIKA ZALEWSKA

Abstract

It is widely felt that that Kelsen’s theory, a universal framework to describe any legal system, is unable to support democratic systems . However, by presenting several elements from Kelsen’s pure theory of law, critique of natural doctrines and theory of democracy, this paper will argue otherwise . First, the hierarchical structure of law will be presented as a crucial element of democracy . Since the hierarchical structure of law demands that lower legal acts are in accordance with higher legal acts, they limit the freedom of an authoritarian regime in their decisions . Following this, it will be argued that the supervenience principle, as a bridge between Is and Ought, allows the principle of equality to be inferred . Keywords: Hans Kelsen, Democracy, Supervenience, Is and Ought, Normativism

Introduction

Hans Kelsen’s Pure Theory of Law is among the most influential legal theories of the twentieth century . The hierarchical structure of law, the basic norm and the Is and Ought duality are the theory’s renowned elements, and these have determining legal thinking in many countries, especially in Central Europe . However, the impact of Kelsen’s theories on political systems remains controversial . A common opinion among legal scholars and in public political debate is that legal positivism, and especially Hans Kelsen’s Pure Theory of Law, served as the framework underlying the genocide of the Nazi regime . Nowadays, the legal positivism embodied by Kelsen’s Normativism remains a popular tool in political disputes; for instance, normativism is associated with the creation of highly unjust laws . The aim of this paper is to argue the contrary . It will be explained that Pure Theory of Law could not endorse

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the Nazi regime, and Pure Theory of Law is rather an inconvenient device for a regime attempting to impair the rule of law and democracy . Hence, the first part of the paper will briefly discuss the most popular myths surrounding Pure Theory of Law . This part will demonstrate that common opinions regarding the antidemocratic character of normativism supporting the Nazi regime stem mostly from a simplified vision of Kelsen’s theory . It will be argued that Kelsen’s Pure Theory of Law, being a universal theory of law with a descriptive character, can describe law in both democratic and totalitarian regimes . However, contrary to the democratic legal order, Pure Theory of Law cannot be applied to every totalitarian regime due to the concept of the hierarchical structure of law . Hence, a case for the hierarchical structure of law will be made claiming its necessary but insufficient character for democracy and material rule of law . The second part of the paper will argue that the separation of Is and Ought is not of a radical character and supervenience is the relation binding these two worlds . Such an interpretation reveals two hidden elements in Pure Theory of Law: formal equality and the concept of the rational lawmaker . Finally, it will be maintained that Kelsen’s general vision of law defined in Philosophischen Grundlangen der Naturrechtslehre und Rechtspositivismus1 as an order based on peace, and the idea of democracy presented in Staadt und Weltanschauung have the same origin in terms of values . Namely, both concepts stem from confidence in reason and science . 1.

Pure Theory of Law and Formal Conception of the Rule of Law.

1.1

Pure Theory of Law and Nazi Regime.

The impact of Pure Theory of Law on political system is often misunderstood . The most common argument involves the Radbruch Formula and the conviction that legal positivism is helpless, in the face of totalitarian regimes and the genocides committed within its structure . In fact, legal positivism is rather a “scapegoat for National Socialism perversion of the law”2 . In the Nurnberg trials, the Nazi officers defended themselves by Lex retro non agit principle, asserting that, as they had been acting on behalf of an internationally-recognized state, their deeds were legal . Gustaw Radbruch formulated the most famous counter argument to Nazis’ claims . His work maintains that when the conflict between justice and the reliability of law exists, it should be resolved in the favour of reliability, with the exception of one situation: namely, when the discrepancy Translated as a part of General Theory of Law and State Matthias Jestaedt, Oliver Lepsius, Verteidigung Der Demokratie: Abhandlungen Zur Demokratietheorie (Tübingen, 2006), IX 1 2

Does Hans Kelsen’s Pure Theory of Law Support the Rule of Law and Democracy?

between justice and reliability is at an unbearable level, such a law is erroneous or even is not a law at all3 . This mode of reasoning was widely accepted and additionally regarded as an argument against positivistic doctrines, including Normativism . In 1958, Herbert L . A . Hart formulated a response defending legal positivism . Firstly, his work indicates that by separating law and morality, the positivistic doctrine provides a clear definition of law . For the positivistic lawyer, a legal system that impairs just rules to an unbearable extent would still be seen as law, but one that overly immoral to obey . Secondly, Hart points out the arbitrary criteria, and the naivety, of the claim that Nazis used the positivistic concept of law to bolster their immunity against ethical arguments . In fact, Nazi doctrine incorporated elements of natural law, and a positivist approach could have been observed in their conformist attitude towards valid law . Hart continues to note the impossibility of establishing clear boundaries of for what could be considered an unbearable level of unjust norms . Finally, Hart observes that Radbruch, in his formula, avoided the other principle of nullum crimen sine lege . Instead, it would be better to weaken the Lex retro non agit principle, admitting that in some cases, when injustice is at unbearable level, it is necessary4 . Although Hart’s argument is widely recognized, Kelsen offered a similar solution first by indicating the purpose of the lex retro non agit principle in 1945 . Namely, Kelsen notes that in criminal law, the rule of lex retro non agit predominantly concerns duties in a grey area of morality, e . g . abortion, where some part of the population might view it as immoral and the other part might regard it as morally justified . Hence, the law concerning abortion might change with the tide of public opinion, and in such cases, Lex retro non agit principle is necessary to protect those who had performed an abortion when it was legal . However, in case of the Holocaust, it is obvious the atrocity was deeply immoral and it would be hard to argue that one did not recognize the cruelty of the process; in this case, lex retro non agit should not have protected Nazi officers who had committed the crime5 . To sum up, Kelsen moved the problem of extreme unjust law from the sphere of validity to the area of legal interpretation . Since Kelsen’s remarks concern the international law system, they do not impair his vision of the hierarchical structure of the domestic law system, which is a primary component to the formality of the rule of law . An objection to Kelsen’s solution to the problem of how to confront a clearly unjust law was raised by Frank Haldemann, who suggested that by proposing this solution, Kelsen had introduced moral values to his

Gustav Radbruch, ‘Five Minutes of Legal Philosophy’, Oxford Journal of Legal Studies 26, no . 1 (2006): 13–15 . 4 H . L . A . Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Journal 71, no . 4 (1958): 593–629 5 Hans Kelsen, ‘The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War Criminals’, The Judge Advocate Journal, no . 2 (1945): 8–11 3

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Pure Theory of Law6 . This apparent inconsistency can be resolved by assuming that Kelsen in fact offers a solution on the normative level of legal interpretation, and not on the theoretical level of Pure Theory . In fact, Kelsen bases his argument on how legal interpretation should be performed by a good judge . Such a solution might not be satisfying for Kelsen’s opponents . For instance, Haldeman understands the role of the judge in Kelsen’s theory as strictly applying the law7 . Hence, Kelsen’s opponent could argue that the judge could not have used the solution offered by Kelsen, since it would have been against lex retro non agit . This sounds correct, however, only Kelsen’s theory of legal interpretation can fully address the question of what is meant by “strict application” . In fact, Kelsen rejected the traditional positivistic view with a singular solution obtained by the application of legal syllogisms . Instead, Kelsen claimed that the task of the judge was to identify a frame of possible meanings of the norm and choose the most proper one8 . Hence, in case of the Nurnberg trials, the judge should have properly interpreted the lex retro non agit rule Kelsen’s approach to the problem of extremely unjust law has one more advantage . Namely, such law might be interpreted as not being law, or not as valid law . Such a statement has strong rhetorical power and is more attractive than the solution appealing to the lex retro non agit principle . However, such approach has a side effect . As a consequence, a typical citizen might view any efficient legal system as justified: a citizen of a totalitarian regime might falsely argue that although the extremely unjust legal order is be valid, the legal order is nevertheless valid, and hence, it cannot be extremely unjust . The rhetorical power of such claim might be successful . Kelsen’s and Hart’s way of perceiving law is more honest, in that they assert that law can have any content, be it just, unjust content and or extremely unjust . For this reason, we need to be always cautious and critical of law . We should not simply assume a written law as being just . 1.2

Hierarchical Structure of Law.

