Brian Leiter's Legal Philosophy Blog

Some questions and doubts about Greenberg's "Moral Impact Theory of Law"

(The following grew out of a discussion with two Chicago students doing an "independent study" in advanced general jurisprudence:  3L Courtney Cox and 2L Phil Smoke.  They are not responsible for what follows, but I was helped by discussing the paper with them.)

Mark Greenberg (UCLA) has recently published a paper that synthesizes some of his earlier work and articulates his positive view in some more detail than previously.  He calls his view "The Moral Impact Theory of Law," though for reasons I will make clear, I'm not sure this amounts to a theory of law except in some odd stipulative sense.  (I will note my agreement with the criticisms articulated by Brian Bix [Minnesota], especially his observation that it is not controversial that the actions of legal officials can alter our moral obligations, but it is controversial, and unmotivated, to say that only the resulting moral obligations are the actual content of the law.  I will try not to belabor that point, but rather to raise some other doubts.)

A few preliminary observations:

1.  It's unclear what the criteria of success are for a theory of law on Greenberg's view.  Positivists from Hart onwards wanted to do some justice to ordinary or commonly shared ideas about law, making explicit what was inchoate and correcting various tensions in ordinary thought and talk about law.   (See the discussion in Langlinais & Leiter.)  It's plain that this is not Greenberg's criterion.  Indeed, he specifically disowns considerations of "English usage or even lawyers' intuitions" (1338), and he has to since he claims that on his view "the law can never include truly evil norms," among other wholly counter-intuitive claims (1337).  He says that a "true" theory can have "counterintuitive consequences," and justifies that by noting that "a great deal fo what we now think about the world and about human beings would once have been thought to be absurd" (1338).  That's true, but we know roughly what the criteria of success were for counterintuitive physical, biological and psychological theories, e.g., their explanatory and predictive power.  Greenberg's view has no explanatory power as far as I can see (it obviously does not aspire to predictve power).  I return, below, to what little he says about the supposed virtues of his theory (see [B], below).

2.  Greenberg's view depends on a quite extravagant form of moral realism, which is undefended (and, in my view, could not be defended).  And this extravagant and undefended moral realism leads him to say things like:  "it is a general moral truth that, to the extent that people have equal opportunity to participate in procedures of governance, they acquire moral reasons to comply with the decisions that are reached through those procedures" (1313).  That this "general moral truth" is contested by many political philosophers does not give Greenberg pause.  I was also genuinely shocked to see Greenberg say "that much of our concern with law presupposes that...[moral] skepticism [or anti-realism] is false" on the grounds that the anti-realist believes that "people have interests and desires and wield raw power, but there is no reason to be concerned with unfairness, inequality, cruelty, or injustice" (1308 n. 43).  As fraudulent libels of moral anti-realists go, this one is at the head of the class!  I have to wonder whether bad student editing played a role in this strange footnote.

3.  Greenberg repeatedly makes claims about the "functions" of law and about law's "nature," but offers no defense of them, no explanation of how it is an artifact can have essential functions or even a nature.  Claims about what seems "natural" or "plausible" or "intuitive" do far too much work in this paper, and most of the claims said to be "natural" or "plausible" or "intuitive" do not seem to me to be anything of the kind:  they range from the idiosyncratic to the debatable.  (A partial catalogue of some of the astonishing, and undefended, claims of this kind:  "it is part of the nature of law that a legal system is supposed to change our moral obligations to improve our moral situation" [1294]; "a legal system, by its nature, is supposed to change the moral situation for the better" [1322]; while allowing that, in fact, "it is controversial what the functions of law are, or even whether law has functions" [1339] he then claims "for purposes of argument" that "settling disagreements is an important function of law" [1339] and that it is "at least as plausible" that law's other functions include "that government coercion is used only in accordance with past political decisions," that law is "acting for the public good," and (of course) "improving our moral situation" [1339].)

