documento para el ciclo _seis autores

SSoocciieeddaadd ddee AAnnáálliissiiss

JJuurrííddiiccoo

SEIS AUTORES

CLAVE EN

TEORÍA GENERAL

DEL DERECHO

WALDRON | PASHUKANIS | MARMOR

SHAPIRO | FERRAJOLI | SCHAUER

TEXTOS SELECCIONADOS PARA EL

CICLO DE SESIONES MENSUALES

2013

IÍNDICE

Luigi Ferrajoli Principia Iuris (secciones 13.1 a 13.3: Democracia formal y sustancial)

Andrei Marmor El textualismo en contexto

Evgeny Pašukanis Mercancía y sujeto

Jeremy Waldron Derecho y Desacuerdo (Capítulo introductorio)

Duncan Kennedy Sicología de la ideología de las decisiones judiciales

Frederick Schauer Positivismo antes de Hart

Luigi Ferrajoli

Principia Iuris (secciones 13.1 a 13.3: Democracia formal y sustancial)

Andrei Marmor

El textualismo en contexto

Legal Studies Working Paper Series Año 2012- Paper 90

http://law.bepress.com/usclwps-lss/90

University of Southern California LawSchool

Legal Studies Working Paper Series

Year Paper

Textualism in Context

Andrei Marmor∗

∗[email protected] working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commer-cially reproduced without the permission of the copyright holder.


Copyright c©2012 by the author.


Andrei Marmor

Abstract

The main purpose of this essay is to show that the views about linguistic com-munication that make Textualism a plausible theory of what the law says, showwhy textualism is not nearly as helpful a theory of statutory interpretation as itsproponents claim. The essay begins with a brief outline of what Textualism is, inlight of its critique of Intentionalism and Purposivism; it then proceeds to explainthe view of language, particularly asserted linguistic content, that is required tomake sense of Textualism, and defends this view against a neo-Gricean critique;finally, the paper strives to show why those same ideas about determinants of com-municated content help us to see that Textualism has very little to offer by way ofa general theory of statutory interpretation.

Draft/ July 2012


Andrei Marmor

I agree with Professor Manning that three main theories of statutory interpreta-tion compete for dominance in U.S. federal courts: textualism, intentionalism and purposivism.1 And I agree with him that it is difficult to get a sense of what textualism is all about without paying attention to the ways in which it forms a critique of the other two doctrines and aims to replace them. Manning is a tex-tualist and I am not. My aim in this essay is to show why nobody should be – which is not to deny that textualism brings to the debate over statutory inter-pretation some important insights. It certainly does, and some of them need to be taken seriously. However, those sound insights do not lead to the conclu-sions textualists argue for and, as a whole, textualism is not nearly as helpful a theory of statutory interpretation as its proponents claim.

Any theory about statutory interpretation is partly normative and partly descriptive. A theory of statutory interpretation aims to answer the question of how judges should go about trying to resolve an interpretative question they encounter about statutory law. As such, the theory must be guided by some views about the role of the judiciary vis-à-vis the legislature in determining what the law is. Justice Scalia is very clear about this point when he says that “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.”2 Two ideas are suggest-ed in this statement: The first, which is quite sound, is that the starting point for a theory of statutory interpretation is normative, mostly about the appropri-ate allocation of power between the legislature and the judiciary in a democratic or, generally, a fair regime. However, there is also a second suggestion here – namely, that we face a genuine choice between two options: Either try to figure out what the lawgiver meant, or else comply with what the lawgiver promulgat-ed. This is a spurious choice, I will argue. In most cases, and certainly in most cases that matter, there is no such interpretative choice to make.

The argument of this essay proceeds in three stages. First, I will briefly outline what textualism is in light of its critique of purposivism and intentional-

1 J. Manning, “What Divides Textualists from Purposivists?” 2 A. Scalia, A Matter of Interpretation, 17.

Hosted by The Berkeley Electronic Press

2

ism. Second, I will try to explain the view of language and communication that is required to make sense of textualism, arguing that, at its core, textualism ac-tually assumes a very sensible view of what is said by the law. In the third part, however, I will try to show why those same ideas about linguistic communica-tion render textualism rather unhelpful as a theory of statutory interpretation.

1. Textualism as opposed to what?

It might be helpful to begin with a brief outline of the two main theories of statutory interpretation prevalent in U.S. federal courts, which textualism strives to replace – namely, intentionalism and purposivism. According to in-tentionalism, when judges face an interpretative question about statutory law, they should, first and foremost, strive to ascertain the actual intention of the legislature that bears on the issue at hand, and, if they manage to find out what that intention was, they must defer to it and decide the case accordingly. In other words, intentionalism urges judges to take the legislative history very se-riously and try to figure out the actual intentions and purposes that guided the relevant piece of legislation, striving to extrapolate an answer to the question they face from those intentions and purposes. No serious intentionalist would argue that there is always some relevant legislative intention to discover. Some-times, no doubt, knowing all the relevant legislative history, we will reach the conclusion that the legislature had no intentions or purposes that bear on the interpretative issue either way. The point that intentionalists make, however, is that when a particular legislative intention is ascertainable to a reasonable de-gree, judges should comply with it – that is, decide the case in a way that effec-tuates the relevant legislative intent.

There are three main and well-known objections to intentionalism, and textualists tend to flag those concerns. First, there is the normative question of why legislative intentions should matter at all. Why would it be legally relevant that the legislature intended to achieve X or promote Y in enacting a law, if that intention is not expressed in what the law says? Second, there are many who doubt that judges can figure out what the legislative intentions really were. In fact, some argue that the tools available for courts trying to figure out legislative intent are such that the courts are bound to yield skewed and biased results, mostly favoring the vocal supporters of a law who use strategic maneuvers to overemphasize their legislative agenda over of the views of the median legisla-


3

tors who formed the majority.3 Finally, there are those who raise serious con-cerns about the conceptual possibility of attributing intentions to a large and diverse group of people such as a legislature.

This is not the place to elaborate on these concerns and assess their plausibility. I will confine myself here to a few remarks. First, textualism would be ill advised to make too much of the last, skeptical point: If you doubt that it is possible to attribute some collective intentions to the legislature as a whole, you might get into trouble when you claim that judges should take very serious-ly what the law actually communicates as opposed to what you might think that the law aimed to achieve. Communication by legislation is a speech act and, like any other act, it is normally done intentionally. If legislatures cannot act with a collective intention, then enactment cannot be a speech act either. In other words, if you take the communicative aspect of lawmaking seriously, as textual-ism clearly does, you must allow for the possibility of collective intentionality, simply because legislation, on this view, must be viewed as a form of a collec-tive speech act.4

Indeed, I do not think that this point has entirely escaped textualists’ at-tention. Most of the skepticism they raise about intentionalism as a doctrine of statutory interpretation pertains to the first two points – namely, to the idea that in most cases there is any relevant legislative intent to discover, or that courts would have the requisite tools to discover what those intentions were, even if there was something to discover. And, perhaps first and foremost, the objection to intentionalism is a normative one: Textualists doubt that legislative intent is a legitimate source of law. The main argument is that intentions or purposes and the like are not what legislators vote on. The law, they claim, is what gets to be voted on by the legislators in the final passage of the bill. Therefore, the content that is democratically enacted is the content expressed by the bill that is voted on, not by the various intentions and motives that lay behind it.5

The second main doctrine of statutory interpretation that textualists ob-ject to is purposivism. This is not really one doctrine but a whole family of views – some made very influential by the Hart and Sacks legal process view, others by Ronald Dworkin – arguing that the task of statutory interpretation

3 See, for example, A. Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Inter-pretation; Rodriguez & Weingast, “The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation.” 4 On the idea of legislation as a speech act I have elaborated on in my “Truth in Law.” 5 See, for example, J. Waldron, Law and Disagreement, ch. 6.


4

should be seen as continuous with the legislative task of making the law in the first place or, at least, coherent with it.6 Roughly, the idea is this: When faced with an interpretative question about a statute, judges should ask themselves what the relevant purpose of the law is and how that general purpose can best be achieved by resolving the particular interpretative question one way or the other. And how do we know what the relevant purpose of the law is? Not by trying to figure out the actual intentions of the legislators, but by asking what a reasonable legislature would have reasonably wanted to achieve by enacting the piece of legislation that it did. In other words, all forms of purposivism are committed to the stipulation of some idealized conditions under which we conceive of the legislature and the purposes of its enactment. We derive the pu-tative purposes of the law from the facts concerning the circumstances that brought about the legislation, or the mischief it aimed to fix, and, crucially, from some normative assumptions about what a reasonable or morally ideal-ized legislature would have wanted to achieve under those conditions.

Needless to say, views may differ, as they do, about what makes a legisla-ture reasonable and its aims morally legitimate, and about how to determine such matters. I think that the Hart and Sacks view assumed that common sense and reasonably informed, perhaps enlightened and progressive, views about the world would normally suffice. Dworkin is much more elaborate on this issue, and much more explicit in articulating a liberal, moral political philosophy that, in his view, underlies the constructive model of interpretation he offers. All purposivists emphasize, however, that in attributing a purpose to a piece of leg-islation, it is not the actual purposes of the legislators that judges should try to discover, but the purposes or intentions of an idealized, partly normatively con-structed legislature.

More or less the same considerations that make purposivism attractive to its proponents make purposivism very suspicious to textualists. Two main kinds of considerations are contentious here. First, textualists object to the very idea that statutory interpretation by the courts ought to be seen as continuous with the process of making the law. The enactment of a law is a democratic process; the judicial interpretation of the law is not. The enactment of a law aims to achieve some policy goals; the judicial interpretation of a statute should have no such aims, as it is not the role of judges to enact new policies. And so on and so forth. Second, textualists seem to be very dubious about the possibil-ity of objectivity concerning the idealized legislative purposes. To quote Scalia again: “[Y]our best shot at figuring out what the legislature meant is to ask

6 See, for example, H. M. Hart & A. Sacks, The Legal Process, at 1374-81; L. Fuller, The Morality of Law; R. M. Dworkin, Law’s Empire.


5

yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean.”7 The emphasis, however, is not on the “ought,” where Scalia put it and where Dworkin, for example, would be happy to leave it; it is on the “you think,” meaning the particular judge who happens to adjudicate the case. In other words, purposivism according to textualism is nothing less than an invitation for judges to make the law as they see fit, as they think it ought to have been made. And that, according to textualists, is not a legitimate role for the judiciary in a democratic regime.

Needless to say, both of these concerns are serious and both deserve se-rious answers. I will not attempt to engage with these normative issues here, however, only to show, in the last section, that textualism faces exactly the same challenges, and that it is not less normatively contentious than purposiv-ism or any other theory of statutory interpretation. But first, we need to see what textualism offers and how it is supposed to work. If neither the actual in-tentions of legislators nor the putative reasonable purposes of the law are guides to statutory interpretation, what is left for judges to consider? The textu-alist answer consists in the idea that judges have to rely, first and foremost, on what the relevant statutory provision actually says. And what the law says or asserts is determined by what a reasonably informed person, knowing the rele-vant context and the relevant legal background, would infer from the words expressed by the statute in the context of its expression. In other words, we seek to grasp the meaning of the statutory text in the context of its expression, as that meaning would be grasped by a reasonable hearer aware of the legal and other background conditions of the legislation.8

2. What does the law say?

The starting point of textualism is, I believe, a very plausible thesis and, thus, before we explore the linguistic aspects of it, it may be worth putting that thesis up front. The main idea is that legislation is a speech act, an act of communica-tion, whereby the legislature, by voting on a bill, communicates a certain legal content, and that legal content is the content of the statutory law. It is im-portant to bear in mind that voting procedures in a democratic legislature are formal mechanisms that enable a large institution, often comprising hundreds of people, to make a collective, institutional speech act. It is an essential aspect 7 A Matter of Interpretation, 18. 8 See Scalia & Garner, Reading Law, 33; see also Manning, “What Divides Textualists from Purposivists?” 79-85.


6

of this procedure that voting on a proposed bill is a vote taken on a particular text; whatever bargaining or horse trading may have taken place before the final vote, there is in the end always a text, carefully worded, that members of the legislature get to vote up or down. And if the law passes, it is because most leg-islators voted for it. Voting procedures in a democratic institution are not meant to aggregate the subjective states of mind of the members of the institu-tion. Voting procedures are meant to generate an institutional decision. Partici-pants in such procedures often have many reservations about the resolution they vote for; it often does not reflect their subjective preferences. But when they vote for approving a certain resolution, they express the intention to communicate the content of the resolution as the official decision of the insti-tution in question. This is what voting on resolutions is, as a matter of social-institutional facts.9

Thus, textualism’s sensible starting point here is that the content actually communicated by a legislative speech act is the content of the statutory law: It is what the law is. And this raises two questions: What are the determinants of communicated content, and how helpful are those determinants in solving the kind of interpretative issues that courts need to decide? In order to get a clear answer to both questions, we must be more clear about the relevant kinds of content that speakers can convey by a speech act and how they would normally succeed.

There are at least three or four different kinds of content that we can look at when we try to grasp the meaning of an utterance.10 First, there is the semantic content of the expression, which is the kind of content that is fully de-termined by the lexical meaning of the words used and the syntactical structure of the sentence. Second, there is assertive content, which is the content that the speaker actually says or asserts by an occasion of speech in the context of its expression. This is normally the truth-evaluable proposition or propositional content that the speaker conveys by expressing the utterance in its particular

9 The idea that voting in a legislative assembly is a form of institutional decision making seems to have escaped Greenberg’s attention in his skepticism about legislative speech acts. Greenberg’s skeptical arguments about the communicative aspect of legislation rely on some familiar worries about potential differences between voters’ subjective intentions and elec-tion results, reminding us that voters often intend to convey different messages by casting their votes, not necessarily the intention to communicate their approval of the relevant reso-lution. (See his “Legislation as Communication? Legal Interpretation and the Study of Lin-guistic Communication.”) The point in the text above aims to clarify, if clarification is need-ed, that such worries are not relevant to the speech-act aspect of legislation as a form of in-stitutional decision making. 10 I have elaborated on these issues in greater detail in “The Pragmatics of Legal Language.”


7

context. Third, in some cases there might be content that is implicated, though not quite said, by the speaker in the context of speech, which is the kind of content that the speaker is committed to, in some sense, even though the speaker has not actually said it. Finally, there might be certain presuppositions that speakers rely on (and rely on the hearers to rely on), as some content that is taken for granted in the context of the conversation.

Now, when textualism urges us to look at the meaning of an expression in the context of its utterance, it is clear that what they have in mind is what we called the assertive content of the utterance. It is what the speaker actually says by uttering the expression in the particular context of the speech. And textual-ists are quite right to recognize that assertive content is often very context sen-sitive. First, the same sentence, with the same semantic content, can be used to express different propositions in different contexts (e.g., “this is Joseph’s book” can either refer to the book that belongs to Joseph, or the book written by Jo-seph; which one of these is being asserted by the speaker is something we would normally infer from the context of the expression). Second, there are many cases in which the speaker asserts something different from the semantic content of the expression used (e.g., a doctor in the emergency room telling a patient with a gunshot wound, “Don’t worry, you are not going to die.” The doctor is not promising the patient eternal life; she is just saying that this par-ticular wound is not life-threatening).11

The context sensitivity of assertive content is widely recognized. The rel-evant controversy here is about the exact determinants of assertive content. According a neo-Gricean view, articulated in this context by Stephen Neale, the content asserted by a speaker just is the content that the speaker intended to convey to the hearer by expressing the utterance in the particular context that she did.12 As Neale rightly observes, according to this subjective conception of assertive content, textualism turns out to be incoherent. Once we admit that the context of the expression partly determines what the speaker actually said or asserted – as textualism does – one must concede that context matters pre-cisely because it helps the hearer to figure out the relevant communication in-tentions of the speaker. Why else would it matter? But then, textualism can no longer deny that what the law actually says is what the legislators intended to say; on the contrary, by trying to ascertain what the law says, we inevitably try to grasp the communication intentions of those who enacted the law.