Hierarchical structure of law is the central concept of Kelsen’s theory . The idea is based on the principle that an organ empowered by a higher norm delegates the competence to issue a norm with certain content to another organ . This sequence continues until issuance of the individual norm9 . Such a construct implies two important facts . Firstly, the connection between particular norms is of a formal character, meaning that one organ delegates the competence expressed in a higher norm to issue a lower norm of

Frank Haldemann, ‘Gustav Radbruch vs . Hans Kelsen: A Debate on Nazi Law’, SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, 1 June 2005), 170 7 Such approach is criticized by: Jestaedt, Lepsius, Verteidigung Der Demokratie, XIV . 8 Hans Kelsen, Pure Theory of Law (The Lawbook Exchange, Ltd ., 1967), 348–52 9 Kelsen (footnote 7), 193–217 6

Does Hans Kelsen’s Pure Theory of Law Support the Rule of Law and Democracy?

specific content . Secondly, this hierarchical structure of law is based on the assumption that the lower norm, in order to be valid, must be in accordance with the higher norm . These two features are essential components of the formal rule of law . Such delegation of competences prevents executive power from assigning an excessive amount of authority to a single person10 . The idea that the lower norm must be in accordance with a higher one, and ultimately with the constitution, is a necessary condition for any concept of the rule of law, whether it is a formal or material rule of law . In a liberal democracy, that is a democracy respecting human rights and granting necessary freedoms, this condition is necessary but not sufficient . However, the function of the hierarchical structure of protecting the existing liberal democracy is fundamental . Namely, the recognition of hierarchical structure of law ensures constitutional obedience . Kelsen was aware of this fundamental character of hierarchical structure of law . For this specific reason, he developed the idea of the constitutional court, which is burdened with the task of controlling the consistency of parliamentary acts with the constitution . Such a vision of law prevents the departure of the political system from democracy to autocracy . Hypothetically, if parliament wished to change the political system and had no required majority to change the constitution, the only way to do so is to change the concept of law . The vision of law where “the majority rules”, contrary to that of Kelsen in which minorities’ protection must be guaranteed, has weak potential to ensure the reliability of the law and the rights of the People . The rhetorical power of the “majority rules” principle might justify breaking the constitution and lead to autocracy . As was mentioned before, although the hierarchical structure of law is a necessary condition for the rule of law, it is not sufficient condition for a liberal democracy . One can imagine a totalitarian legal system where hierarchical structure of law functions: for instance, impairment of human rights is possible if the definition of People is narrowed . Alternatively, the introduction of a general clause ensuring human rights, unless it impairs interests of the state, might create a totalitarian system in which any action of those in power is legitimate . Hence, the question arises of whether any other components of Kelsen’s theory might strengthen the rule of law and democracy . At first glance, the formal character of Normativism is unable to deliver more than the hierarchical structure of law . However, deeper analysis and interpretation of pure theory of law can potentially offer more material components than one could expect . In the next paragraphs, I will present two interpretations of Kelsen’s theory which strengthen the idea of democracy and rule of law . The first is based on the assumption that Is and Ought are not radically separated but there is a weak link between them: namely, supervenience . If this is correct, then pure theory of law introduces the idea of formal equality to law .

10

Kelsen (footnote 7), 221–24

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The second interpretation is based on Kelsen’s observation of the conflict between peace and justice, and his thesis that the goal of law is to ensure order based on peace rather than justice . This conclusion leads Kelsen towards the notion that a political system based on a peace value is able to efficiently fulfil this postulate of democracy . 2.

Supervenience, equality and rational lawmaker in Pure Theory of Law?

2.1

Supervenience in Normativism?

The justification of supervenience as the relationship between Is and Ought is derived from the observation that separation between Is and Ought in normativism, especially in the final phase, is not radical11 . Kelsen himself provides examples, such as when he discusses the so-called “bruecken”- principles, for instance, when the empirical act of will of the lawmaker is enclosed in the definition of the norm . The other possible example is imputation, understood as analogical to causality a normative link between two states of affairs (Tatsachen)12 . Hence, it is important to determine the type of relationship between law and facts that occurs in Pure Theory of Law . Similar questions have been raised by legal positivists, who in their attempts to define the relationship between law and facts have posited three main candidates: reduction, supervenience and grounding; however, although supervenience has generally been ruled out as being too weak for the positivistic thesis that law is a fact13, the weak character of supervenience makes it a strong candidate for a link between Is and Ought in Kelsen’s study . Since on an ontological level, Kelsen does not deny some links between Is and Ought, supervenience may potentially serve as the link in question . Supervenience is defined as “there is no A difference without B difference”14 . Basically, when the features in set A vary, the features in the B categories also need to differ . This rule can also imply that if the features in set B are the same, the features in the set A are also the same . For instance, if one agrees that St . Francis is good (set A) because he is brave, kind and generous (set B), anyone who has the same features from set B (bravery, generosity and kindness) must have the same features as

Norbert Achtenberg, ‘Brucken Zwischen Sein Und Sollen: Autonome Determinante Und Modal Indifferentes Substrat’, in Rechtsystem Und Gesellschaftliche Basis Bei Hans Kelsen, by Werner Krawietz and Helmut Schelsky, Rechtstheorie, Beiheft 5, 1984, 446–48 12 Hans Kelsen, General Theory of Norms (Oxford: Clarendon Press, 1979) 13 Tomasz Gizbert-Studnicki, ‘The Social Sources Thesis . Metaphisic and Metaphilosophy’, in Metaphilosophy of Law, by Pawel Banas, Adam Dyrda, and Tomasz Gizbert-Studnicki (Oregon: Oxford and Portland, 2016), 121–46 14 Jaegwon Kim, Supervenience and Mind: Selected Philosophical Essays, y First edition edition (New York, NY, USA: Cambridge University Press, 1993) 11

Does Hans Kelsen’s Pure Theory of Law Support the Rule of Law and Democracy?

those in set A . On the other hand, if someone is not a good man, he cannot also be brave, kind and generous15 . If applying the relation of supervenience to Pure Theory of Law and its normative categories, such as imputation, natural versus legal person, and the norm and the act of will, one can note that the value of equality is derived on behalf of supervenience . 2.2

Imputation and Supervenience.