 Now some more specific questions and doubts:

A.  Greenberg claims that most theorists accept "the Standard Picture" according to which "the content of the law is primarily constituted by linguistic (or mental) contents associated with the authoritative legal texts" (1296) or, later, "working out an appellate decision's contribution to the law [is] a matter of identifying an authoritative text...and then extracting its linguistic content" (1316).     In fact, I can not think of any theorists who accept "the Standard Picture" so defined.  Greenberg's confused criticism of legal positivism brings this out.  Greenberg writes:

[L]egal positivism does not specify how social facts determine the content of the law.  To say that the content of the law is determined, at the most fundamental level, by social facts alone does not yet tell us, for example, how statutes contribute to the content of the law.  One manifestation of this gap is that positivism by itself does not yield an account of statutory interpretation--of how to discover a statute's contribution to the content of the law.  (1298)

In fact, it is precisely a virtue of the positivist theory that it does not answer this question generally, since what counts as proper statutory interpretation varies by legal system:  among the pertinent facts in a given legal system are often facts about what ways of extracting content from statutes are permissible.  By contrast, Greenberg's view simply supplants whatever the local norms of statutory interpretation are in favor of a one-size-fits-all-model that claims "the question of legal interpretation" is always "what is morally required as a consequence of the lawmaking actions" (1303)--or later, "the contribution of a statute to the content of the law will depend on the on-blanace best resolution of conflicts between moral considerations" (1330)--views of statutory interpretation that are, I would venture, unrecognizable to most judges in most legal systems.

It bears noting, by the way, that even on Greenberg's view "the linguistic content of...texts is...one relevant consideration" in figuring out "the moral impact of" what the legal institutions have done (1303) and, indeed, he argues later that in some circumstances "the linguistic content of directives will be morally binding" (1315).  

B.  Greenberg adduces a few considerations that purportedly favor the "Moral Impact Theory" as a theory of law, rather than of something else.  First, he says, "it is plausible [there's that word again!] that moral reasoning has a place in legal interpretation" (1304).  Everyone agrees that moral reasoning has "a place in legal interpretation," what is in dispute is whether that place is necessarily required by the law.  Second, Greenberg says, "legal systems treat legal obligations as genuinely binding obligations that are generated by the legal institutions" and claims his view "vindicates this treatment," whereas the positivist theory allows that "it can be true that one has a legal obligation despite the fact that one has no [genuine] obligation" (1304).   I take it "genuine" means "moral obligation."  Assuming that, Greenberg gets it exactly backwards:  it is a virtue of a theory of law that it does not entail that every legal institution's claim to have generated a genuine obligation is vindicated.  Disabusing people of the false notion that the law's commands are morally obligatory is both a practical and theoretical virtue of the positivist theory, as Hart noted long ago (cf. The Concept of Law, 207-212).  Third, Greenberg says his view "makes it easy to explain our dominating concern with law" (1304) since, "If the legal institutions change what we are obligated to do, it is vital to work out that change" (1305).  But this just returns us to Bix's point:  it is true on everyone's view that what legal institutions do may affect our moral obligations, and that is one reason for being concerned with law.  There are other reasons we are concerned with law, and other more obvious ones I would say:  for example, the law can help us pursue our goals; the law may sanction us if we act in certain ways; and so on.  All these mundane reasons for being interested in law are consistent with the positivist theory.

C.  Greenberg is aware that his view, even as an account of a stipulative sense of "law," makes it puzzling what a legal institution is:  it can't, obviously, be an institution created by the law, since the content of the law is just the moral obligations that result from what pre-existing legal institutions do.   Greenberg takes the issue up at 1323 ff., but tells us very little.  He notes, consistently with his earlier ex cathedra pronouncements, that it is "a necessary condition on a legal institution...that it be an organization that, by its nature, is supposed to improve the moral situation" (1324).  One might think that is also true of, e.g., religious institutions, universities, reformatories, hospitals, and many other "organizations."  Greeneberg recognizes that this "necessary condition" radically underdetermines what a legal institution is, but then invokes the fact that there is "a great deal of consensus about which institutions are legal institutions" (1325)  That's true, something that positivist theories actually explain.

Priel on "Towards Classical Legal Positivism"

Dan Priel (Osgoode) has posted a draft of this paper on SSRN.  I assume it's an early draft, since there's lots of rhetorical excess and overreaching, and associated carelessness, but there is a core idea that is interesting and prima facie plausible and deserves attention and development. 