11 I have discussed all of this in my “Pragmatics of Legal Language.” 12 S. Neale, “Textualism with Intent.”


8

Textualism, however, seems quite explicit in rejecting this subjective conception of assertive context, and for good reasons. Any plausible concep-tion of how we characterize assertive content must make room for the possibil-ity that speakers do not necessarily succeed in conveying all that they intend to convey by their utterances; people can simply fail to say exactly what they wanted to say. Therefore, any plausible conception of assertive content must comprise some objective criteria of success. The assertive content of an utter-ance is determined by what a reasonable hearer, knowing the relevant conversa-tional background and context, would infer about the speaker’s communication intentions from the words or sentences uttered in that context. A purely subjec-tivist view about assertive content – namely, that it is fully determined by the communication intentions of the speaker – would entail that one can never be quite sure about what has been asserted by an utterance, since we can never be quite sure about what the speaker may have intended to convey. This sounds implausible. Any plausible conception of what assertive content is must make room for the possibility that a speaker can fail to assert by her utterance all that she intended to convey.13

To be sure, I am not suggesting that communication intentions are irrel-evant – far from it. Under normal circumstances, in an ordinary conversational context, we would try to grasp the communication intentions of the speaker by figuring out what is said. But again, speakers can fail to convey all that they in-tend to convey. The speaker’s intention, by itself, does not fully constitute what has been said or asserted. Therefore, it makes perfect sense to define the asser-tive content of an utterance in a given context by reference to what a reasona-ble hearer, sharing the relevant contextual background, would infer about the content of the utterance in the context of its expression. Furthermore, I think that textualists are quite right to assume that the relevant reasonable hearer, in the context of statutory interpretation, is an adequately informed legal hearer, so to speak – namely, one who is reasonably informed about all the back-ground legal landscape and the technicalities of legal jargon.14

Where does this leave the neo-Gricean critique? Neale is correct, I think, up to a point. He is correct to point out that there is a considerable exaggera-tion in the contrast textualism aims to emphasize between what the law says and what the lawmakers meant or intended to say. Since textualism admits that, in trying to figure out what the law says, we cannot be content with the seman-tic content of the relevant expression, and that we must be guided by various pragmatic factors in trying to determine the assertive content of the relevant

13 See my “Truth in Law.” 14 See Scalia and Manning, note 8 above.


9

legal provision, textualism has already conceded that the communication inten-tions of the lawmakers is what we aim to ascertain. No plausible theory of what communicated content is can simply dispense with communication intentions. A hearer who wants to grasp what the speaker says aims to grasp what the speaker intended to communicate; legal speech cannot be a kind of striking ex-ception. However, I do not think that textualism needs to deny this point. All it needs to say in response is that the main issue here is whether we rely on a purely subjective conception of assertive content, or on an objective concep-tion, which relies on some notion of a reasonable hearer as a determinant of the content asserted by the legislature. As long as textualism endorses the ob-jective view, which it clearly does, it is entitled to the conclusion that what the law says is not fully determined by what its enactors intended to say. What the law says is at least partly determined by what a reasonable hearer, knowing all the relevant background, would infer that it says. In other words, textualism can concede the idea that legal interpretation aims to ascertain the communica-tion intentions of the legislature, as long as it is granted that the relevant com-munication intentions are understood objectively – that is, as they would be grasped by a reasonable hearer.

3. How Helpful Textualism Is?

So far so good. Textualism tells us that statutory law consists in what the law says, what it actually asserts. And, at least in my mind, textualism seems to rely on a very plausible conception of what assertive content is – namely, an objective one. But now the main question is, how helpful is all this as a theory of statutory interpretation? It is not all that helpful, I will argue, because it is not frequently the case that a question of statutory interpretation arises due to some plausible question about the assertive content of the relevant legal ex-pression. In most cases of statutory interpretation the problem is not that we are not quite sure about what the law says; the problems arise because what the law says is not sufficient to determine how to resolve the particular dilemma that the court faces. For one, many cases of statutory interpretation arise due to a conflict between different laws. What the law says in one instance may not be what it says in a different instance and the two may come into conflict in some concrete cases. Many other questions of statutory interpretation are due to vagueness: Courts often face a dilemma about how to apply a legal provision to a borderline case where there is no linguistic answer to the question of whether or not the relevant legal term applies to a given object or instance. And then there are cases in which, though the law does not actually say that X, it may implicate it. Does this mean that the law mandates that X? Finally, it is worth


10

keeping in mind that countless pieces of legislation explicitly transfer the deci-sion making to courts (or agencies), often by using such hedging expressions as “reasonable” or “equitable,” etc. Legislatures do not always opt for settling par-ticular issues ex ante.

Let me demonstrate with some examples, beginning with the case of vagueness. Consider a fairly simple case: The criminal offense of burglary re-quires, among other things, “entering” the premises. Now suppose that in a particular case, the defendant broke the window of somebody’s house and was caught while having his arm extended through the broken window. Did he en-ter the premises? Or suppose that only his finger got through? Or not even that, only the hammer he used to break the window. Can we say, in any of these cas-es, that the defendant entered the premises? Such borderline cases of vague terms cannot be resolved by paying closer attention to what the law says – namely, to the assertive content of the legal expression of what “entering” the premises means in the relevant context. Entering the premises is a vague term: There are some instances that clearly qualify as entering premises, others that clearly do not constitute entering and then, as we just saw, there are some bor-derline cases. Those are cases about which there is no answer (or, as some the-ories of vagueness claim, there is an answer but it is not knowable) to the ques-tion of whether the borderline case is or is not an instance of “entering” the premises. From a linguistic perspective, it would not be a mistake to say that having one’s arm through the window is a case of entering, nor would it be a mistake to deny it. This is what borderline cases of vague terms essentially are: cases about which there is no saying whether the instance falls within the ex-tension of the term or not. Linguistically it can go either way. Therefore, when a court faces such a borderline case, paying close attention to what the law says is not going to be helpful at all. The court must decide one way or the other, according to the relevant normative considerations that apply.15

Furthermore, at least in some of the cases that call for decision on bor-derline cases of vague expressions, appeal to the law’s reasonably presumed purpose seems all but absolutely inevitable. Consider the case of Lawrence Burr. The British Road Traffic Act 1930 stipulated that any “vehicle” traveling on a public highway must be fitted with pneumatic tires. Burr fitted his poultry shed with iron wheels, attached it to his tractor, and pulled it down a stretch of pub-lic road. The lower court acquitted Burr on the grounds that a chicken coop is not a “vehicle.” Indeed, it is not. But the court of appeals overturned the ac-quittal, reasoning, quite sensibly, that the manifest purpose of the Road Traffic Act in this case was to prevent damage to the roads; why else require pneumat- 15 I explained all this in much greater detail in my “Varieties of Vagueness in the Law.”


11

ic tires? Therefore, any heavy structure with wheels attached should count as a vehicle for the purposes of this rule.16

One might be tempted to think that at least in criminal cases, the rule of leniency might resolve the issue: If the definition of the criminal offense leaves some doubt about its application to the particular features of the conduct in question, as it clearly does when the conduct is a borderline case of the relevant definition of the offense, then the doubts must be resolved in favor of the de-fendant. But this is illusory. The rule of leniency may do the trick in cases of ambiguity, but not, generally speaking, in cases of vagueness. What makes vagueness semantically problematic is not simply the fact that there are border-line cases about the application of the vague term, but the fact that there is a great deal of fuzziness about where those borderline cases begin and where they end.17 Suppose, for example, that you regard someone who broke the win-dow and only got his tool through the border of the premises in question as a borderline case of entering the premises, and thus, true to the rule of leniency, you decide to acquit the defendant. Now another defendant comes along who had his finger through the premises, and you apply the rule of leniency here as well and acquit. And then the next one comes along who had his whole arm through the window, and then one who had half of his body through the win-dow, and so on and so forth. In short, it is an essential aspect of vagueness that we have no clear demarcation of where borderline cases begin and where they end. The rule of leniency, even if you interpret it very broadly, just cannot solve such issues; it cannot determine its own application when its application is in doubt.

I hope that it is evident that the examples we used here generalize to countless other cases. It is a general feature of borderline cases of vague terms that they are not determined by the assertive content of the expression in which the vague term is used. There are some exceptions, of course. There might be contexts of conversation in which a vague term is used in a way that is sufficiently clear, in the particular context, whether it applies to a borderline case or not. Furthermore, as I argued elsewhere,18 expressions that are semanti-cally vague can be conversationally or pragmatically precise enough. In other words, there are cases in which a speaker can use a vague term applied to a borderline case yet succeed in conveying precise information. Consider this ex-

16 Garner v. Burr (1951), 1 KB 31. I am grateful to Robyn Carston for bringing this case to my attention. 17 It is this fuzziness of borderline cases (or, as some call it, second-order vagueness) that gives rise to the famous sorites paradox; see my “Varieties of Vagueness in the Law.” 18 “Varieties of Vagueness in the Law.”


12

ample: Suppose we are standing at a cocktail party, chatting about two people standing in the corner of the room. One of them is particularly short and the other, though much taller, is just slightly above average height. At some point in our conversation it is not clear to me which one of them you are talking about, so you clarify by saying, “I’m talking about the tall guy.” Surely this would be quite sufficient for me to identify the person you are talking about, even though the person you refer to is actually a borderline case of “tall.” Bar-ring such exceptional cases, however, where the context of the conversation is rich enough to clarify how a vague term is meant to apply to a borderline case, mostly borderline cases are just that, borderline cases. This occurs much more frequently in law, where the context of the conversation, so to speak, is rarely rich enough to warrant such conclusions with a great deal of certainty. Trying to pay closer attention to what the law says, in such cases, is like hoping to get richer by gazing at your wallet.

Let us move beyond the issue of vagueness and consider an entirely dif-ferent type of case that often arises in statutory interpretation. In countless or-dinary contexts of conversation, speakers do not quite say something but only implicate it, given what they actually did say and certain norms of conversation that apply. These are mostly, but not exclusively, cases Grice labeled conversa-tional implicatures. Other examples include utterance presuppositions and var-ious other pragmatic completions of implied content. As I argued elsewhere at length, in some cases implicated content is semantically encoded and does not form any particular challenge in the interpretative context. But in most cases, grasping the content implicated by an utterance in a given context requires what linguists call nondemonstrative (or defeasible) inference. And those infer-ences require the assumption that speaker and hearer adhere to some norms of conversation that apply, norms that guide the communicative interaction in question. Roughly, these are the norms Grice originally labeled “conversational maxims.”19

Consider this example: The law stipulates that “R: All x’s who are F

must ϕ, unless x is an A, or B or C.” In an ordinary conversational context, as-suming that the speaker is cooperative and adheres to the maxims of quantity (don’t say too little or too much), a reasonable hearer would rightly infer that the exceptions R mentions, namely, A, B and C, are exhaustive, and that the list excludes all other possible exceptions. Notice that this implicature is defeasible, the context of the expression may indicate otherwise and it is certainly cancela-ble without contradiction or any perplexity involved (e.g., the legislature could

19 I discuss all this in much greater detail in my “Can the Law Imply More than It Says?”


13

add “or other similar cases”). Textualism is aware of all this, including the need for conversational maxims to enable such pragmatic inferences to go through. Lawyers call them canons of construction. In our example, the relevant canon is called expressio unius est exlusio alterius (the expression of one thing implies the exclusion of others). As Scalia demonstrates, “when a car dealer promises a low financing to ‘purchasers with good credit,’ it is entirely clear that the rate is not available to purchasers with spotty credit.”20 Fancy Latin phraseology notwith-standing, this is quite simply the Gricean maxim of quantity: Do not say too little.

In their new book, Reading Law, Scalia and Garner list 57 canons of con-struction that they claim apply in U.S. law. Some of these canons, as we just saw, are ordinary conversational maxims or close relatives of them. Some are special and widely recognized rules of legislative drafting, such as the rule that phrases in masculine formulation include the feminine. Most other canons, however, are substantive legal doctrines (e.g., “presumption against waiver of sovereign immunity,” or the “mens rea” canon, etc.). I will have nothing to say about the long list of substantive legal doctrines Scalia calls canons of construc-tion, nor would I press the obvious question: Why not subsume countless oth-er legal doctrines under canon formulations and give us a list of hundreds of them? The essential point, for our purposes, is that textualism seems to main-tain that the legal content of statutes includes not only the kind of content that is actually asserted by the law but also content that is implicated by it. Further-more, textualism’s explicit assumption here is that, by relying on canons of construction, judges can avoid the normative and potentially controversial forms of reasoning that plague purposivism and intentionalism. But both of these ideas are questionable.

Here is the essential point to bear in mind: Implicated content of an ut-terance depends, as we have seen, on the norms that govern the conversational situation in question. Where do those norms come from? They come from the nature of the conversation – that is, from the purposes and interests of the par-ties to the conversation. In an ordinary conversation, we are typically warranted in assuming that those aims and interests are fully cooperative; parties to an or-dinary conversation are normally interested in a truthful exchange of infor-mation. But, of course, not all conversations are of this nature. There are nu-merous forms of communicative interactions where parties to the conversation are not interested, first and foremost, in a cooperative exchange of information; they may have some other purposes in mind, and those do not necessarily in-stantiate norms of truthfulness or full cooperation. A prominent example is po- 20 Reading Law, 107.


14

lite conversation: You tell the host of the dinner party that the meal was deli-cious, and you had better say that even if you think that the dishes were wretched. Conveying true and relevant information in such a context is simply not what is expected of the speaker, as a matter of social norms that apply. What is expected is to be kind and polite. Or, to take a very different context: Consider a typical conversation with a car dealer trying to sell you a used car. Would you really expect him to fully adhere to the maxims of relevance and quantity?

In short, norms that govern communicative interactions are always sen-sitive to the nature of the conversation and its manifest purposes. Legislation is a form of conversation whereby some legal actors, the legislators, communicate certain content to various audiences, including to the relevant subjects of the law and, almost inevitably, to the courts. In fact, the conversation of the legisla-ture with the courts is a continuous one; courts respond by ways in which they interpret and apply the laws to concrete cases, and legislatures respond by ways in which they phrase future laws aiming to achieve certain goals given the courts’ expected reactions, based on their previous decisions. And this conver-sation is not fully cooperative. As I argued elsewhere in some detail, the nature of the conversation between legislatures and the courts is partly strategic in na-ture.21

Why does it matter? It matters because it is the nature of strategic con-versations that the norms governing them are somewhat uncertain and in flux. If you know that the car dealer is not going to tell you the truth about the car he is trying to sell you, you will not bother asking. If you ask, it is because you have some partial and limited confidence in obtaining some information, even if it is not fully accurate. So you do not quite expect the car dealer to adhere to all the ordinary maxims of conversation, but you are not quite sure how much. You expect him not to lie to you outright, but you also do not expect him to tell you everything he deems relevant to your interests. Some uncertainty is cru-cially in play here.

Why couldn’t textualism assume, however, that the nature of the conver-sation between the courts and the legislature is a fully cooperative one or, at least, should be assumed to be so? The answer is that it is an essential part of textualism’s rationale, its raison d’etat, to assume the strategic nature of the conversation here; after all, textualism repeatedly emphasizes the distinction be-tween what the legislators may have wanted to convey and what they have ac-tually succeeded in conveying, giving legal effect only to the latter. Had we as-

21 “Can the Law Imply More than It Says?”


15

sumed a fully cooperative type of conversation between the legislatures and the courts, intentionalism would have won the day, and it would make much more sense to strive to ascertain what it is that the legislature wished to accomplish, rather than focusing on what it said. After all, in an ordinary conversation, where parties are fully cooperative, it is precisely each other’s intentions that parties to the conversation try to figure out, not only, or even mainly, what is said or asserted. Furthermore, the strategic nature of the conversation between legislators themselves during the enactment process forms an essential part of the textualist arguments about the serious difficulties of trying to ascertain what legislators may have wanted to convey and the inevitable unreliability of such attempts. In other words, part of the appeal of textualism crucially depends on the strategic nature of legislative processes and the idea that the conversation between courts and legislature cannot be modeled on an ordinary conversation between friends, as it were.

The problem, of course, is that if we assume that the conversation is strategic, rather than fully cooperative, then the norms that govern the conver-sation become somewhat questionable, and, in any case, the determination of what would count as content that has been implicated by a given utterance be-comes very uncertain. Now, this would seem to entail that textualism should be much more skeptical about content that is allegedly implicated, but not quite asserted, by a piece of legislative utterance; but such skepticism comes with a high price, as it would deplete textualism even further of its otherwise meager resources in dealing with the variety of statutory interpretation challenges that judges face. We have already noted that textualism has no resources to deal with interpretative questions stemming from vagueness; it has no resources to deal with conflict between different laws, especially when the asserted content of each is in no serious doubt;22 and, though this is an issue I have not dealt with here, textualism’s record on dealing with cases where what the law actually says yields absurd results is uneven, at best.23 In short, textualism turns out to

22 One might be tempted to think that some familiar canons of construction solve the prob-lem of conflict, such as the canon that later laws prevail over older ones, or that specific laws prevail over more general ones. The problem, of course, is that the canons themselves may come into conflict – for example, when the newer law is the more general one. Which one prevails then? 23 There is a striking dissonance between the stance Scalia takes in his writings about this is-sue and his actual judicial decisions. In his writings, Scalia clearly indicates that it is not the job of judges to correct the mistakes of the legislature when unintended and unforeseen con-sequences of their legislative language result in absurd consequences. But in some of his own rulings, Scalia has done just that, namely, corrected legislative formulation to avoid absurdity. See, for example, Green v. Bock Laundry Co. (1989) and FDA v. Brown and Williamson (2000). Judge Easterbrook is much more consistent with his view that absurd results do not count


16

be a very minimal interpretative tool, one that is simply not going to help judg-es solve most of the actual problems they face in statutory interpretation.