Imputation is defined as a category analogical to causality . While causality can be described by the schema “if B, then is A”, imputation is expressed as follows: “if B, then ought to be A” . It binds two facts: the condition of applying a sanction and the obligation to apply the sanction, for instance, if X killed, then X should be punished16 . When considering supervenience, imputation can be regarded not in relation to causality, but as a special kind of supervenience relation itself . On behalf of supervenience, imputation expresses two rules: the first being where an order of A and B is justified by the nature of supervenience, and the second where ‘when features B are more basic than features A, features A are to some extent derived from features B’ . 1 . If the consequences (sanctions) are different (A), the conditions (e . g . of committing a crime) are different (B) . 2 . If the conditions (e . g . of committing a crime) are the same (B), the consequences (sanctions) are the same (A) . The rules 1) and 2) derived on behalf of supervenience remind of the formal equality principle (in alike circumstances one should be treated alike) . One could object that these two rules do not apply in real life . Two courts might deliver two different rulings, even though, the circumstances (conditions) may be the same . However, if Kelsen’s theory is treated as a Weberian scientific ideal type17, this argument does not apply . The ideal type describes typical features of a phenomenon, for instance, a horse has four legs . The reality, where a horse is born with only three legs does not contradict the general claim that the horse has four legs . The same can be argued about law . The situation where two courts issue different verdicts for a crime characterised by the same

The problem of supervenience was formulated for the first time by Haare, who writes as follows: “First let us take that characteristic of “good” which has been called its supervenience . Suppose that we say “St . Francis was a good man .” It is logically impossible to say thus and to maintain at the same time that there might have been another man placed exactly in the same circumstances as St . Francis and who behaved in exactly the same way but who differed from St . Francis in this respect only that he was not a good man .” (R. M . Hare, The Language of Morals, Reprint edition (Oxford: Oxford University Press, 1991), 145 .) 16 Kelsen (footnote7), 76 17 For such interpretation of Pure Theory of Law see: Dhananjai Shivakumar, ‘The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian Methodology’, The Yale Law Journal 105 (1996) . 15

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circumstances does not contradict the potential claim that formal equality applies to the principle of ideal type of law . The other objection can be raised here, especially in the case of Kelsen’s theory, where the introduction of a normative postulate to the theory is strongly based on the separation of law and morality . However, the counter argument to this objection is based on the need to distinguish two situations . The first such situation is one where the legal theory is a priori built on a normative postulate such as equality, justice or dignity . Such a legal theory would be regarded as natural law doctrine . However, a different situation arises when the principle of equality is derived a posteriori, as a result of reasoning . In this second case, the equality principle can be regarded as a normative element hidden in our understanding of law . As Kelsen noted himself, such equality has a formal character and still requires law to detail the circumstances that are alike and propose similar treatment18 . The answer to the question of whether the equality rule is within our understanding of law could be delivered by the hypothesis that the equality principle might be associated with components which cause common acceptance for a legal system . As such, the equality rule is one of the benefits of the existence of law . Nevertheless, the question remains of whether law would be accepted and evolve to such sophisticated form, if it did not offer the benefit of equality . If the answer to the question were negative, it could be concluded that, firstly, formal equality does not have to impair Kelsen’s separation of law and morality and secondly, that there are premises indicating that equality is within our understanding of ideal type of law . The imputation associated with the fact of breaking a law and an ensuing sanction is bound with a personal perspective . Thus, supervenience allows to derive the equality rule in the case of a natural or legal person and an individual category . In this case, the following rules apply: 1 . If the legal situation of two persons is different, their factual situation is different . 2 . If the factual situation of two persons is the same, their legal situation is the same . To conclude, not only supervenience uncovers the equality rule, but also shows an exact connection between imputation and natural and legal person .

Hans Kelsen, General Theory of Law and State, trans . Anders Wedberg (Cambridge: Harward University Press, 1945), 440 18

Does Hans Kelsen’s Pure Theory of Law Support the Rule of Law and Democracy?

2.3

Norm Act of Will and Rational Lawmaker.

The analysis of the definition of the norm, understood as the meaning of the empirical act of will19, in the context of supervenience yields further discoveries . The relationship between the norm (on the higher level: A) and the empirical act of will (basic level, B) enacted through supervenience generates two rules: 1 . If the two norms are different, then the will of the authority must be different . 2 . If the will of the authority is the same, the norms should be the same .

The second condition seems problematic since the will of two authorities can be the same (for instance, smoking prohibition) while the norms might be different (for instance, in terms of the severity of the sanction) . However, this is the case only if the will of authority is understood in a narrow sense, reduced to the purpose of law . Kelsen meant the will of authority in a broader sense, as a will of ends and means, and hence, the entire norm, including the exact concept of the sanction20 . In such a case, supervenience reveals another important component needed for democracy and the rule of law: the rational lawmaker . Obviously, not all postulates about the rational lawmaker are included here, especially those focusing on the content of the norms; however, to the extent that the will of the lawmaker must be coherent with the content of the norm, the assumption of the rational lawmaker can be derived from the Pure Theory of Law on behalf of supervenience . To sum up, by introducing supervenience as a mode of thinking about the connection between law and reality, it is possible to derive two new categories of normative character from Pure Theory of Law: the formal equality rule and the rational lawmaker assumption . To some extent, this might explain why Pure Theory of Law designed to fit any legal system agrees closely with the concept of democracy promoted by Kelsen . In the final part, I will examine the direct link between pure theory of law and theory of democracy introduced by Kelsen . 3.

Pure Theory of Law and Democracy. Do They Have a Common Ground?

The final question is whether Kelsen separately promotes democracy through Pure Theory of Law and Theory of Democracy, or whether they share a common ground . The answer to this question can be found in “Natural Law Doctrine and Legal Positivism” which, in case of English translation, is a part of “General Theory of Law and State” .

19 20

Kelsen, General Theory of Norms, 2 Kelsen (footnote 15), 11

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In this text, Kelsen tries to analyse the reasons present behind certain worldviews and demonstrates a refined perspective focusing on the antimony between justice and peace . As Kelsen notes: “the longing for peace means, as a rule, a renunciation of the original ideal of justice21” . His thesis is justified by the theory of personalities . Kelsen postulates that doctrines rejecting law, such as ascetism and anarchism, as well as those seeking to maintain the status quo, such as conservatism, have their roots in two types of metaphysical dualism: pessimism, in the case of the former, and optimism, of the latter . These two doctrines set in the frames of dualism inquire into the ideal, the divine world and absolute justice . Depending on a pessimistic or optimistic attitude, an individual can reject or accept the empirical world as either imperfect or an emanation of the divine world and natural law . However, the idea absolute justice as impossible to establish can never generate the peace . One justice formula excludes groups of treated unjust, who as a result plan the revolution . For this reason, Kelsen rejects metaphysical dualism and offers the alternative of a critical scientific point of view: one that is rational and based on scientific discovery . According to this principle, questions about absolute justice are considered unscientific . Instead, to adopt a scientific interpretation of law, one must assume that human knowledge is driven forward by a constant debate . In law, such point of view results in positivistic doctrine . Critical legal positivism withdraws inquiry from justice and tries to describe law objectively . According to it, there is no absolute formula for what can be considered justice, but rather a belief that values and interests can be the subject of debate . Hence, a positivistic legal order promotes the value of peace based on deliberation and compromise22 . Kelsen observes that people are generally not interested in peace because of its just character . They mostly evaluate their situation and decide to remain in a state of peace because it is beneficial, even though the order may not be entirely just . A state of peace simply secures their most basic interest . Kelsen, in the context of his theory, writes: “The content of the positive legal order is no more than the compromise of conflicting interests, which leaves none of them wholly satisfied or dissatisfied . It is the expression of a social equilibrium manifested in the very effectiveness of the legal order, in that it is obeyed in general and encounters no resistance . In this sense, critical positivism recognizes every positive legal order as an order of peace”23 .