The idea is this:  the "classical" positivists like Hobbes and especially Bentham "saw theorizing about law, just like theorizing about morals, as part of theorizing about nature and about human nature in particular" (4), and in this respect, they have much more in common with both contemporary and classical natural law theorists.   By contrast, contemporary legal positivists (Hart and progeny) do not have developed views of nature and human nature which inform their defense of positivism as a theory of law.   Priel sometimes overstates this, since I assume we know, by now, that Hart operated against a background set of metaphysical assumptions (a kind of moral anti-realism, non-cognitivism about moral semantics, some views about human nature apparent in his conception of the 'minimum content of natural law' and so on), but it is certainly right that the core defense of the positivist theory is that it explicates what the "ordinary" man familiar with the "modern municipal legal system" knows about law, however inchoately:  in that regard, it is a legacy of the approach to philosophy prevalent in England at the time Hart wrote.   Priel is sometimes weirdly dismissive of this project (it is mere "empirical observation or a linguistic stipulation" [20], and he reduces it, wrongly, to a mere concern with questions of 'legal validity'), but he's certainly right it's rather different than Bentham's approach (Priel, 7-9), which assumes the truth of psychological hedonism, and then proceeds to evaluate rules, legal or 'moral,' on the basis of how well they maximize pleasure or pain.  The separability thesis, on this way of looking at things, is essential for the normative project of opening up the law to utilitarian criticsm.  This isn't quite how Priel puts thing, but I think this is the jist of the idea.  There's some unclarity about the precise connection between the theory of human motiviation and the positivism in Priel's presentation, but I think he's right to understand Bentham's legal positivism as a complement to the theory of human nature (unfortutanely, a false theory of human nature, which might, of course, give someone pause about this kind of approach).   So Priel's paper invites us to ask:  what might a theory of law look like that tries to locate it within a broader picture of what the world, and people, are really like?  Natural law theory proceeds that way, so too classical positivism (as Priel argues), and so, too, one might add Scandinavian Realism in some measure, though without a theory of human nature, per se.

I'll leave to others to correct some of the rhetorical excess and careless of the current draft of the paper, and just focus, for obvious reasons, on the surprising discussion of my views at 21-24--surprising, in part, because Priel is often sympatico with my views in his other work, but here makes such a hash of what I've written that I'm not sure what to think.  It's just false (indeed, obviously false) that I try "to ground legal positivism on metaphysical grounds similar to those of Hobbes and Bentham" (21).  Hobbes and Bentham have views about human nature; I do not suggest that a view about human nature supports legal positivism, but rather that a view about correct philosophical methodology (methodological naturalism) does, as an a posterioi matter. 

Priel, however, expresses the bizarre view that methodological naturalism in my sense "is either uninteresting or false" (22).  Certainly proponents of a priori methods in philosophy don't think the naturalist challenge is "uninteresting," though they would agree it is false!  Priel thinks that scientific method involves "drawing inferences only if they follow logically from the data or if they are supported by statistically significant evidence" (22).   We've learned the lesson over the last forty years that methods that work in the various sciences are not unitary, but no one, of course, thinks they are exhausted by this characterization, which puts no constraint on what counts as data, the methods by which we ascertain epistemically relevant data, and what inferences are warranted from such data.   The discussion that follows is such a mess I'm not sure where to begin.  But when Priel arrives at the conclusion that "there is no purely 'philosophical' argument, becuase there is no pure 'philosophical' domain," he sounds, alas, like my methodological naturalist.  But Priel thinks this shows naturalism is substantive not methodological, even though no substantive thesis about what there is or what we know is on offer.  I hope Priel will simply purge these pages from the final version of the essay, since they are confused and irrelevant to the interesting, 'core' idea, discussed above.

The Internal Point of View Strikes Again!

From The New Yorker, July 11 & 18, 2011, "The Financial Page:  Dodger Mania," about corruption and tax cheats in Greece:

Greek citizens also have what social scientists call very low "tax morale."  In most developed countrie, tax-compliance rates are much higher than a calculation of risks would imply.  We don't pay our taxes just because we're afraid of getting caught; we also feel a responsibility to contribute to the common good.  But the sense of responsibility comes with conditions.  We're generally what the Swiss behavioral economist Benno Torgler calls "social taxpayers":  we'll chip in as long as we have faith that our fellow-citizens are doing the same and that our government is basically legitimate.  Countries where people feel that they have some say in how the state acts, and where there are high levels of trust, tend to have high rates of tax compliance.  That may be why Americans, despite being virulently anti-tax in their rhetoric, are notably compliant taxpayers.