One may suspect that we have come a long way only to point out some-thing that should have been obvious from the start: Textualism tells judges to focus on what the law actually says or asserts, rather than on speculations about what legislatures may have wanted to say, or what the reasonable purpose of the law may have been. Litigants, however, are not going to waste their time and money on litigation only to be told something they could easily have fig-ured out by themselves. If cases dealing with statutory interpretation reach the courts (especially appellate courts) it is either because it is not sufficiently clear, under the circumstances, what the law says, or else because what the law says is clear enough but is not sufficient to determine the result of the interpretative question that arises. Not many cases, to put it cautiously, really depend on grasping what the relevant statutory phrase simply says or asserts in the context of its utterance.24

So it seems that textualism, though plausible within the narrow confines of articulating the determinants of what the law says, is rather unhelpful and vacuous as a general theory of statutory interpretation. But this is no accident; the debate between various theories of statutory interpretation is as much about political morality as it is about language and interpretation. And the de-bate is mostly about the level of cooperation that should be practiced between the legislature and the courts. Purposivism, and to some extent intentionalism, purport to be guided by a strong cooperative principle, whereby the role of the courts in interpreting the law is seen as continuous with the legislative process, aiming to give effect to the policy goals that the legislature strove to achieve. Textualism rejects, on moral-political grounds, this strong cooperative princi-ple; it wants the courts to deal with the legislature at arm’s length. The role of judges, on this view, is not to complete the project that the legislature has start-ed, so to speak, but to implement what the legislature ordered, regardless of the policy goals that may have guided it. In other words, textualism is unhelpful as a theory of statutory interpretation at least in part because it does not want to be helpful, or at least not more than absolutely necessary. I am not trying to ar-gue here that this is necessarily a wrong moral-political stance (or a right one), only to emphasize that it is just as political and just as normatively contentious

against clear legislative language. See his majority opinion in Marshall v. U.S. (1990) Court of Appeal 7th Circuit. 24 Almost every discussion about textualism ends up with only a handful of examples of ac-tual Supreme Court cases from the last few decades, invariably discussing Smith v. U.S. and three or four others. There is no abundance of examples where textualism is actually in play.


17

as any of its rivals. Different moral-political understandings of democracy, and the values inherent in democratic legislation, yield different views about the ap-propriate role of the judiciary in a democratic regime. Textualism can present itself as avoiding the contentious normative considerations that seem inevitable in purposive statutory interpretation only because it relies on a certain vision of democracy that is, however, not less politically contentious than any other. Mo-rality and politics form an integral part of statutory interpretation on any plau-sible view of it; the differences are in the morality, and in the politics, to which judges subscribe.25

25 I am indebted to Scott Altman and Elizabeth Garrett for helpful comments on a draft of this paper.


18

References

R.M. Dworkin, Law’s Empire, Fontana Press, 1996.

J. Fuller, The Morality of Law, Yale University Press, 1964.

M. Greenberg, “Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication,” in Marmor and Soames (eds), The Philo-sophical Foundations of Language in the Law, Oxford University Press, 2011, 217.

J. Manning, “What Divides Textualists from Purposivists?” 106 Columbia L. Rev, (2006), 70.

A. Marmor, “The Pragmatics of Legal Language,” 21 Ratio Juris, 2008, 423.

--- “Can the Law Imply More than It Says? On Some Pragmatic Aspects of Strategic Speech,” in Marmor and Soames (eds), The Philosophical Foundations of Language in the Law, Oxford University Press, 2011, 83.

--- “Truth in Law,” forthcoming in Law and Language, Current Legal Issues, M. Freeman & F. Smith eds., Oxford University Press, 2012.

--- “Varieties of Vagueness in the Law,” forthcoming in Handbook of Legal Rea-soning, Springer, 2013.

S. Neale, “Textualism with Intent”….

Rodriguez & Weingast, “The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation,” 151 U of Pennsylvania L. Rev, 2003.

H. M. Hart & A. Sacks, The Legal Process, Eskridge and Frickey eds., Foundation Press, 1994/1958.

A. Scalia, A Matter of Interpretation, A. Gutman, ed., Princeton University Press, 1997.

A. Scalia & B. Garner, Reading Law, Thomson/West, 2012.

A. Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation Harvard University Press, 2006.

J. Waldron, Law and Disagreement, Oxford University Press, 1999.


Evgeny Pašukanis

Mercancía y sujeto

"Teoría general del derecho y marxismo", Labor, Barcelona, 1976

Jeremy Waldron

Derecho y Desacuerdo (Capítulo introductorio)

Oxford University Press, 1999

of 20 Introduction

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2012.All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of amonograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: null; date:05 November 2012

Law and DisagreementJeremy Waldron

Print publication date: 1999Print ISBN-13: 9780198262138Published to Oxford Scholarship Online: Mar-12DOI: 10.1093/acprof:oso/9780198262138.001.0001

Introduction

Jeremy Waldron

DOI: 10.1093/acprof:oso/9780198262138.003.0001

Abstract and Keywords

This chapter explains the coverage of this book, which is about the issues oflaw and disagreement. This book aims to address the imbalances in modernjurisprudence. It explores the issues of legislatures in legal philosophy,unintentional legislation, legislation by assembly, the relevance of moralobjectivity and the circumstances of integrity. It examines John Rawls'Political Liberalism, the constitutional conception of democracy, andthe differences between rights and Bill of Rights and disagreement andprecommitment.

Keywords: law, disagreement, modern jurisprudence, legislature, legal philosophy,legislation by assembly, moral objectivity, Political Liberalism, John Rawls, Bill of Rights

1. Two Tasks in Political Philosophy

There are many of us, and we disagree about justice. That is, we not onlydisagree about the existence of God and the meaning of life; we disagreealso about what count as fair terms of co-operation among people whodisagree about the existence of God and the meaning of life. We disagreeabout what we owe each other in the way of tolerance, forbearance, respect,co-operation, and mutual aid. Liberals disagree with conservatives; socialistsdisagree with market economists; the party of freedom disagrees with theparty of community and both disagree with the party of equality; feministsdisagree with those who want the government to stand up for ‘familyvalues’; last-ditch defenders of the welfare state disagree with triumphant

http://www.oxfordscholarship.com/page/privacy-policy

of 20 Introduction


opponents of taxation; and pragmatists and utilitarians disagree with thosewho think the task of law is to vindicate the claims of order, retribution, anddesert.

Since the publication in 1971 of John Rawls’s book A Theory of justice,(1)political philosophers have concentrated their energies on contributingto, rather than pondering the significance of, these disagreements aboutjustice. Each has offered her (or, more usually, his)(2) own view of whatjustice consists in, what rights we have, what fair terms of social co-operationwould be, and what all of this is based on. And though each is acutely awareof rivals and alternatives – we see them every day, down the hall, in theseminar room, and at academic conferences – it is rare to find a (p. 2 )philosopher attempting to come to terms with disagreements about justicewithin the framework of his own political theory.

Perhaps that is as it should be: after all, the point of a theory of justice is tooffer a coherent and persuasive vision of a society well-ordered by principlesof justice and right. We ask each thinker to say what those principles are,how they are to be defended, and what are their implications. We do notexpect anyone to dilute or compromise his vision by taking into accountother and rival theories of justice (theories which, after careful thoughtand on what he takes to be good grounds, he rejects as mistaken). Wethink that if a theorist of justice does take a rival theory into account, heshould do so mainly by way of ‘product-differentiation’ or in order to ponderpossible weaknesses in his own theory, possible objections that mightoccur to his audience. But once he is convinced that the objections havebeen answered, he should offer his own theory as a candidate for moraland political hegemony. A well-ordered society, he should say, will be onestructured by his principles of justice, not by any others. And he shouldexpect his claims about justice to be considered and evaluated on that basis.

The alternatives are there, of course, and our philosopher will be acutelyaware that his rivals are presenting their own theories in exactly the samespirit, excluding his principles from their conceptions of a well-orderedsociety, just as he excludes their principles from his. If he thinks about thesealternative presentations – other than to prepare a defence of his own viewagainst possible objections – he will think of them as helping (together withhis own theory) to define a menu of options, a list of alternative social visions– each of them well-worked-out philosophically, each offering to do in adifferent way all the work that there is for a theory of justice to do. Selectingfrom this menu is a matter for the audience, for the public, and eventually


of 20 Introduction


(through whatever circuitous processes these things involve) for those whohave the power and the will to make a difference in society.

This last thought indicates, however, that there is another aspect of thematter which ought to engage us as philosophers. Surely we should ponderthe philosophical significance not only of justice itself, but of the nature andprincipled basis of political choice on matters of justice and right. Differentpeople in society hold differing and opposed theories of justice; yet socialdecisions are reached, and institutions and frameworks established, whichthen purport to command loyalty even in the face of those disagreements,even when such loyalty seems like moral betrayal to those who hold acontrary view. Surely this is worth philosophical attention; surely it is atopic on which the political philosopher ought to have something to say,something that goes beyond reiterating his own theory of justice andexpressing indignation when the rulers or voters opt instead for somealternative.

(p. 3 ) Reflecting on the philosophical significance of our politicaldisagreements is not just a matter of meta-ethics – it is not a matter ofarguing about relativism or scepticism concerning justice, for example, or ofelaborating and defending moral realism. A confident theorist of justice mayannounce, ‘Well, of course there is disagreement about justice; but as themoral realists have shown, the existence of disagreement is quite compatiblewith one of the contestant views being true and the others false.’ He cansay that, but it is hardly sufficient, particularly if it is just a prelude to hissaying, ‘And of course the true view about justice is my view, which I shallnow proceed to explain…’. For if he is at all self-aware, he knows very wellthat he will be followed, one by one, by his ideological rivals, each makinga similar announcement in similarly self-assured tones. The vocation of thepolitical philosopher is to examine philosophically, not just the metaphysics,but the morals and politics of disagreement – the implications for social life,social organization, and social action of the fact that even among those whoaccept the proposition that some views about justice are true and othersfalse, disagreement will persist as to which is which.

So there are at least two tasks for political philosophy: (i) theorizingabout justice (and rights and the common good etc.), and (ii) theorizingabout politics. My general aim in this book is not to discredit or distractus from the first task. But I want to insist on the importance of the secondsort of theorizing as a distinct agenda for political philosophy. I believethat philosophers of public affairs should spend less time with theorists


of 20 Introduction


of justice, and more time in the company of theorists of authority andtheorists of democracy, reflecting on the purposes for which, and theprocedures by which, communities settle on a single set of institutions evenin the face of disagreement about so much that we rightly regard as soimportant. We need, as I said, to see that as a distinct agenda, not one tobe engaged in simply as an upshot, consequence, or way of pursuing theprocedural implications of a particular substantive view. That is, we shouldnot be asking questions like, ‘What are the implications of (for example)John Rawls’s theory of justice so far as democratic and constitutionalprocedures are concerned?’ Instead we must ask, ‘What are we to thinkabout democratic and constitutional procedures, given that such procedureshave to accommodate a politics for those who differ fundamentally aboutwhether theories like Rawls’s are correct?’ We need to think of ourselves aspursuing the second agenda in the company of philosophers like ThomasHobbes and Immanuel Kant(3) – philosophers who made the existence ofdisagreement among individuals about rights and justice fundamental to (p. 4 ) the problems that their theories of authority, procedure, and politicalobligation were intended to solve.

2. Special Jurisprudence

There is an obvious connection between political philosophy and thephilosophy of law. The latter is not the whole of the former, for law is notall there is to politics. But there is a very significant overlap; the philosophyof law may be regarded as a large sub-field of political philosophy. Now, Isaid that there are two main tasks in political philosophy: (i) theorizing aboutjustice, rights, and the common good, and (ii) theorizing about the waysin which communities act when their members disagree. Where does thephilosophy of law fit in, so far as these tasks are concerned?

Law has to do with justice, and there is bound to be a connection betweentheorizing about justice and figuring out what is the right shape andfoundation for our laws to have. Much of what we call special jurisprudence– i.e. jurisprudence focused on specific topics in law such as tort liability orcriminal attempts(4) – should be filed under heading (i). In discussing, forexample, whether criminal attempts deserve to be punished as severelyas completed criminal acts or whether tort liability should be replaced by aNew Zealand-style system of accident compensation, we are asking, ‘Whatwould be the right or a just way to order our legal relations in this area?’The proposals of a particular jurist will amount to a fragment of a theory ofjustice, and may either be informed by or – if put together with his other


of 20 Introduction


proposals – add up to a more abstract or comprehensive theory of justiceof the sort that political philosophers (performing the first task) are familiarwith.(5)

Still, I hesitate to say that special jurisprudence is nothing more than partialor fragmentary participation in the task of building, or working out theimplications of, a philosophical theory of justice. It may be nothing more thanthat if the jurist approaches his topic (e.g. tort liability or criminal justice) asthough he could consider it afresh in a ‘Year Zero’ sort of way, as though hisconsideration of it would go best if uncontaminated by (p. 5 ) existing legaldoctrine or the past decisions of courts. Sometimes we proceed in that way,particularly if we think an area of the law is in need of radical revision. Moreoften, however, jurists identify a number of fixed points of existing doctrinewhich a good account – even a good normative or reforming account – ofthe law must ‘fit’. They proceed as though this consideration of fit wereas important to the success of their enterprise as any consideration of theabstract justice or moral appeal of their normative proposals. For them, itmay count against an otherwise attractive conception of corrective justice(say) that it does not make sense of the imposition of strict liability in caseslike Rylands v. Fletcher, or that it fails to untangle the knots of necessity andjustification in the Lake Erie Transportation decision.(6)

Some may understand this use of existing doctrine as a kind of ‘reflectiveequilibrium’: we argue for a new view by showing that it is both attractive inits own right and not incongruent with considered judgements that we arereluctant to give up. In jurisprudence, however, the standing of a previousdecision as one of the fixed points that a legal theory ought to fit is seldoma matter of the individual theorist’s being wedded to it as a ‘consideredjudgment’ of his own, something that he in particular is loath to abandon.Instead it is seen as something which he is not at liberty to give up, giventhat he is offering an account of the law (albeit a normative and reformingaccount), rather than simply an announcement of his own view.

I think this way of proceeding tells us that legal argument is to be understoodas much under the auspices of what I called task (ii) of political philosophy asunder the auspices of task (i). Let me explain.

The best account of the tension between a legal proposal appealing to usas just and its fitting existing doctrine is given by Ronald Dworkin in Law’sEmpire.(7) It is essential to Dworkin’s account that the requirement of ‘fit’is the tribute that political principles require a judge or a jurist to pay toother political decisions that have been made in our society, even those


of 20 Introduction


made on a basis that the individual judge or jurist does not find morallycongenial. In a pluralistic society, ‘different people hold different views aboutmoral issues that they all treat as of great importance’.(8) Fair politicalprocedures are likely at various times and in various settings to enfranchiseand empower the proponents of quite radically different principles. So,if we consider all the political decisions currently in force in our society,we will see that some of them were made by conservative legislatures,others by their liberal predecessors, others by feminist judges, and soon. One could, (p. 6 ) in a spirit of crusading zeal, simply ignore all this,brushing aside any decision or legal authority that did not comport withone’s own heartfelt convictions about justice. But it is not clear that onewould be engaging then in legal analysis; as opposed to simply announcingwhat, in one’s own view, the law on the matter ideally ought to be. Thelegal enterprise is not one ‘in which each person tries to plant the flagof his convictions over as large a domain of power or rules as possible’.(9) It is instead, as Dworkin puts it, the enterprise of trying to make thebest of the principles of justice already ‘instinct in the standing politicalarrangements of [one’s] community…whether or not [one] thinks thesethe best principles from a Utopian standpoint’.(10) In law above all, with itsrespect for authority, its idea of doctrine, and the discipline it imposes on thefree range of our individual ideas, each of us proceeds from start to finishin a spirit of sharing the social world with intelligences, consciences, andsources of normative ideation other than our own. Law, as I said, aspires tojustice; but it represents the aspiration to justice of a community, which –as Aristotle emphasizes – is made up not of those who think similarly, but ofthose who think differently, about matters of common concern.(11)

3. General Jurisprudence

I have argued that special jurisprudence has a foot in both camps, so faras the two tasks of political philosophy are concerned. It involves respectfor existing doctrine – even when existing doctrine involves ideas thatthe particular theorist disagrees with – and to that extent it pursues ideasassociated with the second task. But still its overall aim is to work out whatwould be a good or a just way of organizing our arrangements in some areaof law, and to that extent it is part and parcel of our theorizing about justice.