As an antithesis, Kelsen presents a natural law doctrine based on the idea of justice . Natural doctrines are based on an ideal of justice as a device legitimizing the ideology of the stronger group in power . Justice perceived as an absolute foundation of the social order has great persuasive power, but also generates conflicts24 . As van Ooyen 21 22 23 24

Kelsen (footnote 14), 441 Kelsen (footnote 14), 441 Kelsen (footnote 14), 439 Kelsen (footnote 14), 446

Does Hans Kelsen’s Pure Theory of Law Support the Rule of Law and Democracy?

notes, Kelsen’s critique of natural law does not mean that Kelsen rejected the rights which form the content of positive law . What Kelsen rejected was the justification of the belief that they stem from natural law . In Kelsen’s opinion, such a justification had supported the status quo for generations 25 . Van Ooyen notes that Kelsen’s rejection of the justification of law by means of any ideology understood as natural law, or by absolute values, sovereign power or Marxist theory, removed the danger of absolute validity . Validity in Kelsen’s theory depends on the will of people, and the norm is only valid if such will of the lawmaker exists26 . Kelsen’s theory assumes that plurality of interests, as a foundation of peace, is unable to provide a single united formula of justice, because the configuration of interests in society, and hence any potential compromise, remains dynamic . As van Ooyen notes: “Vielheit und Relativitaet der politischen Weltanschaungen und Weltorientierungen bedingen dass die Begruendung der “Gemeinschaft” als politische Einheit “Staat” auch nicht mehr aus der etischen Qualitaet des Rechts heraus moeglich ist…”27 Kelsen perceived critical legal positivism as being associated with the posteriori common good, created as a compromise of the democratic process . The traditional alternative stemming from natural law doctrine is the idea of an a priori common good, which defines the political system and a specific set of values upfront28 . Kelsen notes that positivistic doctrines promoting a rational and scientific point of view thrive in times of social balance29 . In the times of unrest, the tendency exists to search for an absolute foundation . Robert van Ooyen in this context makes a remarkable observation, that Kelsen, who for the first time wrote about common good in his habilitation in 1911, formulated conditions of an open society long before Popper, at a time when such a society was unthinkable30 . The antithesis of peace as a goal of legal positivism, and of justice as a goal of natural law doctrines, is a point which smoothly leads to Kelsen’s political Theory of Democracy . In the text “Staatform und Weltanschaung”, Kelsen compares and contrasts democracy with autocracy . His work aims to make a distinction between the rational and irrational, and the controversy surrounding whether absolute value exists or not .31 Democracy is based on relativism and rationality . The main condition of such debates is the freedom and equality derived from these values . Such equality is understood as a

Robert Chr . van Ooyen, Hans Kelsen Und Die Offene Gesellschaft (Wiesbaden: VS Verlag, 2010) van Ooyen (footnote 21), 31 „The multiplicity and relativity of the political worldviews and world orientations require that the justification of the community “as a political unity “state” is no longer possible by ethical quality of the law” Translated: MZ van Ooyen, 32 . 28 See: van Ooyen (footnote 21), 15 . 29 Hans Kelsen (footnote 14), 445 30 van Ooyen (footnote 21), 16 31 Hans Kelsen, ‘Staatform Und Weltasnchauung’, in Die Wiener Rechtstheoretische Schule, ed . Hans Klecatsky, Rene Marcic, and Robert Schambeck, vol . 2 (Franz Steiner Verlag, 2010), 1576–90 25 26 27

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recognition of the Me – You relationship, resulting in the creation of a sense of responsibility and tolerance . These conditions in turn open a space for tolerance, debate and compromise, and allow a critical view . The compromise resulting from such debates is a guarantee of peace . In the contrary, autocracy is governed by irrationality and query about the absolute value of justice . According to such doctrines, there can only be one valid point of view, that held by those in power . Such an approach generates inequalities between rulers and the ruled . In an autocracy, there is no place for acknowledgement of the perspective of the other, or his freedom . In such an order, tolerance is impossible and there is no room for debate or a critical point of view . Instead the only doctrine regarded as valid is based on the irrational conception of absolute justice embodied in the leader, whose power has its source in God’s will . The irrationality of the doctrine, the lack of tolerance or respect for any cultural or national differences, and the rule of the most powerful, produces imbalance and potentially leads to war in the name of dominating ideology and imperial interests . A comparison of the origins of the Pure Theory of Law and the Theory of Democracy suggest that both theories are derived from the same worldview . This worldview is rational and scientific . As such, it allows for tolerance and debate . On the contrary, natural law doctrines which promote one absolute vision of justice are unable to form a space for democratic discourse . Hence, Kelsen’s vision of law and society positivistic doctrine serve as necessary but not sufficient conditions for democracy . Such an approach explains, why positivistic theory, although universal and adjusted also to even totalitarian regimes is especially well attuned to democratic systems .

This foregoing analysis of both the legal and political perspectives confirm Kelsen’s position that legal positivism and democracy originate from the same worldview: the qualities of rationality, tolerance and compromise which are ultimately capable of assuring peace . Hence, the positivistic doctrine supports democracy in a natural way . In contrast, natural law doctrines, with their ambition to find absolute value, leave no room for tolerance, or respect for cultural differences . As a result, such natural law doctrines, being derived from the same worldview as authoritarian and totalitarian regimes, have a natural tendency to support autocracies and are often associated with conflict and war . 4.

Concluding remarks.

At first glance, it is easy to assume that Kelsen’s neopositivistic, formal theory could be adjusted to any type of political system, even a totalitarian one . However, in practice, Kelsen’s Pure Theory of Law is inconvenient for autocratic regimes . Firstly, due to hierarchical structure of law, normativism promotes the formal rule of law; however, while

Does Hans Kelsen’s Pure Theory of Law Support the Rule of Law and Democracy?

the hierarchical structure of law is a necessary condition of the rule of law, it is not a sufficient one and further elements are required . Its implied supervenience indirectly endorses the vision of law based on equality and the concept of the rational lawmaker . Finally, democracy and legal positivism stem from the same set of values, understood as a critical worldview based on reason and science . The positivistic point of view undermines the absolute value of justice as the basis of the legal system, while making democracy a natural consequence of a positivistic point of view . Thus, Kelsen’s Pure Theory of Law provides a coherent understanding of law with the theory of liberal democracy . Monika Zalewska University of Lodz, Poland, Faculty of Law and Administration, Department of Theory and Philosophy of Law, Kopcinskiego 8/12, 90–232 Łodz, Poland, mzalewska@wpia .uni .lodz .pl

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A Particularistic Dimension of the Rule of Law On Razian Conception and a Perspective to Misrule KUMIE HATTORI*

Abstract

This article analyses the third principle of the rule of law proposed by Raz, and identifies that this principle combines three aspects: validity, effectiveness, and autonomy . I will also examine some Fullerian criticisms against Razian conceptions based on the theoretical distinction between the two by extracting their ‘institutional’ and ‘horizontal’ features . After examining limitations of Fullerian schemes, mainly focusing on the issue of responsibility in officials with limited rationality, I will argue that the Razian conception of the rule of law provides the perspective that explains a certain type of officials’ misrule as being positioned within a legal system, thereby leading them to recognize their role responsibility . Keywords:

rule of law, legal positivism, J . Raz, H . L . A . Hart, official’s obligation to obey,

misrule Introduction

It is common knowledge that people do not generally agree on how to use the term ‘the rule of law’ . However, there are certain common understandings in terms of the principles of the rule of law in modern jurisprudence . One of the principles is the ‘upheld by officials’ desideratum’ .1 It was defined by Raz (in the third principle) and Fuller (in the eighth principle) as providing the requirement to regulate particular law-applications by administrative, as well as judicial officials . In this article, I will focus on this ‘particularistic dimension of the rule of law’ in a positivist view . In a sense, the ideal of I would like to thank Susumu Morimura, Takayuki Kira, and the editor for advice on matters of content and the style of English used in this article . 1 John Gardner, On the Supposed Formality of the Rule of Law, in: Law as a Leap of Faith: Essays on Law in General, 2009, 210

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the rule of law requires officials to apply the law for a legal system to efficiently function, regardless of whether its application is good or bad . At the same time, there seems to be confrontation regarding interpretation of the rule of law between Razian conception and Fullerian, or non-positivist, conception . My purpose is to examine the theoretical distinction between the two by extracting their ‘institutional’ and ‘horizontal’ features, and to confirm that the positivist rule of law provides a perspective that identifies a certain type of officials’ misrule in a legal system . This type of misrule is seen in the Nuremberg Defense; officials’ ‘I did what I was ordered’ excuse . The discussion first analyses the principle of the rule of law proposed by Raz . Then, after examining some criticisms of Razian conception and their limitations, I will argue that Razian conception of the rule of law provides a realistic perspective about misrule, based on an effective institutional legal system . 1.