 

This blog coming back to life (a bit)

I'm going to transfer content from the old legal philosophy blog that still seems to me of interest (I'll skip all the polls and non-substantive items), and will periodically use this site as a place to make notes to myself about issues that come up in my work.   I do find myself going back to some of the substantive discussions on the old blog (ones I'm moving here), so the value of a public sketch pad like this is apparent to me.  Hopefully it will provide some material of interest to others as well.

On Raz's Claim that an Authoritative Directive Must be Someone's View about What Ought to be Done

(These thoughts were prompted by an extremely acute question in jurisprudence by Lisa Christensen Gee, a 2L here at Chicago.)

I was teaching for the umpteenth time Joseph Raz's important 1985 paper "Authority, Law, and Morality" (ALM) from The Monist.   Dialectically, it comes in as follows in the basic jurisprudence course I teach.   (I will give a rather condensed summary, since the issues will be familiar to most readers.)   Dworkin claims that there are some "principles" (in Dworkin's technical and idiosyncratic sense) that are legally binding not in virtue of their pedigree, but in virtue of their content.   Hart agrees, but claims that this is just a contingent fact about the rule of recognition in certain legal systems, i.e., systems like the Anglo-American in which officials do sometimes treat moral considerations as criteria of legal validity--hence Hart's "Soft Positivism."  Raz thinks this is a mistake, since it is part of the concept of law that all law claims authority, and that there are two non-normative prerequisites of claiming authority that are incompatible with the Soft Positivist response:  first, an authoritative directive must express someone's view about what ought to be done (what I'll call the "Agency" prerequisite); and second, the authoritative directive must be intelligible to the subject without recourse to the very dependent reasons in which the directive was supposed to be based.

In ALM, Raz has a somewhat idiosyncratic characterization of Soft Positivism in the form of the "Incorporation Thesis," and then criticizes Dworkin's view under the heading of the Coherence Thesis.  Since Hart, of course, thinks that Dworkin's view is just a case of particular jurisprudence about the Anglo-American legal systems, one consistent with Hart's own Soft Positivism, I usually have the students focus on Raz's authority argument against what he calls the Coherence Thesis.   What I'm particularly concerned with here is the Agency prerequisite for claiming authority.  Why is the idea that a rule of recognition (hereafter RR) might incorporate moral criteria of legal validity incompatible with the Agency prerequisite? 

Ms. Gee pointed out that a RR incorporating moral criteria of legal validity does indeed look like someone's view about what ought to be done (i.e., about how questions of legal validity ought to be decided):  namely, the view of the officials whose practice constitutes the RR (since the RR is just a social rule).   It's true enough there would still be a problem with respect to the second non-normative prerequisite, but the Agency prerequisite appears to be satisfied.  If officials apply moral criteria of legal validity, and think they ought to do so, then the moral criteria of legal validity in the RR reflect their view about how questions of validity ought to be decided.

That move isn't, of course, available to Dworkin's Coherence Thesis (as Raz makes clear), since of course Dworkin denies that an RR is even a necessary feature for the existence of a legal system.   According to Raz, Dworkin's view violates the Agency prerequisite because "according to him there can be laws which do not express anyone's judgment on what their subjects ought to do, nor are they presented as expressing such a judgment."   But notice that this objection holds against Hart's Soft Positivism:  for on the Soft Positivist view, some norms are legally valid because they satisfy a moral criterion, and even though they express no one's view about what ought to be done.   So Hart's Soft Positivism is incompatible with the Ageny prerequisite at the level of the norms that are legally valid, rather than at the level of the RR's claim of authority vis-a-vis officials.

 

Green on Legal Realism and Naturalized Jurisprudence

Via Solum, I learn that my (part-time) colleague Les Green's (long-gestating) paper on "Law and the Causes of Judicial Decision" is finally on SSRN (it will appear in final form in Green's forthcoming collection of papers from OUP).  I have a number of quibbles about Leiter interpretation (the most important is that I've noted since at least my 1996 essay on Realism for The Blackwell Companion to the Philosophy of Law and Legal Theory that Felix Cohen was guilty of the kind of conceptual rule-skepticism Hart attacks--though oddly Hart never cites Cohen), but the core challenge is an interesting and novel one. 