I believe, however, that when we turn from special to general jurisprudence– that is, when we reflect on law as such, on legal authority, legal obligation,the rule of law, etc.(12) – we move decisively and unambiguously to what Icalled the second task of political philosophy.


of 20 Introduction


(p. 7 ) The claims that law makes – on our attention, our respect and ourcompliance – are the claims of an existing (and developing) frameworkordering our actions and interactions in circumstances in which we disagreewith one another about how our actions and interactions should be ordered.I am not just referring to the disagreements (about alimony, accidents,overhanging boughs, etc.) that cause conflict among us and lead us to bringour competing claims to court for adjudication. I mean that law purports toadjudicate such conflicts (among its many other tasks) and claims authorityfor its adjudications on principles which are themselves controversial insociety. And it does so in frank acknowledgement of that controversy aboutprinciple. That is why the peremptory tone of its claim upon us is not ‘Here’sa basis for dispute-resolution which you should accept if you agree with it.’It is rather: ‘Here’s a basis for dispute-resolution which you are to acceptwhether you agree with it or not.’

The ground of this authoritarian claim is not that there are lawmakers whoknow better than we do (nor even that there are officials who have morepower or access to more lethal weapons than any of us). The authority of lawrests on the fact that there is a recognizable need for us to act in concert onvarious issues or to co-ordinate our behaviour in various areas with referenceto a common framework, and that this need is not obviated by the fact thatwe disagree among ourselves as to what our common course of action or ourcommon framework ought to be.

Given this as a basis for legal authority, a person should not be surprisedto find himself from time to time under a legal obligation to participate ina scheme that he himself regards as undesirable on grounds of justice (topay taxes, for example, to provide welfare assistance to people he regardsas undeserving). That is more or less bound to happen, given that it is thefunction of law to build frameworks and orchestrate collective action incircumstances of disagreement. In modern legal philosophy, we pay a lotof attention to issues about conscience and civil disobedience. We thinkthe law is in crisis when it conflicts with the firm and conscientious moralconvictions of the individual citizen. But the premise of this book – that thepoint of law is to enable us to act in the face of disagreement – indicatesthat cases like these should not be regarded as crises, exceptions, or limitingcases for law’s authority. It is normal for law, in what I shall later refer toas ‘the circumstances of politics’, to make claims that are at odds with thesense of justice of some or many of those who are under its authority.(13)


of 20 Introduction


(p. 8 ) No doubt it is possible to develop something like a generaljurisprudence as a part or implication of a particular substantive theory ofjustice. One would say: ‘Here’s the role that law would have in a societywell-ordered by the principles of justice for which I have argued.’ John Rawlsdoes something like this for his theory, explicating familiar rule-of-lawprecepts as desiderata for procedural justice and institutional design, andconnecting the idea of legality with liberal principles of publicity, generality,and transparency.(14) But this sort of approach to general jurisprudence istoo easy. Of course there is less of a problem for legal obligation and the ruleof law in a society whose citizens share the same fundamental view aboutjustice (especially if that view is the correct one). And of course there arefewer conundrums about judicial reasoning and legal interpretation if all thestanding rules and institutions of the society are based on that single well-founded view. The laws with which we are familiar, however, display theircharms, make their claims, and require to be understood and interpreted, incircumstances that are much more contentious than this.

4. Roberto Unger’s ‘Dirty Little Secret’

In a recent book Roberto Mangabeira Unger suggests that one of the‘dirty little secrets of contemporary jurisprudence’ is ‘its discomfort withdemocracy’. It shows up, he says, in every area of contemporary legalculture: not just ‘in the ceaseless identification of restraints upon majorityrule as the overriding responsibility of judges and jurists; in the consequenthypertrophy of counter‐majoritarian practices and arrangements;…and inthe single-minded focus upon the higher judges and their selection as themost important part of democratic politics’, but also in the failure to developand generalize ways of thinking in jurisprudence that are appropriate to lawunderstood as the creation and property of a free and democratic people.(15)

A prominent symptom of this failure is what Unger calls the ‘marginalization’of legislation. In modern jurisprudence, even in the Hart and Sachs LegalProcess materials which purport to be oriented to ‘the variety of forms oflaw-making that proliferated in the aftermath of the New Deal’, legislation isseldom given credit in its own right as a basis for legal growth and progress.Instead it is treated as ‘a subsidiary last-ditch source of legal evolution, to betolerated when none of the more refined modes of legal resolution applies’.(16)


of 20 Introduction


(p. 9 ) I think Unger is right about this. Perhaps he underestimates thework being done on legislation by legal scholars who would not describethemselves as philosophers: the work of William Eskridge and others on‘dynamic statutory construction’, for example.(17) But this does not affecthis point about jurisprudence. The best that can be said about what ishappening, so far as legislative studies are concerned, is that the annalsof legal philosophy are being enriched by the contributions of those whostudy statutes, rather than the other way round. If one asks what analyticjurisprudence has offered in return to the judge, lawyer, or law professorinterested in legislation, the answer is embarrassing. Even when theyconstruct theories of interpretation, analytic legal philosophers have almostnothing to say about the structural features of legislation that distinguish theinterpretation of a statute from the interpretation of a principle or a poem.The only structures that interest contemporary philosophers of law are thestructures of judicial reasoning. They are intoxicated with courts and blindedto almost everything else by the delights of constitutional adjudication. Theembarrassing thing is that they are in danger of prolonging this intoxicationlong after their non-philosophical colleagues have moved on to a morerealistic understanding of the sources of law.

What would it be like to imagine a jurisprudence that was comfortablewith democracy? Much of what follows may be seen as an attempt torise to Unger’s challenge. This book is an attempt to glimpse a genuinelydemocratic jurisprudence: a philosophy of law that pays something morethan lip-service to the ideal of self-government; a philosophy of law whichindeed puts that ideal to work – hard and detailed work – in its account ofthe nature of law, the basis of legitimacy, the task of interpretation, and therespective responsibilities of legislatures, citizens, and courts.

Thus the first part of Law and Disagreement is about legislation: statutesand the institutions that enact them. In some ways, legislation as a topichas been treated by jurists in a way that is quite congenial to the concernsabout disagreement that I have been outlining. No one is in any doubt thatlegislatures are adversarial institutions, operating indeed in a context ofcacophonous disagreement. Parties with opposing views about social justicecompete for control of the legislature, and the statutes that result (p. 10 )represent the short- or medium-term ascendancy of one view over theothers.

However, when and to the extent that philosophers of law focus on theauthority of legislation or the interpretation of a particular statute, the


of 20 Introduction


plurality and diversity of our lawmakers tends to be put to one side. Onceenacted, a bill is taken to represent a particular view – a view which, byreason of its having prevailed in the politics of the legislature, we can nowregard as singular and as authoritative in its singularity. If we are uncertainabout its application, we can ask what light ‘the lawmaker’s intention’ castson our interpretive difficulty, just as though we were talking about thepurposes or intentions of a single individual. The authority of statute law onthis account is the authority of the person or faction that drafted it, voted forit, and pushed it through its stages. One defers to it, therefore -or rather, onedefers to him or them – to the extent that one thinks this lawmaker can betrusted to come up with good or just laws, or at least better laws than one iscapable of making for oneself.(18)

In what follows, I shall propose a different understanding of legislation. Ihave emphasized already that there are many of us and that we disagreeabout social justice. I believe it is no accident that in almost every society inthe world, statutes are enacted by an assembly comprising many persons(usually hundreds) who claim in their diversity to represent all the majordisagreements about justice in their society, and whose enacted lawsclaim authority in the name of them all, not just in the name of the factionor majority who voted in their favour. Most jurisprudential theories oflegislation make these features marginal or problematic: for example, theydevelop a theory of the authority of a single lawmaker putting forward adeterminate view of his own, and then they scramble to adapt that model tothe inconvenient reality that in most cases legislation is enacted by and inthe name of a large bunch of people who do not share a view about anythingexcept the procedures that for the time being allow them to deliberatetogether in the assembly. I believe we should make the large numbersand the facts of diversity and disagreement central to our philosophy oflegislation. Statutes, we should say, are essentially – not just accidentally –the product of large and polyphonous assemblies. And this feature should bemade key to our understanding of how to deal with them – how to interpretthem and how to integrate them into the broader body of the law.

5. Rights and Constitutionalism

So far I have emphasized the work of legislatures in relation todisagreements about justice and policy. But I also want to address somequestions (p. 11 ) about courts and constitutions, and their relation todisagreements about rights. The two are clearly connected. One issue –perhaps the main issue – about the dignity and authority of legislation is


of 20 Introduction


how it stands in regard to the terms of a written constitution embodyinga Bill of Rights. The concern most commonly expressed about legislationis that legislative procedures may give expression to the tyranny of themajority and that legislative majorities are constantly – and in the UnitedKingdom, for example, endemically and constitutionally – in danger ofencroaching upon the rights of the individual or minorities. So widespreadis this fear, so familiar an element is it in our political culture, that the needfor constitutional constraints on legislative decisions has become more orless axiomatic. Τ think’, says Brian Barry (normally the most rigorous andargumentative of political theorists) that

there is little need for any argument in favor of the generalpoint that ex ante nobody could reasonably reject theproposition that rules governing the legal system and thepolitical system should be constitutionally entrenched.(19)

The laboured syntax of Barry’s sentence is perhaps evidence that defendersof constitutional entrenchment protest too much in favour of their position.At any rate, what I want to do, particularly in Part Three of the book, is tosubject this position to some questioning, particularly in light of the factthat the members of the liberal societies to whom this entrenchment isrecommended seem to disagree with one another every bit as much and asstrenuously about rights as they do about social justice and public policy.

The disagreement is evident at several levels.(20) First, there is noagreement about what it means to call something a right. Does ‘right’connote a moral absolute, a self-evident truth, a universal, or somecombination of the above? Are rights agent-relative claims, claims aboutbenefit or interest, claims about liberty, claims about waivable duty, orwhat? Philosophers disagree about these formal issues; and to the extentthat their esoteric arguments are heard beyond the confines of academe,those formal disagreements are echoed in various rival understandings ofrights in society at large. Secondly, and more substantively, people (whetherphilosophically trained or not) continue to disagree radically about whatrights we have – what they are rights to – and what they are based on.Disagreements of this second sort are rooted in turn in wider disagreementsabout the nature of justice (something which is particularly evident in thecase of the so-called social and economic rights). Thirdly, even if there isa rough or overlapping consensus on a set of basic rights or civil libertiessuch as those secured by the amendments to the US Constitution (p. 12 )or those enshrined in the European Convention on Human Rights (ECHR),there is ferocious disagreement about what this consensus entails so far


of 20 Introduction


as detailed applications are concerned. Does the US Bill of Rights implya right to privacy which in turn generates a basis for striking down lawsthat restrict abortion? Does the Second Amendment require legislatures topermit private individuals as well as well-regulated state militias to carryassault weapons? Does the ECHR permit corporal punishment in schools?I do not particularly care whether we call these disputes ‘disagreementsabout rights’, or ‘disagreements about interpretation’. What matters is thatthey divide us in fierce and intractable controversies. And like almost allpolitical disagreements, they appear to implicate issues on which everyoneacknowledges that we need as a society to take a common view.

I need hardly add that most of those who disagree about rights in any ofthese three ways do so in good faith. It is not a case of there being someof us who are in possession of the truth about rights – a truth which ouropponents wilfully or irrationally fail to acknowledge because they areblinded by ignorance, prejudice or interest. The issues that rights implicateare much too complicated to permit or require that sort of explanation.They are simply hard questions – matters on which reasonable peoplediffer. They are important questions, to be sure, and people are properlyferocious and indignant in defence of the answers they take to be correct.But it is a mistake to think that the more important the question, the morestraightforward or obvious the answer.

It is puzzling therefore that some philosophers and jurists treat rights asthough they were somehow beyond disagreement, as though they could bedealt with on a different plane in law – on the solemn plane of constitutionalprinciple far from the hurly-burly of legislatures and political controversyand disreputable procedures like voting. The puzzle is posed, for example,by Ronald Dworkin’s theory of rights as ‘trumps’.(21) If we say that it is thefunction of rights to ‘trump’ majority-decisions, it is surely incumbent on usto add some acknowledgement that people disagree about what rights wehave and to offer some basis whereby that disagreement might be resolved,so that there is something determinate to do the trumping. We cannot playtrumps if we disagree about the suits. Or if we do, we are open to what Iregard as the unanswerable cynicism of Thomas Hobbes in the motto of thisbook: for people to demand that we treat their theory of rights as the onethat is to prevail is ‘as intolerable in the society of men, as it is in play aftertrump is turned, to use for trump on every occasion, that suite whereof theyhave most in their hand’.(22)


of 20 Introduction


(p. 13 ) Something similar may be said about slogans like ‘the tyranny ofthe majority’. The most commonly expressed misgiving about unrestrainedlegislative authority is that minorities or individuals may suffer oppressionat the hands of a majority. That is an acute danger where the votes ofthose who compose the differing factions represent nothing more thanthe particular interests or satisfactions of the voters. On that assumption,allowing a majority to prevail means allowing the interests of the minority tobe sacrificed to those of the larger group. But nothing similar need happenbetween majorities and minorities if we assume that the members of thesociety are addressing controversial issues about rights in good faith, foron this assumption a vote may represent, not an individual interest, but anindividual opinion on a matter of common concern. The point to rememberhere is that nothing tyrannical happens to me merely by virtue of the factthat my opinion is not acted upon by a community of which I am a member.Provided that the opinion which is acted upon takes my interests, along witheveryone else’s, properly into account, the fact that it is not my opinion isnot itself a threat to my freedom or well-being.

Of course, since there is disagreement between my opinion and the opinionwhich commands majority support, I will not think that all interests havebeen properly taken into account or that the general good is being correctlyperceived. And I may think consequently that there is a serious threat tomy interests. But, again, we must remember that my interests need not bethe subject of the disagreement. If all parties are approaching the decisionin a public-spirited way, then the issues on which they disagree will notnecessarily reflect differential levels of concern for their own respective self-interests. It is true that A may differ from B and C about the proper regardthat is due to A’s interests; but A may also differ from B and C about theproper regard that is due to B’s interests. He may think that B and C, themajority, are underestimating the importance of some interest they have buthe lacks.(23)

The more important point though is this. Even if the issue on which A (theminority) differs from B and C is the proper level of respect due to (p. 14 ) A’sinterest, there is no reason to take A’s view of the matter any more seriouslyor think it is any more likely to be correct than the opinion shared by B andC – again, if all are approaching the matter in good faith. The majority isnot necessarily right, to be sure – but on a matter concerning the rights ofminorities, it is not necessarily wrong either.


of 20 Introduction


I presume that nobody wants to say that an individual has a right justbecause he thinks he does. Once this is accepted, we must be very carefulin our analysis of moral and political disputes to distinguish between theindividual or minority rights which are the subject of the disagreement andthe opinions held by an individual or a minority about their rights or therights of others. If we make that distinction, we will see that there is norights-based case for allowing minority opinions to prevail, though minority(or majority) opinions may make a good case for allowing certain minorityinterests to prevail. There is, accordingly, no necessary connection betweenthe idea of majority-decision about rights and the idea of the tyranny of themajority.

All of this assumes that people sometimes or often vote their considered andimpartial opinions when they are addressing controversial issues of justiceand rights; it assumes, as I said, that their votes and opinions are not alwaysthe reflex of their interests. The relation between opinions and interests isa complex one. I believe, however, that it is true empirically that citizensand representatives often do vote on the basis of good faith and relativelyimpartial opinions about justice, rights, and the common good. I believetoo that often our reasons for doubting this are quite disreputable. One istempted to say, These people disagree with me and my friends, so they mustbe voting out of self-interest’ – as though that were the only explanation.Succumbing to this temptation is, I think, particularly disreputable in thecase of a rights-theorist, for it is essential to the idea of rights that personsare moral agents who can be trusted with the responsibility to direct theirown lives and to perceive the proper limits placed on their own freedomof action by respect for the similar efforts of others. As I argue in ChaptersTen and Eleven, it simply will not do for theorists of rights to talk aboutus as upright and responsible autonomous individuals when they arecharacterizing our need for protection against majorities, while describingthe members of the majorities against whose tyranny such protection isnecessary as irresponsible Hobbesian predators. They cannot have it bothways.

At any rate, I shall proceed throughout this book on the assumption thatpeople sometimes or often do vote their considered and impartial opinions.It is by no means invariably true, but a normative theory of law and politicsneeds an aspirational quality, and this is mine. I shall assume that in orderfor law to claim authority along the lines that I think it can and should, thosewho participate in making it ought to do their best to (p. 15 ) address ingood faith the issues on which they know they disagree with others. If they


http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198262138.001.0001/acprof-9780198262138-chapter-10#


of 20 Introduction


proceed on any other basis, to that extent the authority of legislation and itsrelation to the existence of disagreement will need to be rethought. And ifthey proceed on a mixed basis – sometimes voting their interests, sometimestheir opinions, sometimes entangling the two – then we must face the factthat we have a mixed and indeterminate situation so far as legitimacy andauthority are concerned. This of course should not surprise us. We arebuilding normative models, and it is their task to illuminate complexity, nothide it.(24)

Much of the third part of this book (particularly Chapters Ten throughThirteen) is devoted to a discussion of constitutional rights and practicessuch as judicial review of legislation. Readers will quickly discern myopposition to American-style judicial review. When citizens or theirrepresentatives disagree about what rights we have or what those rightsentail, it seems something of an insult to say that this is not something theyare to be permitted to sort out by majoritarian processes, but that the issueis to be assigned instead for final determination to a small group of judges. Itis particularly insulting when they discover that the judges disagree amongthemselves along exactly the same lines as the citizens and representativesdo, and that the judges make their decisions, too, in the courtroom bymajority-voting. The citizens may well feel that if disagreements on thesematters are to be settled by counting heads, then it is their heads or those oftheir accountable representatives that should be counted.