Razian Institutional Model

Let me start with the well-known Fullerian rule of law . Fuller’s principles of the rule of law cover not only requirements to a legislator, but also the way judicial applications and administration of law should be performed . In his last principle, he postulated, ‘there should be congruence between the laws as announced and their actual administration’ .2 In his view, law is ‘the enterprise of subjecting human conduct to the governance of rules’3 and as such, failure of congruence results in something that is ‘not properly called a legal system’ .4 Similarly in the principle itself, but contrary to Fullerian understanding of a legal system, Raz shows his idea of the rule of law through what he calls ‘the tautology’ . The tautology is as follows; the ideal of the rule of law is that the government shall be ruled by the law and is subject to it, but actions not authorized by law cannot be regarded as actions of the government; therefore, the rule of law is an empty idea .5 The basis of the solution to this riddle is the difference between the professional and lay sense of ‘law’ . For the lawyer anything is the law if it meets the conditions of validity laid down in the system’s rules of recognition or in other rules of the system .[note omitted][…] To the layman the law consists only of a subclass of these . To him the law is essentially a set of open, general, and relatively stable laws .6

2 3 4 5 6

Lon Fuller, The Morality of Law, 1964, 81 Fuller (footnote 2), 106 Fuller (footnote 2), 39 Joseph Raz, The Authority of Law, 2nd ed ., 2009, 213 Raz (footnote 5), 213

A Particularistic Dimension of the Rule of Law

While layman cognition is normally limited to general laws, a legal system needs both general and particular laws to carry out its function . Presupposing this gap, Raz claims that ‘the rule of law’ will not be empty if ‘law’ here means ‘a general, open, and relatively stable law’ that governs particular orders . This solution saves the meaningful political ideal of the rule of law, leading to the formulation of the third principle of the rule of law as follows: ‘The making of particular laws should be guided by open and relatively stable general rules’ .7 I focused on this third principle because it presupposes particular situations where officials implement laws backed up by a legal system . In this context, two different aspects of a legal system are indicated: validity and effectiveness . For a legal system to be valid, officials must have a duty to recognize laws .8 It is similar to the Hartian model of chains of validity, which virtually takes a hierarchical form . 9 On the other hand, to be an effective system, the law has to guide actions of its subjects to be obeyed . The latter concept was extracted from the basic idea of the rule of law . ‘If the law is to be obeyed, it must be capable of guiding the behaviour of its subjects’ .10 This action-guiding function is also a rationale for why Raz attributes the identification of a legal system to law-applying organs . 11 Raz explains that making of particular orders (by law-applying officials) is among ‘the more ephemeral parts of the law’, that runs counter to the basic idea of the rule of law .12 An additional factor that makes Razian rule of law seem complex is its combination of axes: One axis is a virtue of an efficient legal system and the other axis is the political idea of individual freedom .13 Raz claims the virtue of a legal system as nothing more than functioning efficiently,14 while he simultaneously gives grounds as to why deliberate disregard for the rule of law disrespect for people’s autonomy and therefore violates dignity .15 For example, he mentions actions that violate human dignity including arbitrary use of laws and applying retroactive laws .

Raz (footnote 5), 213; 215 A rule of recognition is understood as a duty-imposing norm . Raz, (footnote 5), 92–93; Joseph Raz, The Concept of a Legal System, 1975, 199 . 9 While Raz criticizes the Kelzenite model of validity, which is eventually proved by a basic norm ( Joseph Raz, The Concept of a Legal System, 1975, 138–140), he partly accepts the concept of a rule of recognition suggested by H . L . A . Hart . However, his deviation from Hart is clear in the point separating the question of identity of a legal system from a validity chain of legal system based on single rule of recognition (Raz, ibid ., 197–200) . In his legal system theory, various kinds of officials are institutionally obliged to recognize laws according to rules of recognition and other rules, and as such, identify their memberships of a legal system . Raz, ibid ., 200; Joseph Raz, Practical Reason and Norms, 2nd ed ., 1985, 134–137 . For this reason I prefer to describe the Razian model of a legal system as ‘institutional’ or ‘hierarchical’ as opposed to ‘pyramidal’ or ‘vertical’ . See footnote 35 below . 10 Raz (footnote 5), 213 11 Raz (footnote 5), 88–89 12 Raz (footnote 5), 216 13 For this point, see Nick W . Barber, Must Legalistic Conceptions of the Rule of Law Have a Social Dimension? Ratio Juris 17 (2004), 474–488 . 14 Raz (footnote 5), 226 15 Raz (footnote 5), 221–222 7 8

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Hence, Raz’s third principle has three aspects: (1) a validity that indicates the institutional nature of officials’ imposed duty to recognize the law they apply, (2) the virtue of efficiency that is required for a legal system to perform its job effectively, and (3) autonomy of subjects that can be violated if the legal system fails to treat humans as persons capable of planning and plotting their future .16 Note that the last moral concern, no matter how important, does not mean that principles of the rule of law are ‘substantial’ or incorporate any kind of moral value . Raz clearly states that both principles are ‘formal’ and admits that he does not discuss equality or justice .17 Despite his avowal, Raz’s principles may seem to be ‘strangely substantial’, in terms of why the law should be prospective and the courts should be easily accessible .18 Although there have been attempts to include social elements in the rule of law, Razian conception of the rule of law does not conform with such interpretation and should be understood as requirements to enable laws to work efficiently .19 Therefore, it is better to describe his conception as ‘thin’ .20 There are reasons to support a thin conception of the rule of law from several points of view . As Raz by himself states that incorporating too many social values on the ‘altar’ of the rule of law may make the law barren and empty .21 In embracing a legal positivism, Gardner refines that the rule of law takes the shape that it is best for qua rule, and the purposes of law are regulated by external, not internal, morality .22 Also, if we attempt to fully meet all requirements of the rule of law as moral values, it may result in conflict with the requirements of fundamental rights, which sometimes avoid the application of established statutes or precedents for achieving appropriate solutions .23 These are some of the reasons not to regard the rule of law in a moral manner . 2.

Horizontal Arguments

Such a positivist rule of law is criticized from several aspects . (a) Razian rule of law is narrow to concern only the abuses of law while some legal philosophers propose that the rule of law concerns all abuses of power (narrowness) . (b) It lacks a moment of reciprocity or mutuality which invokes the moral responsibility officials and citizens bear . Namely, there is no ‘reflectivity’ in Postema’s wording (lack of mutual responsibility) .

Raz (footnote 5), 221 Raz (footnote 5), 216 Barber (footnote 13), 478 Raz (footnote 5), 223 For reasons to avoid describing it as ‘formal’, see Gardner (footnote 1), 154–158 . Raz (footnote 5), 229 Gardner (footnote 1), 210–211 Yasuo Hasebe and Cesare Pinelli, Constitutions, ed . Mark Tushnet / Thomas Fleiner / Cheryl Saunders, in: Routledge Handbook of Constitutional Law, 2013, sec .1 .4 16 17 18 19 20 21 22 23

A Particularistic Dimension of the Rule of Law

(c) The legal subject under Razian conception can do little other than the lawgiver’s bidding (submissive or ‘casual’ subject) . In the paragraphs below, I will examine these criticisms by referring to opposing arguments, such as those by Postema and Fullerians . 2.1

‘Narrowness’