Disagreement on matters of principle is, as I have emphasized, not theexception but the rule in politics. It follows that those who value popularparticipation in politics should not value it in a spirit that stops short at thethreshold of disagreements about rights. Such curtailment, I believe, betraysthe spirit of those who struggled for democracy and universal suffrage. Theworkers who braved cavalry charges at Peterloo in 1819, the women whochained themselves to the White House railings or threw themselves underthe hooves of the King’s horse at Epsom in turn-of-the-century suffragecampaigns, the African-Americans who faced batons, police-dogs, fire hoses,and worse in the Civil Rights movement in the 1950s and ’60s, did thesethings to secure a voice on the matters of political principle that confrontedtheir community. They did not do them simply for the sake of a vote oninterstitial issues of policy that had no compelling moral dimension. Theyfought for the franchise because they believed that controversies aboutthe fundamental ordering of their society – factory and hours legislation,property rights, free speech, police powers, temperance, campaign reform –were controversies for them to (p. 16 ) sort out, respectfully and on a basis



of 20 Introduction


of equality, because they were the people who would be affected by theoutcome. Moreover, they did not fight for the vote on the assumption thatthey would then all agree about the issues that they wanted the right to voteon. Every individual involved in these movements was well aware that therewere others standing alongside him who believed that his political views onmatters of substance were mistaken. But they fought for the vote anywayon the ground that the existence of such principled disagreements was theessence of politics, not that it should be regarded as a signal to transfer theimportant issues that they disagreed about to some other forum altogether,which would privilege the opinions and purses of a few.

It will be clear that I feel strongly about these issues. They are particularlypressing in the United Kingdom, where constitutional reform is now firmly onthe political agenda and where the institution of a Bill of Rights (perhaps bythe incorporation of the ECHR into municipal law) together with somethingakin to American-style judicial review is a distinct possibility. The issues aremuch less pressing in the United States, where for better or worse judicialreview of legislation is firmly entrenched as a practice. Though there havebeen American misgivings about this practice since its inception,(25) andthough there are continuing debates about how it is to be understood, itis quite clear that no amount of philosophical argument about democracy,disagreement, or anything else is going to dislodge it. To the extent, then,that there is a political edge to my comments about rights and judicialreview, I intend them to be heard in the British debate, not to offendAmerican constitutional pride or sensitivity.

But the practical politics of rights matter much less in a book of this kindthan our philosophical grasp of the issues involved.(26) If there is to bejudicial review of legislation in the name of individual rights, then we shouldunderstand all three elements – rights, courts, and legislation – in a way thatrespects the conditions of disagreement that lie at the heart of our politics.Rights are urgent issues that we disagree about. Legislation is the productof a complex deliberative process that takes disagreement seriously andthat claims its authority without attempting to conceal the contention anddivision that surrounds its enactment. Courts are also a forum for makingsocial decisions in a context of disagreement, but though they have manyadvantages, they are not necessarily the most representative or the mostrespectful of the contending voices in the community. If we bear (p. 17 )these things in mind, I think we will have a better understanding of law andconstitutionalism than if we erect a theory of justice and a philosophy of


of 20 Introduction


politics on the assumption that ultimately the members of a well-orderedsociety should be expected to agree on all serious issues of principle. (p. 18 )

Notes:

(1.) See Laslett and Fishkin (eds.), Philosophy, Politics and Society, 1–2,for the significance of Rawls’s book in revitalizing anglophone politicalphilosophy.

(2.) I shall use the masculine form of the pronoun, here and throughout,but not to indicate that only men do or ought to do political philosophy –that would ignore the substantial contributions of philosophers like AnnetteBaier, Seyla Benhabib, Jean Elshtain, Martha Fineman, Carol Gould, AmyGutmann, Jean Hampton, Virginia Held, Bonnie Honig, Frances Kamm,Christine Korsgaard, Martha Minow, Martha Nussbaum, Susan Okin, CarolPateman, Hanna Pitkin, Deborah Rhode, Nancy Rosenblum, Judith Shklar,Yael Tamir, Judith Thompson, Patricia Williams, Iris Young, and many others.I use the masculine form to avoid what Susan Okin calls ‘false genderneutrality’, i.e. the misleading impression, which neutral or feminine formsmight convey, that there is now a satisfactory balance between the workof men and women in this (or any other) part of the profession. (See Okin,Justice, Gender and the Family, 10–13.) The lamentable fact is that mostwork in political philosophy – especially work along the lines of `I-expect-you’d-all-like-to-know-what-I-would- do-if-I-ruled-the-world’ – is still done bymen.

(3.) Since this may be a startling claim so far as Kant is concerned, readersmay want to refer to the arguments in Waldron, ‘Kant’s Legal Positivism’.They should look too at Kant, The Metaphysics of Morals, 124.

(4.) This contrast between general and special jurisprudence (i.e. thephilosophy of law as such versus the philosophy of particular legal topicssuch as tort liability) differs from the distinction between general (oruniversal) and particular (or local) jurisprudence (i.e. the philosophy of lawas such versus the philosophy relevant to the law of particular jurisdictionssuch as England or the US). Obviously much particular jurisprudence is alsospecial jurisprudence; but it need not be. I am grateful to Michael Moore forthis point. See also Austin, The Province of Jurisprudence Determined, 16.

(5.) See Coleman, Risks and Wrongs and Rakowski, Equal Justice forexamples of different ways in which theories of this type may be articulated.


of 20 Introduction


(6.) Rylands v. Fletcher, LR 3 HL 330 (1868) and Vincent v. Lake ErieTransportation Co, 1910, 100 Minn. 456, NW 221.

(7.) See Dworkin, Law’s Empire. See also Ch. 9, below.

(8.) Dworkin, Law’s Empire, 178.

(9.) Dworkin, Law’s Empire, 211.

(10.) Ibid., 213.

(11.) Aristotle, The Politics, 21–2 (Bk. II, Ch. 2, 1261al7-bl0): ‘Is it not obviousthat a state may at length attain such a degree of unity as to be no longera state? – since the nature of a state is to be a plurality, and in tending togreater unity, from being a state, it becomes a family, and from being afamily, an individual…So that we ought not to attain this greatest unity evenif we could, for it would be the destruction of the state. Again, a state is notmade up only of so many men, but of different kinds of men…. Hence it isevident that a city is not by nature one in that sense which some personsaffirm; and that what is said to be the greatest good of cities is in reality theirdestruction.’ See also Waldron, The Wisdom of the Multitude’.

(12.) There is an excellent account of the tasks of general jurisprudence inthe ‘Introduction’ to Dworkin, Taking Rights Seriously, vii-ix.

(13.) Cf. the slightly different position of Gutmann, ‘Democracy and itsDiscontents’, 263: ‘On [the] deliberative conception of democracy, weshould expect democracy continuously to generate discontent with politicaloutcomes because the moral understanding of human beings is inadequateto the task of determining what is just once and for all. We should thereforeexpect widespread discontent even with legitimate or provisionally justifiabledemocratic decisions.’

(14.) Rawls, A Theory of Justice, 54–60 and 235–43.

(15.) Unger, What Should Legal Analysis Become?, 72–3 and 115.

(16.) Ibid., 73. Unger seems to have in mind passages like the following(from Hart and Sacks, The Legal Process, 164: ‘A legislature has a primary,first-line responsibility to establish the institutions necessary or appropriatein the everyday operation of government. For example, it must createcourts…. But in relation to the body of general directive arrangements whichgovern private activity in the society its responsibility is more accurately



http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198262138.001.0001/acprof-9780198262138-chapter-1#acprof-9780198262138-bibItem-18

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198262138.001.0001/acprof-9780198262138-chapter-1#acprof-9780198262138-bibItem-24

of 20 Introduction


described as secondary in the sense of second-line. The legislaturecharacteristically functions in this relation as an intermittently intervening,trouble-shooting, back-stopping agency…. The private lawmakers, thecourts, and administrative agencies are…the regularly available continuouslyfunctioning agencies of growth in the legal system.’ See also Waldron, ‘DirtyLittle Secret,’ 520.

(17.) See Eskridge, Dynamic Statutory Interpretation. See also the discussionin Ch. 2, s. 1, below.

(18.) Cf. the account of authority offered in Raz, The Morality of Freedom, 53.

(19.) Barry, Justice as Impartiality, 95.

(20.) See also the discussion in Ch. 10, s. 6, below.

(21.) See Dworkin, Taking Rights Seriously.

(22.) Hobbes, Leviathan, Ch. V, 33.

(23.) An example may help. It is notorious that many women dissent from thefeminist position on gender equality and independence, and that some mendo not. Suppose those of both sexes who are sympathetic to the feministposition happen to be in a minority. Then some members of the minority(the ‘feminist’ men) may characterize the disagreement by saying thatthere are people in the majority group (non-feminist women) who are notpaying proper or sufficient regard to their own interest in freedom and well-being. Similarly, affirmative action in the US is opposed by some of thosewhose interests it is intended to advance, and supported by many of thosewhose unfair advantages it is intended to offset or remedy. So if a majoritydecides that the rights of racial minorities do not generate an entitlement toaffirmative action, we are not in a position to assume that that is the verymajority whose actions and interests the minority rights in question wereintended to constrain.

(24.) I discuss this further in s. 6 of Ch. 13, below.

(25.) See, for example, Lincoln, ‘First Inaugural Address,’ at 57–9. Thepassage is quoted in fn. 27 of Ch. 12, below. See also Hand, The Bill of Rightsand Hand, The Spirit of Liberty.

(27.) This is Abraham Lincoln’s position in the ‘First Inaugural Address’, at221, suggesting that if such questions were to be settled by the Supreme



http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198262138.001.0001/acprof-9780198262138-chapter-2#acprof-9780198262138-div1-6






of 20 Introduction


Court, in ordinary cases, ‘the people will have ceased, to be their own rulers,having, to that extent, practically resigned their government, into the handsof that eminent tribunal’.

(26.) In other words, this book is not to be read as putting forward apolitical or constitutional proposal. Instead it is an attempt to enhance ourunderstanding of the issues at stake in various practices, institutions, andproposals.


Duncan Kennedy

Sicología de la ideología de las decisiones judiciales

"A critique of adjudication", Harvard University Press, Cambridge, 1997.

Frederick Schauer

Positivismo antes de Hart

Public Law and Legal Theory Research Paper Series No. 2010-01, University of Virginia School of Law, 2010

University of Virginia School of Law Public Law and Legal Theory Research Paper Series No. 2010-01

POSITIVISM BEFORE HART

Frederick Schauer University of Virginia School of Law

January 2010

This paper may be downloaded without charge from the

Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract=1512646

A complete index of University of Virginia School of Law research papers is available at

Law and Economics: http://www.ssrn.com/link/U-Virginia-LEC.html

Public Law and Legal Theory: http://www.ssrn.com/link/U-Virginia-PUB.html

http://ssrn.com/abstract=1512646

http://www.ssrn.com/link/U-Virginia-LEC.html

http://www.ssrn.com/link/U-Virginia-PUB.html

Frederick Schauer

University of Virginia School of Law

Abstract

Many contemporary practitioners of analytic jurisprudence take their understanding of legal positivism

largely from Hart, and the debates about legal positivism exist largely in a post-Hartian world. But if we

examine carefully the writings and motivations of Bentham and even Austin, we will discover that there

are good historical grounds for treating both a normative version of positivism and a version more focused

on legal decision-making as entitled to at least co-equal claims on the positivist tradition. And even if we

think of the inquiry in philosophical and not historical terms, there are reasons to doubt the view that a

theory of the nature of law is the exclusive understanding of the core commitment of legal positivism.

Positivism as a descriptive theory of the nature of law is important, but so too is positivism as a normative

theory about the preferable attitude of society or theorists, and so too is positivism as a normative or

descriptive theory of adjudication and other forms of legal decision-making. Those who understand

positivism and the positivist tradition as being more normative or more adjudication-focused than the

contemporary understanding allows are not committing either historical or philosophical mistakes, and

little would be lost were we to recognize the multiple important contemporary manifestations of the legal

positivist tradition.

Electronic copy available at: http://ssrn.com/abstract=1512646

1

11/23/2009

POSITIVISM BEFORE HART

Frederick Schauer1

H.L.A. Hart did not invent legal positivism. Nor did his hugely influential version of legal

positivism2 render all earlier versions obsolete or irrelevant. And although the first of these

statements is hardly controversial, the second is likely to be perceived in the precincts of

modern English language analytic jurisprudence as somewhere between debatable and simply

wrong. It is scarcely an exaggeration to observe that most of today’s analytic jurisprudence

starts with Hart,3 treats his arguments against Austin4 as conclusive,5 and understands

1 David and Mary Harrison Distinguished Professor of Law, University of Virginia. This paper has

been prepared for the conference on John Austin and His Legacy, to be held at University College London on 16-17 December 2009. I am extremely grateful for the timely and challenging comments of Brian Bix and Brian Leiter, and to Scott Hershovitz, Don Herzog, and the students in the Law and Philosophy Workshop at the University of Michigan for their helpful questions and interventions. 2 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 2d ed., ed. P. Bulloch & J. Raz,

1994). 3 Consider the opening two sentences of Jules Coleman, “Incorporationism, Conventionality,

and the Practical Difference Thesis,” in Jules Coleman, ed., Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001), pp. 99-147, at p. 99: “H.L.A. Hart’s The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive.” (footnote omitted).

Electronic copy available at: http://ssrn.com/abstract=1512646

2

Bentham6 as a founding father of legal positivism whose more particular insights, like

Wittgenstein’s ladder,7 may have been necessary to get us where we are but retain little

continuing importance.8 Indeed, even when contemporary practitioners of analytic

4 John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University

Press, Wilfrid E. Rumble ed., 1995). Hart’s critique is in Hart, op. cit. note 2, at pp. 18-78. 5 See, for example, Leslie Green, “Positivism and the Inseparability of Law and Morals,” New

York University Law Review, vol. 83 (2008), pp. 1035-58, at p. 1049; Leslie Green, “Law and Obligations,” in Jules Coleman & Scott Shapiro eds., Oxford Encyclopedia of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), pp. 514-47, at p. 517; D.N. MacCormick, “Legal Obligation and the Imperative Fallacy,” in A.W.B. Simpson ed., Oxford Essays in Jurisprudence (Second Series) (Oxford: Clarendon Press, 1973, pp. 100-129. Recent attempts to defend Austin’s focus on sanctions and coercion include Grant Lamond, “Coercion and the Nature of Law,” Legal Theory, vol. 7 (2001), pp. 35-57; Grant Lamond, “The Coerciveness of Law,” Oxford Journal of Legal Studies, vol. 20 (2000), pp. 39-62; Danny Priel, “Sanction and Obligation in Hart’s Theory of Law,” Ratio Juris, vol. 21 (2008), pp. 404-11; Frederick Schauer, “Was Austin Right After All?: On the Role of Sanctions in a Theory of Law,” Ratio Juris, vol. 23 (forthcoming 2010); Nicos Stavropoulos, “The Relevance of Coercion: Some Preliminaries,” Ratio Juris, vol. 23 (forthcoming 2010). 6 Jeremy Bentham, Of Laws in General, H.L.A. Hart ed. (London: Athlone Press, 1970). Also

relevant is Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, J.H. Burns & H.L.A. Hart eds., (London: Athlone Press, 1970). 7 Ludwig Wittgenstein, Tractatus Logico-Philosophicus, D.F. Pears & B.F. McGuinness trans.

(New York: Routledge, 1994), ¶6.54. 8I am describing the general tenor (with details to follow) of, for example, Jules Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001); Joseph Raz, The Authority of Law: Essays in Law and Morality (Oxford: Clarendon Press, 1979); Brian Bix, “Positively Positivism,” Virginia Law Review, vol. 85 (1999), pp. 889-923, at pp. 903-17; Brian H. Bix, “Legal Positivism,” in Martin P. Golding & William A. Edmundson eds., The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 2005), pp. 29-49; Jules Coleman, “Negative and Positive Positivism,” in Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988), pp. 3-27; Jules L. Coleman & Brian Leiter, “Legal Positivism,” in Dennis Patterson ed., A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell, 1996), pp. 241-260; Green, op. cit. note 5; Leslie Green, “General Jurisprudence: A 25th Anniversary Essay,” Oxford Journal of Legal Studies, vol. 25 (2005), pp. 565-80; Brian Leiter, “Positivism. Formalism, Realism,” Columbia Law Review, vol. 99 (1999), pp. 1138-64, at pp. 1150-53; Andrei Marmor, “Legal Positivism: Still Descriptive and

3

jurisprudence acknowledge modern legal positivism’s origins in Hobbes, Bentham. and Austin,

they tend to see at least the Benthamite and Austinian projects through a Hartian lens,

attributing to Bentham and Austin an understanding of legal positivism that owes more to Hart

and subsequent debates than to what Bentham and Austin actually believed and wrote.

My goal in this paper is to support the claims I have so far merely announced, and to

show the continuing importance of two conceptions of legal positivism, and indeed of the

jurisprudential enterprise, that are substantially at odds with much of the contemporary

understanding. In contrast to the common view that legal positivism says nothing about

adjudication, one of these conceptions has closer connections to legal decision-making (which

is not the same as adjudication, but encompasses it) than many contemporary positivists think

possible, and in addition furnishes a useful metric for characterizing and evaluating different

legal systems. The conception owes its roots to Bentham, although Austin is a more important

figure in this account than is commonly supposed, and it is connected with, but not identical to

the other conception I discuss here, the normative version of positivism developed in the work

of Tom Campbell,9 Neil MacCormick,10 Gerald Postema,11 and Jeremy Waldron,12 among

Morally Neutral,” Oxford Journal of Legal Studies,, vol. 26 (2006), pp. 683-704; Scott J. Shapiro, “On Hart’s Way Out,” in Jules Coleman ed., op. cit. note 3, pp. 149-91. 9 Tom Campbell, The Legal Theory of Ethical Positivism (Aldershot, UK: Dartmouth Publishing,

1996). 10

Neil MacCormick, “A Moralistic Case for A-moralistic Law,” Valparaiso Law Review, vol. 20 (1985).20-47. 11

Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986). 12

Jeremy Waldron, “Normative (or Ethical) Positivism,” in Coleman, op. cit. note 3, pp. 411-33.

4

others.13 But although normative positivism will be the subject of some of what is to follow, my

principal focus is on the relationship between legal positivism and legal decision-making, and

thus when Postema describes Bentham’s promotion of “publicly accessible and empirically

justifiable authoritative rules with fixed verbal formulations” as “strongly positivist,”14 he comes

close to the understanding of positivism to which I am referring. This Benthamite conception

of positivism as a characteristic of legal systems and not (only) of legal theories relates closely

to the “limited domain” understanding of legal decision-making I have discussed elsewhere,15

and it is a conception of positivism, intriguingly, that resembles the one employed by Ronald

Dworkin in the process of alleging its descriptive inaccuracy and moral undesirability.16 But my

goal here is neither to show that this variety of positivism is represented in one or another

actual legal system, nor that it should be understood as a normatively preferable model for any

particular legal regime. Indeed, my goal is not even to show that positivism as a

13

For example, David Dyzenhaus, “The Genealogy of Legal Positivism,” Oxford Journal of Legal Studies, vol. 24 (2004), pp. 39-63; Liam Murphy, “The Political Question of the Concept of Law,” in Jules Coleman and eds., op. cit. note 3, pp. 371-409, Liam Murphy, “Better to See Law This Way,” New York University Law Review,, vol. 83 (2008), pp. 1088-1107; W. Bradley Wendel, “Civil Obedience,” Columbia Law Review, vol. 104 (2004), pp. 363-426, at pp. 383-85. 14

Postema, op. cit. note 11, p. ix. 15

Frederick Schauer, “The Limited Domain of the Law,” Virginia Law Review, vol. 90 (2004), pp. 1909-56. See also Frederick Schauer, “Institutions and the Concept of Law: A Reply to Ronald Dworkin (with some help from Neil MacCormick),” in Maksymilian Del Mar & Zenon Bankowski eds., Law as Institutional Normative Order (Farnham, UK: Aldershot, 2009), pp. 35-44, at pp. 41-43. 16

Ronald Dworkin, Law’s Empire (Cambridge, Massachusetts: Harvard University Press, 1986); Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977). For the argument that supports characterizing Dworkin in these terms, see Schauer, op. cit. note 15; Frederick Schauer, “Constitutional Invocations,” Fordham Law Review, vol. 47 (1997), pp. 1295-1312.

5

characterization of legal decision-making is superior to other forms of positivism. It is only to

show that this version of legal positivism, as well as normative positivism, have a distinguished

historical provenance, considerable contemporary practical importance, and substantial

analytical coherence.

The difference between these alternative positivisms and the contemporary mainstream

understanding is not simply a matter of terminology. If all that were at stake were the

application or non-application of the word “positivism,” little would turn on the resolution of

the issue. But the dispute is not entirely about words, although words as labels and sorting

devices do make a difference. Rather, the issue is about the current embodiment of a

venerable tradition. Those who claim that their Hartian or post-Hartian understanding of the

core commitments of legal positivism is the exclusive (or demonstrably best, even if not

exclusive) one, and they are legion,17 may not only have misinterpreted the history of the

tradition by viewing it too much through the lens of modern analytic philosophy of law, but

may also, and more importantly, have assumed too easily that the pre-Hartian positivist

17See, for example, Bix, “Positively Positivism,” op. cit. note 8, at pp. 903-15; Coleman, op. cit. note 3 (“instructing judges in their decision-making may have been what formalism (and realism) were about, but it was not the purpose of legal positivism, neither in the “classical” times of John Austin, nor in the modern times of Joseph Raz and Jules Coleman.”); John Gardner, “Legal Positivism: 5 ½ Myths,” American Journal of Jurisprudence, vol. 46 (2001), pp. 199-227, at pp. 211-18 (“The legal positivist tradition” (p. 200) has no connection with adjudication and is “normatively inert” (p. 213)); Kenneth Eimar Himma, “Judicial Discretion and the Concept of Law,” Oxford Journal of Legal Studies, vol. 19 (1999), pp. 71-94; Leiter, op. cit. note 8, at pp. 1149-53 (“positivism is not a theory about what judges do, but about the concept of law”); Marmor, op. cit. note 8 (“Legal positivism” “is a whole tradition of thought” (p. 685) that “has nothing to do with the question of what judges ought to do” (p. 689)).

6

tradition is irrelevant to contemporary legal theory. This is far from the truth, and the principal

goal of this paper is to explain why this is so.

I. SOME WORDS ABOUT A WORD

It is curious that so much of the debate about the nature of legal positivism attaches to

the word “positivism.” Although Bentham and Austin, among others, talked about “positive

law,” and although the nineteenth century scientific positivism of Auguste Comte was explicitly

described as such,18 the use of the word “positivism” to describe a legal theory, regime, or

attitude first surfaced in the early twentieth century19 and was made substantially more visible

by the anti-positivist Lon Fuller in 1940 in Law in Quest of Itself.20 And though inaccuracies

about positivism surface here and even more in Fuller’s later work,21 he does get one

dimension of positivism more or less correctly when he defines “positivism” as a “direction of

18

Auguste Comte, A General View of Positivism, J.H. Bridges trans. (Cambridge: Cambridge University Press, 2009). 19

Anthony Sebok reports that “no such theory was discussed by name in legal literature before the late 1920s,” Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cambridge: Cambridge University Press, 1998), p. 2, but the term appears, with explicit reference to a legal theory, in Josef Kohler, Philosophy of Law, Adalbert Albrecht, trans. (Boston: Boston Book Co., 1914), p. xliii. Interestingly, Kohler used the term in order to emphasize the dangers of focusing too much on existing law, dangers that were the ones emphasized (probably incorrectly) by Fuller and others in the years to follow. 20

Lon L. Fuller, The Law in Quest of Itself (Boston: Beacon Press, 1940). 21

See Lon L. Fuller, The Morality of Law, revised edition (New Haven: Yale University Press, 1969), pp. 110-12, 145-51; Lon L. Fuller, The Anatomy of the Law New York: New American Library, 1968), pp. 184-85.

7

legal thought which insists on drawing a sharp distinction between the law that is and the law

that ought to be.”22

That few legal theorists, positivist or not, used the word “positivism” prior to Fuller is

not merely an interesting historical tidbit. Rather, it is a signal, although no more than a signal,

that we are dealing with contested terminological terrain. And by 1970, when Robert Summers

urged that the word “positivism” be discarded from legal theory entirely because it had become

“radically ambiguous and dominantly pejorative,”23 the degree of contestation had become

even greater. Forty years later, of course, the word is no longer a pejorative within serious

analytic legal philosophy, although in the halls of some American law faculties it still retains

much of the odor it had when Summers was writing and Fuller was thriving.24 But the point of

scanning the etymological landscape is only to emphasize that those who purport to have

identified the “core” of legal positivism may have only identified the core of the conception

that dominates the thinking and writing of Hart and those who have succeeded him. This may

represent an importance advance in thinking about the nature of law and the task of legal

philosophy, but these gains have not come without costs. Whether Hart’s conception is the

22

Fuller, op. cit. note 16, at 8. 23

Robert S. Summers, “Legal Philosophy Today – An Introduction,” in Robert S. Summers ed., Essays in Legal Philosophy (Oxford: Basil Blackwell, 1970), pp. 1-21, at pp. 15-16. 24

See, for example, William Bradford, “’Another Such Victory and We Are Undone’: A Call to an American Indian Declaration of Independence,” Tulsa Law Review, vol. 71 (2004), pp. 71-123, at pp. 99-106; William N. Eskridge, Jr., “Metaprocedure,” Yale Law Journal, vol. 98 (1989), pp. 945-74, at pp. 962-72; Pierre Schlag, “The Aesthetics of American Law,” Harvard Law Review, vol. 115 (2002), pp. 1047-71; Jeffrey G. Sherman, “Law’s Lunacy: W.S. Gilbert and the Deus ex Lege,” Oregon Law Review, vol. 83 (2004), pp. 1035-96, at p. 1078; Robin West, “Three Positivisms,” Boston University Law Review, vol. 78 (1998), pp. 791-834.

8

only one, or even the correct one, or even the best modern version of ideas that started with

Bentham and Austin and owe much to Hobbes as well, is sometimes exactly the matter at issue.

On the question of how to understand the positivist tradition (as opposed to best

understanding the nature of law), therefore, to start with Hart and presuppose his

authoritativeness as the central figure in legal positivism is to assume the conclusion of exactly

what we sometimes valuably seek to determine.

II. THREE CONCEPTS OF POSITIVISM

For the sake of clarity, I want to distinguish among three positions, each of them

(probably) held by both Bentham and Austin, among others. The first, which we can label, least

controversially, as conceptual positivism, is very much the modern understanding, although I

bracket interesting variations and disagreements. Still, conceptual positivism focuses on a

series of conceptual claims about the relationship between the domains of law and of morality.

In its purest and most capacious form, a form coming closest to what in contemporary legal

theory is called incorporationism,25 inclusive legal positivism,26 or soft positivism,27 conceptual

positivism holds that morality is not a necessary condition of legality in all possible legal

systems in all possible worlds.28 Put differently, the inclusive version of conceptual positivism

25

Coleman, op. cit. note 3. 26

W.J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994); Kenneth Einar Himma, “Inclusive Legal Positivism,” in Jules Coleman & Scott Shapiro eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), pp. 125-65. 27

H.L.A. Hart, “Postscript,” in Hart, op. cit. note 2, pp. 238-76, at pp. 250-54. 28

Jules Coleman, “Negative and Positive Positivism,” op. cit. note 8.

9

maintains that morality, while often and sometimes even desirably part of law and part of the

rule of recognition in this or that legal system, is not a component of the concept of law. And

inclusive legal positivism’s most significant opponent, exclusive positivism,29 is also a conceptual

thesis, insisting that legality necessarily does not implicate morality, in contrast to inclusive

positivism’s claim that legality does not necessarily implicate morality.30

Conceptual positivism is typically presented and supported as a descriptive thesis,

assuming, for the sake of argument, that there are concepts, that their analysis can provide

useful substantive information,31 and that they can be described without taking on any moral or

normative freight.32 “Positivism” is thus an attribute of a concept, and the conceptual

positivist is one who believes that it is in the nature of the concept of law that morality is either

no part of it or not necessarily a part of it.

29

See Andrei Marmor, “Exclusive Legal Positivism,” in Coleman & Shapiro, op. cit. note 26, pp. 104-24; Joseph Raz, “Legal Positivism and the Sources of Law,” in The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1978); Joseph Raz, “Authority, Law and Morality,” The Monist, vol. 68 (1985), pp. 295-324. 30

I borrow this way of expressing the difference between inclusive and exclusive positivism from Waldron, op. cit. note 12, at p. 414. 31

Doubts about the value of pure conceptual analysis in jurisprudence are prominently expressed in Brian Leiter, Naturalizing Jurisprudence (Oxford: Oxford University Press, 2007), pp. 121-202; Brian Leiter, “Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis,” in Jules Coleman ed., op. cit. note 3, pp. 355-70. 32

The leading challenges to this last assumption are John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 3-22; Stephen R. Perry, “Hart’s Methodological Positivism,” in Coleman, op. cit. note 3, at pp. 311-54; Stephen R. Perry, “Interpretation and Methodology in Legal Theory,” in Andrei Marmor ed., Interpretation and Legal Theory: Essays in Legal Philosophy (Oxford: Clarendon Press, 1997), pp. 97-131.

10

Although recognizing the conceptual separation of law and morality may have

advantages (apart from its descriptive accuracy) for a society and for the conceptual positivist

herself, the conceptual positivist views these advantages, if indeed they exist, as no more than

a fortunate side-effect. Law and morality would be conceptually distinct, the conceptual

positivist believes, even if that were a sad fact about the world, and even if it led to injustice.

But just as the pernicious effects of typhoid would not lead the rational observer to deny its

existence, so too would any putative deleterious effects of the conceptual separation of law

and morality be irrelevant to the question of its existence.

By contrast, normative positivism, the label chosen by Jeremy Waldron,33 one of its

proponents, is the view that the conceptual separation of law and morality is largely a function

of choosing a concept of law that has this feature. The normative positivist views concepts – or

understandings, if you will – as social artifacts, subject to creation and re-creation by the

society within which they exist.34 And thus the normative positivist believes that a positivist

understanding of law should be chosen by a society (or, perhaps, by a theorist) because of the

33

Waldron, op. cit. note 12. 34See Frederick Schauer, “The Social Construction of the Concept of Law: A Reply to Julie Dickson,” Oxford Journal of Legal Studies, 25 (2005), 493-501. Waldron is unclear about the relationship between the normative part of normative positivism and the ontological status of the concept of law. When he describes normative positivism as viewing the separation of legal judgment as something “to be valued and encouraged,” he does not directly address whether the something that is to be valued and encouraged has an existence antecedent to the valuing and encouraging. That we should value giant pandas and encourage those who would help them thrive does not suggest that giant pandas are socially constructed for normative reasons. Concepts, however, and certainly the concept of law, are social constructions, and to value and encourage the separation of legal and moral judgment might be to encourage the creation or re-creation of the concept of law so that legal and moral judgment will become or will remain separate. This is the position in Schauer, ibid., but it is unclear whether it is Waldron’s as well.

11

good that such an understanding will produce. Normative positivism promotes legal positivism

possibly because a positivist outlook facilitates disobedience to iniquitous law (Hart35), possibly

because it facilitates law reform (Bentham), possibly because it fosters a valuable distance from

or non-endorsement of law (Lyons36), possibly because it encourages greater appreciation of

35

Hart’s writings do not resolve conclusively whether he should understood as sympathetic to normative positivism. That positivism should be chosen for instrumental normative reasons is a plausible reading of H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review, vol. 71 (1958), pp. 593-629 (see Murphy, op. cit. note 13), and in The Concept of Law, at p. 209, Hart described the “reasoned choice” between positivism and natural law as a matter of “comparative merit.” Exercising this choice, says Hart, must involve determining which of them “will assist our theoretical inquiries, or advance our moral deliberations, or both.” For Hart, positivism is preferable not because it is an accurate description, but because “nothing is to be gained in the theoretical or scientific study of law as a social phenomenon by adopting the narrower concept *of natural law+.” (emphasis added). Moreover, he says (p. 210), the view “that there is something outside the official system, by reference to which in the last resort the individual must solve his problems of obedience, is surely more likely to be kept alive among those who are accustomed to think that rules of law may be iniquitous, than among those who think that nothing iniquitous can anywhere have the status of law.” Hart continues in this vein for two more pages, making clear that for him the moral virtues of a positivist “concept of law” (p. 211) provide the best reason for a society to adopt such an understanding.