Firstly, one criticism against Razian rule of law is its ‘narrowness’ of scope . Some argued this point24 by claiming that Raz believes that the rule of law concerns only the abuses of law .25 Thus, Postema argues that the rule of law sets its face against all abuses of power in the polity .26 For him, the rule of law refers to a principle of governance in which all persons and public and private institutions and entities, including the State itself, are accountable to laws .27 In addition to defining a distinctive mode of exercising political power, it defines a distinctive social ordering .28 However, Raz’s statement that the rule of law concerns only the abuses of law does not necessarily reflect a narrow scope because his concept of abuse of law seems wider than the critics point out . According to his text, the varied relevant agents who are subject to Razian principles include legislators, ‘the courts’, ‘crime-preventing agencies’, such as ‘the police and the prosecuting authorities’, and administrative agencies that are like ‘licensing authorities’ .29 Also, Raz admits that the stability requirement of the rule of law can be concerned with the exercise of private power, though it is not a primary concern .30 These examples cover wide aspects of the exercise of power . Moreover, according to his legal system theory, the criteria of identity and membership in a legal system depend on ‘primary law-applying organs’, which include mainly courts and tribunals, but also other public officials, such as policemen .31 Their determination is binding even though it is wrong .32 It implies that various kinds of public actions situate the Razian institutional legal system and are therefore subject to the third principle of the rule of law . Thus, if we understand Razian rule of law within the basis of his legal system theory, we would see that many public actions could have a position in the legal system . The

Jeremy Waldron, The Concept and the Rule of Law, Georgia Law Review (2008) 11; Gerald J . Postema, Law’s Rule, ed . Xiaobo Zhai / Michael Quinn, in: Bentham’s Theory of Law and Public Opinion, 2014, 11 25 Raz (footnote 5), 224 26 Postema (footnote 24), 11–12 27 Ibid . 28 Postema (footnote 24), 12 29 Postema (footnote 24), 214–218 30 Raz (footnote 5), 215 31 For the explanation of ‘primary law-applying organs’ see, for example, Raz (footnote 9), 136 . 32 Raz (footnote 9), 136 24

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scope of Razian rule of law is not narrow but can be interpreted as distinctively treating particular public actions . 2.2

Lack of Mutual Responsibility

There are two typical interpretations of the rule of law: positivist conception and non-positivist conception, or ‘institutional (in a hierarchical form)’ and ‘horizontal’ . To be precise, ‘hierarchical’ ordering is not a necessary structure of a positivist legal system, but it is described as a matter of fact of conventional ranking, such as the relationship between precedent and legislation .33 At the same time, in the explanation of authority, Raz admits that imposition of duty on the subject normally forms the ‘hierarchical relationship’ .34 Therefore, with certain reservations35, it can be described as ‘hierarchical’ as far as we focus on officials who have the duty to administer/apply laws . On the other hand, in the non-positivist view, legal positivists lack horizontal elements by concentrating on ‘managerial direction’, as Fuller describes .36 They lack the notion of responsibility or moral duty, as in Hart’s account that government seems to have no obligation to the citizens except for ‘the germ of justice’ in the way it makes and administers law .37 A similar notion of ‘horizon’ can be seen in Postema’s theory . In his ‘Law’s Rule’, Postema elaborates on the idea that the law must not only be a tool that public officials use to manage the community, but also rule those who propose to rule with it; this is called ‘reflectivity’ .38 He includes not only that laws apply to those who exercise political power, but also that those who fall are subject to the law, which is an idea at the core of the rule of law .39 Advocacy of arguments for ‘mutual accountability’ is based in criticism of the Hobbesian model of subjection and support of the Kantian model of accountability . According to Postema, one party might be subject to another party without the other

H . L . A . Hart, The Concept of Law, 3rd ed ., 2012, 101; Andrei Marmor, Legal Conventionalism, ed . by Jules L . Coleman, in: Hart’s Postscript, 2001, 212 . 34 Joseph Raz, Between Authority and Interpretation, 2009, 165 . For the applicability of his account of general authority to inter-official authority, see Joseph Raz, Comments and Responses, ed . Lukas H . Meyer / Stanley L . Paulson / Thomas W . Pogge, in: Rights, Culture and the Law, 2006, 262 . 35 Raz himself does not describe his legal system as ‘hierarchical’, and this term can be misleading in respect to his modification of the Kesenite pyramidal model as well as his criticism of Austin’s vertical hierarchy ( Joseph Raz, The Concept of a Legal System, 1975, 99, n 18) . It should be emphasized that his legal theory simply does not imply a unilinear model but rather a model of ‘intricate webs of interconnected laws’ without either a supreme legislator or a highest norm . Ibid ., 183 . 36 Fuller (footnote 2), 207 37 Hart (footnote 33), 215 38 Postema (footnote 24), 23–24 39 Postema (footnote 24), 26 33

A Particularistic Dimension of the Rule of Law

being reciprocally accountable to them, so accountability relationships can be linked in a transitive but non-reflexive chain .40 Any chain of accountability relationships must end with an unaccountable accountability-holder, but it will lead to a regression of accountability or incoherence because the notion of an unaccountable accountability holder is a contradiction in terms .41 In order to avoid this absurd result, Postema rejects Hobbes’s implicit ‘Hierarchy Thesis’: the view that to be subject to another party is to be subordinate to that party, and hence, accountability relationships are necessarily transitive and non-reflexive . Thus, Postema supports the modified version of Kant’s Thesis: ‘If the rule of law is to be conceptually possible, accountability must be at least mutual’ . Subjects and officials of all ranks must submit to and participate in ‘accountability loops or accountability networks’ .42 In this network of mutual accountability, courts play an essential role, but are only one ‘node of a healthy network of accountability’ .43 The Greensboro Massacre in 1979 is an example of Postema’s idea . In this incident, five demonstrators were killed and ten severely injured when they were attacked by members of the Ku Klux Klan and the American Nazi Party during a demonstration by the Communist Workers’ Party . In subsequent trials, all Klan and Nazi defendants were acquitted through verdicts made by all white, male juries . However, after twenty-five years, a group of citizens established a truth commission and eventually exposed the misbehaviour of the city police department, city government, and the criminal and civil justice systems . According to Postema’s observation, this citizen-initiated, privately funded effort illustrates ‘a community’s sense of responsibility to hold officials accountable’ .44 Another implication of the idea of mutual accountability or reciprocity found in the rule of law is a justification of moral condemnation . Murphy finds a conditional, non-instrumental value in the rule of law reflected in how a legal system structures political relationships . When the requirements of the rule of law are respected, the political relationships structured by the legal system constitutively express the moral values of reciprocity and respect for autonomy .45 Murphy tries to apply the Fullerian scheme to Argentina military rule from 1976 to 1983, where the government officials kidnapped citizens and 30,000 individuals disappeared . He points out that the Fullerian analysis provides ‘an additional’ and ‘new’ insight into the reason to justify the moral condemnation of such wrongdoing .46 Needless to say, it is wrong to violate an individual’s rights, but the Fullerian scheme draws additional attention to ‘the impact that state-sanctioned atrocities can have upon the institutional functioning of the legal 40 41 42 43 44 45 46

Postema (footnote 24), 27 Postema (footnote 24), 26 Postema (footnote 24), 29 Postema (footnote 24), 30 Postema (footnote 24), 31 Colleen Murphy, Lon Fuller and the Moral Value of the Rule of Law, Law and Philosophy 24 (2004), 239 Murphy (footnote 45), 245

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system, and on the relationships between officials and citizens structured by that institution’ .47 Consequently, Murphy observes that such violations of the rule of law eroded the trust of citizens and alienated them from the judicial system and law-enforcement officials . It also explains citizens’ anger and resentment when government officials violate the rule of law . What we learn from Fuller, according to Murphy, is that ‘this distrust is a product of the absence of reciprocity in the most fundamental political relationships between citizens and government officials’ .48 Following the line of this Fullerian idea of reciprocity, Murphy is not satisfied with the Razian account because, in the Razian view, reciprocity and duties undermined by the violations of the rule of law are ‘morally insignificant’ .49 2.3