Yet despite the foregoing, Hart elsewhere in The Concept of Law, and at times even in the 1958 article, emphasizes that his primary goal is descriptive accuracy, see Green, “Inseparability . . .,” op. cit. note 5, at p. 1039, a view explicitly and persistently reinforced throughout the “Postscript” (e.g., p. 240). And thus because there are statements in Hart’s work that would both support and rebut aligning him with normative positivism, it might be preferable to refrain from describing Hart’s view of positivism as either descriptive or normative, in favor of relying on Julie Dickson’s apt description of Hart’s different views about the question as “awkward.” Julie Dickson, “Is Bad Law Still Law? Is Bad Law Really Law?”, in Del Mar & Bankowski, op. cit. note 15, pp. 161-83, at p. 164. So even if the warrant for characterizing Hart as a normative positivist is questionable, the justification for claiming that his positivism was entirely descriptive is equally so.

36

David B. Lyons, Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility (Cambridge: Cambridge University Press, 1993), pp. ix-x (where Lyons explains his earlier sympathy with positivism as based on his belief that positivism “embodied a fitting lack of reverence for the law,” a position he then came to question). See also Frederick Schauer, “Positivism Through Thick and Thin,” in Brian Bix ed., Analyzing Law: New Essays in Legal Theory (Oxford: Oxford University Press, 1998), pp. 65-78; Frederick Schauer, “Positivism as

12

the functions of law (Waldron), or possibly for other reasons, but those who hold this position

believe positivism is chosen by a society rather than just emerging, and offer reasons why it is

better for some purpose other than descriptive accuracy for a theorist to choose positivism

over its alternatives.

The normative positivism of Waldron and others is a program of legal understanding

and not institutional design. At least for Waldron, although perhaps not for Postema, and

certainly not for Campbell,37 positivism is not about adjudication, nor about how non-

adjudicative legal decisions should made, nor about how legal institutions should be designed

in order to produce better decisions. And thus normative positivism should be distinguished

from what we can call decisional positivism, recognizing that those who believe that conceptual

positivism is the only genuine positivism will strongly resist applying the “positivism” label to

any theory of adjudication or legal decision-making.38 But let us temporarily bracket this

objection, because confronting it will be the focus in the ensuing sections. For now, it is

sufficient to say only that decisional positivism – some might call it formalism39 -- is a view

Pariah,” in Robert George ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), pp. 31-56; Frederick Schauer, “Fuller’s Internal Point of View,” Law and Philosophy, vol. 12 (1994), pp. 285-312. 37

See Campbell, op. cit. note 9, at pp. 41-68. 38

See, for example, the theorists (and quotations) noted above, op. cit. note 17. See also Green, op. cit. note 8, p. 1036 (“*L+egal positivists were not offering advice. They were trying to understand the nature of law.”). 39

See Sebok, op. cit. note 19. On form and formalism more generally, see Robert S. Summers, Form and Function in a Legal System: A General Study (Cambridge: Cambridge University Press, 2006).

13

about the design of legal institutions and legal decision-making procedures.40 More

particularly, it is a view that in its normative aspect seeks to create institutions relying on

relatively precise rules, minimizing adjudicative discretion, limiting the law-making power of

judges and other law-application officials, restricting legal decision-makers to a limited set of

easily identifiable sources, and in general fostering predictability and limiting judicial

authority.41 Thus, it is a view about the role of posited law in legal decision-making, and it is

precisely decisional positivism’s view about the role of explicitly and clearly posited law that

justifies giving it the positivist label. Bentham plainly held decisional positivist views, and

Austin’s favorable views about codification place him in much the same camp, albeit less

obviously and less famously so.42 Indeed, it is decisional positivism that best explains Postema’s

characterization quoted above.43

40

David Dyzenhaus, op. cit. note 13, develops an account and defense of what he calls “judicial positivism,” which is in the same neighborhood as what I describe here. But there is no reason to believe that all or most important decisions of legal application, enforcement, and interpretation are made by judges, and the term I use is intended to emphasize that a positivist theory of how legal actors do or should behave need not be parochially focused on judges alone. 41

Note that, pace Marmor, op. cit. note 8, a decisional positivist need not have a view about a judge’s duties, whether moral or otherwise. Decisional positivism is foremost a view about the design of legal decision-making institutions, and the positivist (or Benthamite, if you will) view of judicial decision-making might, through sanctions or otherwise, attempt to prevent a judge’s reliance on her own moral judgments even if, from the judge’s perspective, it would be right to rely on those moral judgments when they conflicted with the positive law. 42

John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law (Robert Campbell ed., New York: James Cockroft & Co., 1875), vol. II, pp. 108-35 (¶¶ 932-969)(Lecture XXXIX, parts I & II). See also Eira Ruben, “John Austin’s Political Pamphlets 1824-1859,” in Ellspeth Attwooll ed., Perspectives on Jurisprudence (London: Rowman & Littlefield, 1977), pp. 20-41. 43

See text accompanying note 14, op. cit.

14

As exemplified by Bentham most clearly, decisional positivism has a normative agenda, but

it is worthwhile emphasizing that the agenda need not have substantive moral or political goals.

Bentham used the term “universal jurisprudence” to refer exclusively to questions of legal

form,44 and although Bentham’s concerns with legal form were largely in the service of

substantive reform, in theory it would be possible to prefer a decisional positivist view of

codification, formalism, and judicial discretion for different substantive reasons at different

times and in different places, or for no substantive reasons at all. Moreover, someone could

prefer decisional positivism to its alternatives without believing that the legal system needed to

be reformed at all, and could simply wish to endorse some legal system’s existing approach to

the application, enforcement, and interpretation of law.

The foregoing characterization of decisional positivism portrays it as normative, but it can

have a descriptive aspect as well. As description, decisional positivism characterizes a legal

system as positivist insofar as it relies on, for example, statutes rather than common law,

insofar as those statutes are precise rather than vague, insofar as a formalist approach dictates

questions of statutory interpretation,45 insofar as it limits judicial discretion, and insofar as its

domain of acceptable legal sources is a relatively small portion of the array of acceptable social

sources. To use positivism as a description, or a scale along which to measure legal systems, is

not necessarily to have a view about the desirability of a positivist approach to legal

44

See Postema, op. cit. note 11, at pp. 304-08. 45

See Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, Massachusetts: Harvard University Press, 2009), pp. 29-34, 148-70, 228-29; Frederick Schauer, “Formalism,” Yale Law Journal, vol. 97 (1987), pp. 509-41.

15

institutional design. A stringently code-based legal system, for example, could be described as

positivist even by one who thought such a system a bad idea. Similarly, an approach in which

legal decision-makers understood their task as making decisions based on a limited set of

pedigreed legal materials rather than on larger conceptions of policy, morality, and pragmatism

could be described as positivist even by someone who believed that the characterization was

descriptively inaccurate when applied to a particular legal system. When Dworkin describes his

foil in Taking Rights Seriously as positivist, for example, it is decisional positivism he must have

in mind, because it is only decisional positivism that would allow characterizing the dissenting

opinion in Riggs v. Palmer46 as positivist, and that could explain Dworkin’s view that positivism

has little room for non-pedigreed principles of morality in judicial decision-making.

Thus, decisional positivism has both normative and descriptive dimensions. Normatively, it

is the claim that legal systems should be designed to minimize the discretion of judges, police

officers, and other legal officials, and descriptively it is the metric along which actual legal

systems might be characterized. Descriptively, therefore, the extreme of the civil law ideal type

(or, perhaps better, stereotype), better exemplified by Bentham’s aspirations than by any real

civil law country, might lie at the pole of extreme decisional positivism, and a legal system

pervaded by common law methods, instrumentalism, and anti-formalism, arguably instantiated

in the contemporary United States, might lie at the opposite pole of minimal decisional

positivism.47 Decisional positivism in its non-normative aspect is thus the scalar or non-binary

46

22 N.E. 188 (N.Y. 1889). 47

See P.S. Atiyah & R.S. Summers, Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning, Legal Theory and Legal Institutions (Oxford: Clarendon Press, 1987);

16

measure of just how heavily legal decisions are constrained by the texts of formal legal sources

and just how much the array of those sources is a limited subset of the full array of social

sources, a subset identifiable by pedigree and not by content.

III. THE MULTIPLE STANDPOINTS OF NORMATIVE POSITIVISM: A BRIEF DIGRESSION

Scholars have debated whether the purely descriptive pretensions of conceptual

positivism are even possible,48 but normative positivism does not require that descriptive

conceptual positivism be impossible, and normative positivism’s desirability does not

presuppose its inevitability. Even if it were possible to discover and describe the concept of law

in a value-neutral way, it could still be worthwhile to consider whether the concept so

described should be endorsed or condemned, promoted or restricted, changed or perpetuated.

As long as we acknowledge the socially constructed and thus non-eternal nature of the concept

Richard A. Posner, Law and Legal Theory in England and America (1996); Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca, New York: Cornalle University Press, 1982). Among the iconic works of the American instrumentalist and anti-formalist tradition would be Guido Calabresi, A Common Law for the Age of Statutes (Cambridge, Massachusetts: Harvard University Press, 1982); Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, rev. ed. 1969); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, ed. William N. Eskridge, Jr. & Philip P. Frickey (New York: Foundation Press, 1994); Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review, vol. 10 (1897), pp. 457-78; Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little Brown, 1960). 48

Compare, for example, Julie Dickson, Evaluation and Legal Theory (Oxford: Hart Publishing, 2001); Marmor, op. cit. note 8; Joseph Raz, “Can There Be a Theory of Law,?” in Golding & Edmundson, op. cit. note 8, pp. 324-42; Philip Soper, “Choosing a Legal Theory on Moral Grounds,” Social Philosophy and Policy, vol. 4 (1986), pp. 31-48; Wilfrid J. Waluchow, op. cit. note 26, pp. 86-98, with Ronald Dworkin, Justice in Robes (Cambridge, Massachusetts: Harvard University Press, 2006), pp. 140-240; Finnis, op. cit. note 32, pp. 3-22; Perry, op. cit. note 32.

17

of law,49 it is open to the theorist or citizen to consider what attitude to have – and what

actions to take on the basis of that attitude – about the product of that social construction,

even assuming the ability to describe what has been constructed at some moment in time.50

Consequently, it is useful to reflect on the claims behind normative positivism, and, similarly, to

the claims behind the normative version of decisional positivism. Partly by way of digression,

therefore, a bit more can be said about normative positivism, with specific reference to the fact

that it is not always clear from the relevant writings just what it is to be normative, who is to be

normative, and what they are supposed to be normative about.51

Thus, although the normative is the domain of the “ought” rather than the “is,” the

question arises about who it is who ought to do what. Waldron, for example, is not entirely

explicit about whether in urging normative positivism he is urging that law be understood in a

positivist way, or urging other legal theorists to understand law in a positivist way, or describing

the fact that legal theorists understanding law in a positivist way have good reasons for that

understanding, or whether he is describing or joining those who believe that it would be better

for society to understand law in a positivist way. Each of these positions is possible, but it is

important to understand the nature of the normative claims that are being advanced.

49

See Leslie Green, :The Concept of Law Revisited,” Michigan Law Review, vol. 94 (1996), pp. 1687-1717, at pp. 1687-92. 50

The preceding sentences in the text summarize the argument in Schauer, op. cit. note 34. 51

A valuable discussion is in Stephen R. Perry, “The Varieties of Legal Positivism,” Canadian Journal of Law and Jurisprudence, vol. 9 (1996), pp. 361-88. See also Leslie Green’s distinction between methodological and object-level claims in Green, op. cit. note 5, at pp. 1038-39.

18

Accordingly, if – and it is contested52 – Hart is taking a normative stance in his debate

with Fuller, the normative position he adopts is that it is better for society to understand law in

a positivist way not because law and morality just are distinct, but because understanding them

as distinct will foster the social good of disobedience to bad laws. Implicit in this view is the

assumption that a concept of law is something that society constructs, and that can be

constructed in one way or another. With the choice thus open, Hart’s normative positivism can

be seen as a plea to society to have a particular understanding about law,53 and to frame its

legal understanding such that law and morality are conceptualized as separate normative

domains.

Alternatively, other normative positivists – Bentham is a good example – might be

addressing their prescriptions about positivism to theorists and commentators, just as Bentham

was, in part, addressing his prescriptions to Blackstone and those who might have been

influenced by him. Such normative positivists would prefer that theorists and commentators

be positivist for some instrumental reason, perhaps to motivate law reform efforts more

effectively, or perhaps just to aid in clarifying their thought. Still, the normative posture is one

of urging theorists and commentators to choose, promote, endorse, or encourage positivism

for reasons other than descriptive accuracy.

52

See above, op. cit. note 35. 53It would be extravagant to suppose that this plea would have any direct or immediate effect, but the same could be said about the normative voice in almost all of moral and political philosophy. The enterprises of normative moral, political, and legal philosophy are premised on the belief that philosophical progress might eventually and cumulatively translate into social change, but only the delusional participants in these enterprises believe that such change will take place in the short term or as the result of the efforts of any one theorist.

19

Because normative positivism and one dimension of decisional positivism are normative

postures, it is thus important to situate the normative voice in the various versions of these

approaches. No particular voice, or standpoint, is necessarily superior to any other, but it is

difficult to understand any normative position, including the normatively-focused positivisms I

discuss here, without comprehending the source, the target, and the subject of the

prescriptions being discussed.

IV. BENTHAM’S AGENDA – AND AUSTIN’S TOO

Before delving into philosophical issues of conceptual priority and causation, it is

worthwhile pursuing a largely historical inquiry. Thus, we know that Bentham subscribed to all

three dimensions of positivism described above, although of course he never labeled any of

them “positivist.” Labels aside, however, there is little doubt that Bentham subscribed to the

separation of law and morality, believing that the existence and identification of a norm as a

legal one was to be distinguished from its moral status or desirability. Moreover, Bentham was

not only committed to the separability of law and morality, he believed that morality and

positive law were in fact separate, even if, to his constant annoyance, people often failed to

recognize it. What it means for law and morality to be separate is frequently contested and far

from straightforward, but there is little doubt that Bentham saw law and morality as distinct

domains of thought. And thus if we seek to characterize Bentham in terms of the versions of

20

positivism described above, the conclusion that Bentham was a conceptual positivist should

attract little disagreement.54

But Bentham’s conceptual positivism was not a function of disinterested observation,

and nor, to a significant extent, was Austin’s. Both were normative as well as55 conceptual

positivists by virtue of believing that there was a non-descriptive point in separating law from

morality, and that point was to facilitate the reform of the law. Bentham was of course a

vehement critic of existing law, both in detail and in the large. The common law was for him

anathema, as was judicial legislation and the entirety of the law of evidence,56 and these

examples demonstrate the scale the scale of Bentham’s critique. His objections to English law

went to large blocks of it – perhaps all of it – and separating what law is from what law ought to

be, and thus separating law and morality, was essential to Bentham’s aim of reforming the

substance and structure of the English legal system. Moreover, and of particular relevance in

54

I bracket the interesting methodological question of whether conceptual and normative positivism are mutually exclusive. If the conceptual positivist believes that there is a pre-existing concept that can be described without having or presupposing normative commitments, and if the normative positivist believes that constructing a concept of law must be based on normative considerations, then the two are incompatible. But if one believes that concepts can be created for normative reasons without themselves being normative, or if one believes that people can have normative reasons for identifying and stressing non-normative concepts, then normative and conceptual positivism can co-exist, and that modest claim is all that I make about Bentham here. 55

The “as well as” is important. Coleman warns against “confusing” legal positivism with “programmatic or normative interests certain positivists, especially Bentham, might have had,” “Negative and Positive Positivism,” op. cit. note 3, but I do not deny that conceptual and normative positivism are different. I will presently challenge Coleman’s claim that only the former is entitled to be called “positivism,” and question his view that the latter (note the word “might”) is contingent and secondary, but I freely acknowledge that the two are different. 56

See William Twining, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicolson, 1985).

21

the present context, Bentham’s normative agenda was not subsidiary to his conceptual or

descriptive program. On the contrary, it was his normative agenda that drove the importance

of distinguishing law as it is from aw as it ought to be. In terms of motivation – which is of

course not the same as logical or conceptual priority – there is little doubt that Bentham’s

conceptual positivism was developed for normative reasons.