Submissive Subject or Fullerian Model of Responsible Agent

The tendency of legal positivists’ indifference to the moral value is criticized in various ways and is known as ‘casual positivism’ .50 One of the presuppositions of the criticism is based on one’s understanding of a moral agent . Fuller observes the demand that legal morality cannot be neutral in the view of man himself . He clarifies his stance, stating that it involves ‘a commitment to the view that man is a responsible agent, capable of understanding and following rules, and answerable for his defaults’ .51

This is contrary to the view of Hart, who admits in his theory of legal systems the possibility that citizens may not take an internal point of view in an extreme case, and obey in a ‘deplorably sheeplike’ manner .52 It seems that subjects under the positivist conception are indeed ‘submissive’ in this sense . Following the view on responsible agents in the Fullerian internal morality of law, Rundle also presupposes that subjects interact in a legal system as autonomous citizens . She observes, ‘[f]or positivists, it seems, the lawgiver can do as he likes, while the legal subject can presumably do little other than the lawgiver’s bidding’ .53

47 48 49 50 51 52 53

Murphy (footnote 45), 244–245 Murphy (footnote 45), 245 Murphy (footnote 45), 249 Waldron (footnote 24), 14–19 Fuller (footnote 2), 162 Hart (footnote 33), 117 Kristen Rundle, Forms Liberate, 2012, 129

A Particularistic Dimension of the Rule of Law

3.

Limitations of the Horizontal Dimension

The aforementioned ‘mutual responsibility’ theory can be interpreted as certain ethically committed positions . First, when people argue in support of the moral value of the rule of law, they may use a hypothesis of mutual relationships theory to explain unjust social phenomenon . Indeed, reciprocity may be a political relationship between officials and citizens . However, it is not established as ‘the most fundamental’ political relationship between them as Murphy claims . Hierarchy may also be fundamental in recognizing the relationship with authority . In addition, the degree to realize the rule of law is not all-or-nothing . The institutional model which includes hierarchies has merit in distinguishing a particular misrule from a malfunction of the legal system as a whole . Thus, to explain the moral value of the rule of law from the perspective of reciprocity does not establish primacy against the explanation of the hierarchical Razian rule of law . On the other hand, Fullerians may explicitly or non-explicitly commit to a position, which aims to motivate moral acts by endorsing the non-instrumental value of the rule of law . This aspiration is reflected over the notion of ‘a responsible agent’ who is ‘answerable for his defaults’ . This view of human being was the other point that parted company with the Razian view as we saw above, and I will not argue the superiority of a non-ideal theory against another . It is enough to compare and identify the unsatisfactory aspects of the Fullerian scheme; even ‘a responsible agent’ in the Fullerian sense is nothing but an agent with limited rationality, subject to inevitable bias, prejudice, and emotion . In Fullerian examples of amoral conduct by officials, the misrule of governmental institutions – officials who followed military rule in Argentina or juries and prosecutors in Greensboro who returned a verdict of not guilty to assailants – cannot be analysed by the Fullerian scheme while it can be the object to blame . It is surely important to justify why be moral based on the view of a responsible agent, but at the same time, how to be moral should also matter . Therefore, we will next examine whether Razian conception, unlike Fullerian conception, contributes to the analysis of this how to be moral question . In the next section, I will argue that it provides certain awareness of each official who plays a crucial role in a legal system and is ruled under the law . 4.

A Particularistic Dimension of the Rule of Law: A Positivist View of Misrule

4.1 General Rule vs. Particular Judgement

Both the third principle of Raz and the eighth principle of Fuller stipulate that an official’s particular act should be followed by general rules . However, it is not always the case that a particular judgement can be automatically deduced from a general law, nor is obeying a general rule desirable . For example, officials may not administer a statute

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that is declared unconstitutional by the court before the statute is amended by legislators . This conflict between generality and particularity can be formulated as the issue of discretion of officials . Indeed, some schools of thought, such as rule sceptics and CLS, criticized the rule of law itself by claiming that it disguises the arbitrariness of law-applying judges . However, there are several reasons why I regard this particular law-application as ‘the particularistic dimension’ separated from, but related to, the concept of the rule of law . First, since the ideal of the rule of law has been presupposed on the elimination of the rule of man as its historical background, the rule of law in the general sense is not suitable for analysing subtle issues in respect to de facto officials’ control . Second, the rule of law in the general sense is not only a controversial concept but also used ambiguously even among juristic scholars and as a political slogan . 54 Though I follow the use of jurisprudence, I would avoid using it as a basis for analysis . Thus, I think that to examine the issues of de facto human control without the controversy of this concept, focusing on the particularistic dimension of the rule of law will provide more precise understanding . Then, in order to consider this issue of officials under the particular rule of law, what are the merits of the Razian conception comparing them in respect to their horizontal and hierarchical character? A typical and critical problem which the Fullerian scheme does not explain is the so-called Nuremberg Defense, whose issue is partly shared with the Tokyo Trial; ‘I just did as I was ordered’ excuse . It has been the object of cross-disciplinary study in social sciences, as well as in humanities (though legal philosophy does not seem to passionately join) . The results of studies show that the agent who performs amoral actions can actually be against his own utility and behave rationally in the short term and irrationally in the long term .55 A subject of the Milligram experiment might be normal, but with limited rationality to perform a cruel act . Also, the example of Fullerians shows that officials who conducted amoral acts were following orders in the chain of the system, acting in an organized way . The Greensboro injustice shows that juries and prosecutors are biased and, most importantly, are facilitated by the legal systems in force at the time .56 These facts are what a legal positivist can observe in a realistic way .

For example, it becomes promiscuously and redundant when used as a synonym for ‘constitutionalism’ as it is often used by Japanese constitutional lawyers (Yasuo Hasebe, The Rule of Law and Its Predicament, Ratio Juris 17 (2004), 399) . 55 For the economic analysis of the Milligram experiment, see George Akerlof, Procrastination and Obedience, The American Economic Review 81 (1991), 8–9 . 56 Injustice in the Justice System, Greensboro Truth and Reconciliation Commission Final Report: 311 (available at http://www .greensborotrc .org/post1979_justice .pdf) 54

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4.2

Situating in Hartian Line: shift from ‘iniquitous laws’ to ‘misrule’

We can see in more detail how positivists can analyse such misrule by referring to Hart’s guidelines to find merits of the positivist concept of law . Though admitting that his relevant text is confusing,57 in the chapter on Laws and Morals in The Concept of Law, Hart gave reasons why a wider concept of law is preferable by explaining the comparative merits of taking a wider and narrower concept . In terms of theoretical merit, we can study the use of law, as well as study its abuse, if we take a wider concept of law .58 On the other hand, the practical merits can be divided into two: (1) the merit of making men ‘readier to disobey’ .59 However, this is an insufficient argument because Hart did not provide any empirical or theoretical evidence, and (2) he also claims the merit ‘not to oversimplify the moral issues to which iniquitous laws give rise’ .60 This claim does not seem to be sound, and his premises should be modified according to our concern . Here, Hart presupposed particular social concern, ‘the Grudge Informer Case’ debated with Fuller . It is a well-known case where a wife had denounced her husband for an offence against a Nazi Statute of 1934 that mandated the public to turn over informers, and he was convicted after WWII . The legal philosophers’ issue was whether to punish those who did evil things when they were permitted by evil rules . Hart’s argument may have a valid point as far as presupposing this special context . It is, however, still an over-generalization to derive a practical merit to have a positivist concept of law on the premises of this special legal matter . What Hart claimed here is nothing more than the merit of the wider positivist concept only in the case where iniquitous laws give rise to the moral issues; where ‘wicked men will enact wicked rules which others will enforce’ .61 Surely, both the law prescribing the public to turn over informers and those who abuse such laws must be wicked . However, in our present democratic society (I presuppose a particular Japanese society), it is not a normal situation to generally assert that legislators and rules legitimately passed by them are ‘wicked’ . The particular problem we may face will be rather observed in the situation; where ‘even good men can enact good rules that others will misrule’ .