Things are not so clear with respect to Austin, who plainly had some purely descriptive

goals. But Austin also had an extensive law reform agenda,57 described the advantages of

distinguishing the legal is from the legal ought for reasons other than descriptive accuracy,58

believed that his normative law reform positions were facilitated by his theory of law and that

his theory of law flowed from his utilitarianism,59 and in his later writings on codification

showed an especially strong normative side.60 Moreover, there is reason to believe that

Austin’s reputation as non-normative has been fueled, in part, by the less normative goals of

57

See Rumble, The Thought of John Austin, op. cit. note 54. 58

Rumble, ibid. 59

“Analytical positivism rests, first, on the command or imperative theory of law – that that is law which is laid down by duly constituted political authority – in the case of England, by the sovereign Parliament – and that only that is law. From the command theory of law is derived a normative proposition that judges have no business making law, for that is the business of the legislature and it would be usurping the legislator’s functions for the judges to do so.” Edward McWhinney, “English Legal Philosophy and Canadian Legal Philosophy,” McGill Law Review, vol. 4 (1958), pp. 213-41, at p. 226 (emphasis added). Although disagreeing with McWhinney that Austin denied the existence of judicial legislation, Austin’s biographer W.L. Morison does not take issue with the claim that the foregoing claim about the derivation of a view about adjudication from Austin’s central descriptive and conceptual claims applies more to Austin than to other nineteenth century analytic philosophers of law. W.L. Morison, “Some Myth About Positivism,” Yale Law Journal, vol. 68 (1958), pp. 212-233. 60

Austin, Lectures on Jurisprudence, op. cit. note 42.

22

some of his successors – Thomas Erskine Holland, especially – whose expositions of Austinian

ideas stripped away the normative aspects that for Austin co-existed with the descriptive.61

Turning from normative to decisional positivism, and returning to Bentham, we see

that his proposals for reform reveal him also to be a decisional positivist. Embodying his well-

known scorn for judges, Bentham became a champion of codes, of the civil law, and of a system

of law in which judicial discretion was minimized. It was a feature of Bentham’s legal codes,

therefore, that they attempted to preclude judges and other legal decision-makers in individual

cases from making political, policy, economic, or moral judgments. Judicial decision-making

was limited, if it had to exist at all, to the application of linguistically clear codes to particular

events, with legal outcomes to be reached almost entirely by applying the ordinary meaning of

the terms in the legal codes to the facts of particular cases. Determining moral questions was

simply not part of the process.62

Austin was more sympathetic to judicial legislation than Bentham, but not much more.

They did differ sharply on whether judicial legislation existed and whether it was part of law

properly so called, with Austin believing in the existence of judicial legislation and its status as

law,63 while Bentham denied that judicial legislation was entitled to be called law at all. With

respect to the desirability of judicial legislation, however, Austin’s views shifted over time. In

61

See Morison, op. cit. note 54, at p. 152. 62

This crude and simple characterization of Bentham’s view about judging does not capture the far more sophisticated and nuanced position in Postema, op. cit. note 11, but it is sufficient here simply to stress Bentham’s overall skepticism about the virtues of judicial power. 63

By virtue of legislative authorization, Austin believed.

23

the Province of Jurisprudence Determined, he says very little about judging or judge-made law,

but does describe it as “highly beneficial and even absolutely necessary,”64 even while criticizing

judges for legislating in a “timid, narrow, and piecemeal manner” and “legislating under cover

of vague and indeterminate phrases.” But by the time Austin turned his attention more directly

to codification, he not only wrote extensively in support of legislative codification generally, but

also described it as “expedient,” especially in light of the “evils inherent in judiciary law,” evils

he discussed at some length.65 The view that Austin was not critical of judicial legislation thus

does not stand up to an examination of Austin’s writings, nor to his active promotion of, and

involvement in, the codification movement which flourished during his life. Austin supported

codification, believed that judicial and parliamentary legislation should be specific and

discretion-limiting, and, most importantly, believed that judicial legislation could and should be

diminished were Parliament to legislate more clearly, precisely, and comprehensively. Unlike

Bentham, Austin did not believe that judicial legislation was not really law or that it could be

eliminated entirely. And, again unlike Bentham, Austin believed that codification should

consolidate and clarify existing legal principles, rather than starting anew. But if normative

decisional positivism is the view that the legal system should be structured so that both the

subjects of the law and the legal decision-makers who apply, interpret, and enforce it need

have little recourse to morality (or policy, for that matter), then Austin plainly qualifies as a

64

Austin, Province, op. cit. note 4, at p. 163. 65

Austin, Lectures on Jurisprudence, op. cit. note 42, pp. 108-35 (¶¶ 932-969)(Lecture XXXIX, parts I & II).

24

decisional positivist, being far closer to Bentham than to the celebrants of the common law,

whether in his time or now.

V. THE CORE COMMITMENTS OF LEGAL POSITIVISM

We are now in a position to identify and summarize the areas of common ground and

those of disagreement. It is clear that Bentham and Austin, among others, subscribed to

conceptual positivism, normative positivism, and decisional positivism. That this is so as

historical fact is typically not denied by those who resist understanding both normative and

decisional positivism as genuinely positivist. Rather, the critics insist that normative and

decisional positivism (or any other view about adjudication) are simply contingent or accidental

features of the thought and work of Bentham and Austin.66 Only conceptual positivism, they

insist, lies at the genuine core of legal positivism. For the critics, legal positivism is a descriptive

claim about the concept of law – about the nature of law – often taking the form of some

version of the Separation (or, better, Separability) Thesis67 -- the view that law and morality are

conceptually separate (or, to some, separable).68 The fact that Bentham, Austin, and Hart also

66

“Legal positivism makes a conceptual, or analytic claim about law, and that claim should not be confused with programmatic or normative interests certain positivists, especially Bentham, might have had.” Coleman, op. cit. note 8, at p. 11. 67

And/or some variety of the Social Thesis (or, occasionally, the Sources Thesis), the view that what counts as law is a question of social fact. Leiter, op. cit. note 8, at p. 1141; Raz, “Legal Positivism and the Sources of Law,” in Joseph Raz, The Authority of Law: Essays in Law and Morality (Oxford: Clarendon Press, 1979), pp. 37-52. 68See, for example, Brian H. Bix, “Legal Positivism,” in Martin P. Golding & William A. Edmundson, eds., The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell Publishing, 2005), PP. 29-49, at p. 31: “Legal positivism is a theory about the nature of law, by its self-characterization a descriptive or conceptual theory. By its terms, legal positivism does not have consequences for how particular disputes are decided, how texts are

25

believed that certain political, moral, and institutional design advantages flowed from

understanding law in this way was little more than a fortunate side-effect of identifying the

reality of the separability of legality and morality in the concept of law. And the fact that

Bentham and Austin were supporters of codification and a limited domain conception of legal

decision-making was again only a coincidence, or, more fairly, a feature of their thought not

analytically connected with their positivism.

But what kind of claim is the claim that conceptual positivism – or a claim about the

nature of law -- is the core commitment69 of legal positivism? This remains hazy, because there

are different notions of what it is for something to be at the “core.” The core, after all, is a

spatial metaphor often ill-suited to capture notions of salience, importance, or theoretical

centrality, which is why it is not self-evident that the core is the most important part of an

apple or the most scientifically significant part of the planet Earth. To say that something is at

the core in a non-physical way is thus to make an instrumental claim in need of further

clarification. If the claim is historical, and if locating the historical core of positivism is largely an

inquiry into motivation, or into the importance or salience of a particular question for particular

interpreted, or how institutions are organized.” Bix goes on to say that positivism does not have anything to say “about how certain ways of operating . . . should be evaluated or reformed.” Ibid. Also, “Positivism is a theory of law, while formalism is a theory of adjudication. If positivism is one’s theory of law, nothing substantial follows about one’s theory of adjudication.” Leiter, op. cit. note 8, at p. 1149. 69

Characterizing the issue in terms of the “core commitments” of legal positivism is ubiquitous. See, for example, Kenneth Einar Himma, “Substance and Method in Conceptual Jurisprudence,” Virginia Law Review, vol. 88 (2002), pp. 1119-1227, at p. 1152; Andrei Marmor, op. cit. note 8, at p. 685; Scott Shapiro, “Law, Morality, and the Guidance of Conduct,” Legal Theory, vol. 6 (2000), pp. 127-53, at pp. 127, 129.

26

people, then, as discussed above, it is difficult to deny that decisional or normative positivism

and not conceptual positivism is the “core” commitment of legal positivism, at least as

understood by Bentham, Austin, and most others of their generation.

Those who claim that conceptual positivism is the historically core commitment of

positivism might derive some degree of support from Austin’s occasionally more exclusively

descriptive motivations, but their claim is typically a philosophical and not a historical one.

More specifically, those subscribing to the view that the core commitment of legal positivism is

a conceptual claim about separability make much of the fact that conceptual positivism is a

necessary condition of both normative and decisional positivism, and is consequently logically

and philosophically prior to them. Against this view, Waldron has insisted that the only

conceptual positivism presupposed by normative positivism is a thin one accepted by Aquinas

and Austin alike and well beyond controversy.70 And Postema argues that treating conceptual

positivism as the necessary condition of normative positivism rests on a view of concepts and

language that fits poorly with the social nature of concepts in general and the concept of law in

particular.71 Waldron and Postema may well be correct, but to make things as difficult as

possible for my own conclusion let us assume that their arguments are unsuccessful and that

the possibility of a conceptual separation of law and morality is a logical prerequisite for

normatively urging the conceptual separation of law and morality; and let us also assume that

the (actual) conceptual separation of law and morality is a logical prerequisite for advancing the

70

Waldron, op. cit. note 12. 71

Postema, op. cit. note 11.

27

kind of adjudicative regime that Bentham, Austin, and others have urged. Thus I assume that

the three varieties of positivism sketched above are in a logical and linear relationship to each

other, with conceptual positivism being a prerequisite for both normative and descriptive

positivism, and normative positivism being also a prerequisite for decisional positivism. The

question then is whether, as a matter of philosophy and not of history, the first should be

treated as the core of legal positivism and the second and third as mere contingent offshoots

not entitled to the designation “positivist” at all. If the truth of conceptual positivism is a

necessary condition for the truth – or falsity -- of normative positivism, and so too, mutatis

mutandis, for decisional positivism, then conceptual positivism is the core of positivism, with

normative and decisional positivism being, at best, positivism by derivation, positivism by

analogy, or simply perversions of positivism.

This argument assumes that when one thing is a necessary condition for another then

the former is the core concept and the latter is merely contingent. But why should that be so?

Consider the theory of natural selection. In order for natural selection to be correct, there must

exist a mind-independent physical reality. That form of epistemic objectivism, controversial in

some circles, is a necessary condition for the evolutionary theory of natural selection, but to

describe the claim of a mind-independent physical reality as the core commitment of the

theory of natural selection, rather than simply a precondition or presupposition of it, misses the

point of the entire theory. Even though the theory of natural selection, like any other scientific

theory, is a descriptive one, a descriptive theory – or account – has a point, and we lose the

point of a descriptive theory if we treat it is subservient to the sometimes contested facts and

theories that are preconditions of its plausibility. Conceptual analysis may well be logically

28

prior to evaluation, as David Lyons argues in this context,72 but it is hardly clear that what is

logically prior is more important or closer to some “core.” For that we need further argument.

Not only is it not apparent that preconditions are more central than what they are

preconditions of, but it is also not obvious that logical relationships are more important than

other types of relationships. It is true that the relationship between conceptual and decisional

positivism is neither logical nor conceptual. A conceptual positivist could well reject what I call

decisional positivism and he calls formalism. More importantly, one could believe that law and

morality are conceptually distinct and that legal decision-makers should make decisions on the

basis only of the former, but one could also believe that law and morality are conceptually

separate but that legal decision-makers should draw on both in making their decisions or

should allow morality to trump positive law in cases of conflict. It is thus true that conceptual

positivism as an account or theory of the nature of law in no way entails any view about what

judges or other legal actors should do.

But why is logical entailment the correct kind of relationship to expect? It is true that A

being a necessary condition of B does not mean that A logically entails B. And thus the fact that

conceptual positivism is a necessary condition of decisional positivism does not deny that it

could be a necessary condition of some alternative to decisional positivism as well. To say that

conceptual positivism is the core commitment of positivism because it is a necessary condition

of both decisional positivism and decisional non-positivism is to make the evaluative judgment

72

David Lyons, “Founders and Foundations of Legal Positivism,” Michigan Law Review, vol. 82 (1984), pp. 722-39.

29

that identifying the precondition is more important than the decision between the two

consequences, but that determination is hardly logically compelled.

Moreover, there is no reason to believe that logical relationships are necessarily more

important than empirical ones. Suppose, for example, that judges contingently internalized

something we might call the legal point of view or legal consciousness. Were that the case,

then as an empirical matter such judges might be more inclined to make decisions entirely on

the basis of positive law in a society with a positivist concept of law than in one with a natural

law concept. This relationship would be neither logical nor conceptual, but the contingent

empirical connection between the two might explain associating the two in a relationship of

probabilistic causality.

There are other types of relationships that might exist as well. John Gardner, for

example, argues that the core commitments of positivism are those shared by Hobbes,

Bentham, Austin, Kelsen, and Hart,73 and secondarily by Coleman and Raz, but it is again curious

as to why that which is shared by these admittedly major figures in the positivist tradition

should be considered the core commitment positivism. If we can associate certain

commitments with some but not all of those figures, are those commitments less important

than the ones that all share? Moreover, other commitments – those of normative positivism,

for example – are shared by Hobbes, Bentham, Austin, MacCormick, Waldron, Postema, and

conceivably (at least according to Waldron) Raz,74 among others. So the question is then

73

Gardner, op. cit. note 48. 74

Or at least this is the interpretation of Raz offered by Waldron, op. cit. note 12, at p. 412 no.7.

30

whether the commitments shared by some stalwarts of the positivist tradition but not others

are the most important, and then we cannot avoid deciding why it is we want to know, as

opposed to identifying by fiat the figures whose shared commitments are the most important.

Indeed, if we put aside Kelsen and limit our inquiries to the English-language analytic tradition,

the only figure on Gardner’s primary list who is not associated with normative positivism is

Hart, which is not only debatable, but brings us back to the beginning, and back to the question

whether Hart’s understanding of legal positivism should be considered uniquely authoritative

as well as exclusive.

Moreover, perhaps the relationship between conceptual and decisional positivism is

historical, psychological, or analogical. Or perhaps it is simply that the questions and issues

posed by normative or decisional positivism are at some times and not others more important

than those posed by conceptual positivism, although I emphasize the “perhaps,” and make no

actual claim about relative importance here. Rather, I seek only to show only that even if

conceptual positivism is a logical prerequisite for normative or decisional positivism, nothing

about which lies at the core and which is at the fringe flows from that fact. And since the

alleged priority of conceptual positivism follows even less historically than philosophically,

there is no reason, at least on the basis of the existing arguments, for treating normative and

decisional positivism as less entitled to the positivist mantle than conceptual positivism.

VI. CONCLUSION: ON THE DIVERSITY OF JURISPRUDENTIAL INQUIRY

The question is not whether conceptual legal positivism is true is a theory of the nature

of law. Rather, it is whether the question to which conceptual legal positivism is the answer is

31

the most important75 question to be asked about law. It was not for Hobbes, it was not for

Bentham, and it may not have been even for Austin. But that is not to say it is not important.

Still, if we accept that there are other important questions, that those questions were central to

many of the major figures in a positivist tradition that long predated Hart, and that some of

those questions are important to us now,76 we should worry about a definition of legal theory,

or of the jurisprudential enterprise, that treats those other questions as less important, or even

less important to those who have the philosophical skills to illuminate them.77 Many of these

questions have arisen in the positivist tradition, and if there is a definition of positivism that

excludes from serious philosophical inquiry questions that were originally part of the tradition,

and that were prominent in the thinking of many of the great historical figures of that tradition,

then there are ample grounds to foster an understanding of the positivist tradition that does

not cut off access to the questions that the tradition has thought important.

75

I emphasize that I do not take “important” to be synonymous with “practically important.” There are philosophically important questions that have little or no practical or immediate importance, and there is no reason at all why philosophers of law should not treat such questions as worthy of their attention. 76

See Kent Greenawalt, “Too Thin and Too Rich: Distinguishing Features of Legal Positivism,” in Robert P. George ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), pp. 1-30, observing (p. 14) that the question of what is true about law in all possible legal systems “does not seem very important for understanding the legal systems under which we live.” 77

Leslie Green properly warns against taking current interest to legal practitioners as a necessary condition for fruitful jurisprudential inquiry. Leslie Green, “General Jurisprudence: A 25th Anniversary Essay,” Oxford Journal of Legal Studies, vol. 25 (2005), pp. 565-80, at p. 580. But my claim here is different from the claim of Dworkin and others who appear to take the view to which Green properly objects. Unlike Dworkin, my plea with respect to a certain form of conceptual jurisprudence is not against its value, but only against its hegemony.

32

Thus, it is emphatically not my argument that either or both of normative and decisional

positivism are preferable to conceptual positivism, or in any way more genuine, or somehow

more entitled to be called “positivism.” My claim is far more modest. It is only that both

normative and decisional positivism have their roots well planted in the positivist tradition, no

more but no less than conceptual positivism. Nor is there any reason to suppose that one

more than the others lies at some supposed core of legal positivism. All are important for some

purposes and less so for others, and little would be lost if we were to recognize that we have

inherited from the positivist tradition a multiplicity of positivist views, each of which have their

virtues, and each of which have their purposes.

documento para el ciclo _seis autores

Documents