A scholar who interprets Hart favourably, like Leslie Green, thinks that the relevant sentence describes the most ‘productive of confusion’ in Hart’s oeuvre (Leslie Green, The Morality in Law, ed . Luís Duarte d’Almeida / James Edwards / Andrea Dolcetti, in: Reading HLA Hart’s ‘The Concept of Law’, 2013, 206) . It was ‘a very special context’ the discussion involves here . The special context must be what Hart refers to as the ‘pathology’ of a legal system, which invites the problem of legality including the issue that sovereignty has changed (Hart, footnote 32, 208) . 58 Hart (footnote 33), 210 59 Ibid 60 Hart (footnote 33), 211 61 Hart (footnote 33), 210, emphasis added 57

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By replacing the premise from an iniquitous law with misrule partly due to the shift of our concern in society, we support the merit of the positivist concept Hart himself failed to establish in his text; not to oversimplify the rise of various moral issues of the particular administration by officials who are under the rule of law . 4.3

Implication of Positivist Conception of the Rule of Law

Thus, following the Hartian line, we can also find practical merit in adopting the positivist notion of the rule of law and avoid oversimplifying the moral issue . The Fullerian scheme has an unsatisfactory view of the incapacitated responsible agent, because the attribution of responsibility is too general to pursue the relevant responsibility . When we talk about responsibility in institutions, there are free-riding problems and displacement of responsibility resulting in impossible attributions . We can identify this matter as ‘moral disengagement’, which is a psychological term that refers to a type of displacement and diffusion of one’s responsibility .62 The Razian conception will shed light on these aspects . If we admit that moral disengagement is partly supported by mazy social systems, which allow diffusion of responsibility (‘I was not in a position to decide’)63, we will also admit that the structure of the Razian legal system will clarify their role and responsibility . Since the Razian legal system is explained as a well-defined institution that situates each official to belong to the interconnected system, this system does not obscure officials’ position and responsibility . Additionally, according to the Razian conception of legitimate authority, although a higher law or functionary claims authority to a lower official hierarchically, one does not have the general duty to obey the directive . The law-applying official judges by himself whether the directive is justified in an unusual moral situation .64 Now, we can understand that the particularistic dimension of the Razian rule of law can also be analysed from the three aspects we identified above . Based on the Razian valid legal system, each official is identified as an authorized organ and as constituting that legal system . This explanation can provides awareness of officials’ responsibility stemming from their roles in affecting the subject . At the same time, from the view of effectiveness, the third principle of the rule of law requires each official to conform to general laws, which implies that doing so is respecting the subject’s autonomy . It has been noted, however, that their conformity is neither necessarily desirable nor morally good in the positivist view . When applying the directive is detrimental, the positivist view does not hide the moral quandary; although a general rule or a higher functionary Albert Bandura, Moral Disengagement: How People Do Harm and Live with Themselves, 2015, ch .3 Ibid ., 103 For this ‘piecemeal’ approach to legitimate authority and his denial of the general obligation to obey the law, see Joseph Raz, Morality of Freedom, 1986, 80; Raz (footnote 5), ch .9 . 62 63 64

A Particularistic Dimension of the Rule of Law

claims to obey their directives, it is the law-applying official who decides to accept the directive with recognition of his action as a part of a legal system . This particularistic view of the rule of law can be a measure of how to cope with ‘I just did as I was ordered’ excuse . It may raise another complicated, normative issue, such as a conflict between the official’s duty to obey the law and their conscience . However, it is enough here to point out that the Razian conception of the rule of law provides a systematic basis for analysing the responsibility of an official who rules, and is ruled under a legal system . Conclusion

I have analysed the principle of the rule of law proposed by Raz and identified that his third principle had three aspects: validity, effectiveness, and autonomy . Then, after examining some criticisms against Razian conception and their limitations, I have argued that the Razian conception of the rule of law provided the perspective to official’s particular misrule as being positioned within an institutional legal system, thus recognizing their role responsibility .

It seems legal philosophy does not necessarily engage only with an iniquitous law or obvious unjust abuse of power that Fullerians tend to invoke . Evil laws, and the issue of an obligation to obey, have been major topics among modern legal philosophers after WWII and the 1970s . However, as the area of administrative service expands in society, and not only officials but also private citizens are conferred power in the judicial division, or where a person has official power to abuse, we need to pay attention to various kinds of human error/misrule within the legal system . As in Raz’s observation, the law can violate people’s dignity in many ways . I did not distinguish each public action by its position in a legal system . Surely, various kinds of actions and professional obligations should be distinguished by their institutional nature, such as legislators, lawyers, and private citizens, which also seems to be an important task for a legal system theory to contribute . This article solely tried to establish a perspective toward particularistic misrule for further clarification of officials’ responsibilities . Kumie Hattori Waseda University, School of Law, 1–104 Totsukamachi, Shinjuku-ku, Tokyo, 169–8050, JAPAN, kumie@toki .waseda .jp

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2012. 99 S., kt. ISBN 978-3-515-10136-3 Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September 2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6 Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011 2012. 173 S., kt. ISBN 978-3-515-10328-2 Winfried Brugger / Stephan Kirste (Hg.) Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 2013. 267 S., kt. ISBN 978-3-515-10440-1 Philippe Avramov / Mike Bacher / Paolo Becchi / Bénédict Winiger (Hg.)

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et de Philosophie Sociale, 12–13 septembre 2014 2016. 153 S. mit 2 Tab., kt. ISBN 978-3-515-11387-8 Markus Abraham / Till Zimmermann / Sabrina Zucca-Soest (Hg.) Vorbedingungen des Rechts Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg 2016. 231 S., kt. ISBN 978-3-515-11389-2 André Ferreira Leite de Paula / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas (Hg.) Truth and Objectivity in Law and Morals II Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D.C., 2015 2016. 210 S. mit 4 Abb., kt. ISBN 978-3-515-11484-4 Kosuke Nasu (Hg.) Insights about the Nature of Law from History The 11th Kobe Lecture, 2014 2017. 146 S., kt. ISBN 978-3-515-11570-4 Jochen Bung / Armin Engländer (Hg.) Souveränität, Transstaatlichkeit und Weltverfassung Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau 2017. 133 S., kt. ISBN 978-3-515-11620-6 Bénédict Winiger / Matthias Mahlmann / Sophie Clément / Anne Kühler (Hg.) La propriété et ses limites / Das Eigentum und seine Grenzen Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 26 septembre 2015, Université de Genève / Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 26. September 2015, Universität Genf 2017. 274 S., kt. ISBN 978-3-515-11688-6 Gralf-Peter Calliess / Lorenz Kähler (Hg.) Theorien im Recht – Theorien über das Recht

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The most fundamental topics for philosophy of law in modern societies include the rule of law and democracy. It is widely accepted that both are important for good governance, but the concepts are often elusive. The rule of law and democracy sometimes compete with each other depending on their conceptions. A variety of arguments have been suggested for explaining and justifying them, but none is conclusive. It is important to give a better understanding of both conceptions and to combine them. This book contains the 12th Kobe Lecture “Fuller’s Relationships” delivered by Kristen Rundle, another main lecture “The Borders of Law” delivered by Tetsu Sakurai, and the selected articles related with the rule of law and democracy that were originally presented at the 1st IVR Japan International Conference at Doshisha University (Kyoto, Japan) in 2018.

ISBN 978-3-515-12482-9

www.steiner-verlag.de Franz Steiner Verlag