On my account, most Realists are committed to the claim that the law (more precisely, legal reasoning) proves to be indeterminate in most of the cases that reach the stage of appellate review.   This indeterminacy arises, on the Realist argument, from the fact that there exist equally proper but conflicting ways of interpreting authoritative sources of law (like statutes and prior court decisions) such that the same source can yield conflicting rules (think of Llewellyn on the canons of statutory construction and the strict and loose view of precedent).  (Jerome Frank is an exception to this generalization, since he thought the crux of indeterminacy in legal reasoning resided in the latitude judges have in characterizing the facts of the case in terms of their legal significance, and so he thought intedeterminacy was pervasive.  I bracket his idioynscratic views here.)  In Green's terminology, the Realists deny that at the appellate level, cases are governed by "mandatory norms," i.e., rules that impose obligations on the judges to decide the case just one way and not any other. 

But Green's challenge is:   on what grounds can we cabin the argument for indeterminacy just noted to only those cases that reach the stage of appellate review?  In fact, their arguments for rule-skepticism (for indeterminacy) ought to entail that there are no mandatory norms anywhere in the legal system.  And any theorist who denies that there are any mandatory norms is denying something H.L.A. Hart (among many others!) affirms.   So, contra my presentation, there is a significant incompatibility between the positivist theory of law and Legal Realism.  Green's proposed solution to the dilemma is to suggest that we should understand the Realists to indeed recognize that there are legal norms, but to hold that they are all only "permissive" rather than mandatory:  they provide easily defeasible reasons for decision, reasons that are often defeated at the appellate level, less often in more humdrum cases. 

 

Now the notion of a "permissive" legal source is interesting in its own right, but the question I need to answer is why the Realist arguments for the indeterminacy of legal reasoning, which they deploy to good effect with respect to tons of examples drawn from appellate decisions, do not in fact entail denying the existence of any mandatory legal norms.  Here is one possibility (I am here truly "thinking out loud," though this thought has some resonance with issues raised in the context of explaining theoretical disagreements):  even if, in principle, the same conflicting methods of interpretatino could be applied in non-appellate cases, in fact, they are not, and officials (more or less) converge on the same results.  So, in principle, all norms are merely "permissive" (in something like Green's sense), but in fact lots of legal norms act as if they are mandatory because of this fact about the actual interpretive practice of officials.

Perry on Raz, Authority and Anarchsim

I am grateful to those who turned out at 9 am on a Sunday morning (!!!) to an "Author Meets Critics" session at the Eastern APA on my book Naturalizing Jurisprudence (OUP, 2007) and especially to Thom Brooks (Newcastle), the organizer, and Stephen Perry (Penn), the commentator.  (Sadly, the other commentator, Ken Himma [Seattle Pacific] was taken ill, but you can get a sense of some of his objections to my work from the papers he has posted on SSRN, especially #4 and #13, which overlap in some measure.  Professor Himma is organizing a symposium issue of Law and Philosophy on my book, and I hope he will develop some of his critiques there.)

Stephen Perry's commentary raised a number of quite interesting issues about the right way to understand Raz's account of the authority of law and its compatibility with the kind of "descriptive" jurisprudence to which Raz and Hart (and me, in a different way) are committed.  When Professor Perry's paper is publicly available, I will try to address some of those issues, but for now I wanted to at least record one point on which I clearly misconstrued Perry in Chapter 6 of my book ("Beyond the Hart/Dworkin Debate:  The Methodology Problem in Jurisprudence").   In an earlier paper, Perry had written:  "If [the service conception of authority] is right, then the anarchist thesis that the state could never have the moral authority it claims is wrong."  I critiqued this as follows (p. 172 of my book):

Raz's account of authority is perfectly compatible with 'the anarchist thesis that the state [more precisely, the laws of the state] could never have the moral authority it claims,' because Raz's thesis is only that all laws (sincerely) claim moral authority, not that they actually have it.  The anarchist thesis, in Razian terms, is simply the claim that law always fails to satisfy the Normal Justification Thesis.  Nothing in Raz's theory of authority or of law precludes it.

What Perry meant, however, is that the anarchist thesis that authority is impossible is wrong if Raz's service conception of authority is plausible, and that's right:  the service conception of authority explains how someone can have a justified claim of authority over another (rational, autonomous etc.) person, which the (Wolffian) anarchist denies is possible.  It is true that the service conception of authority is compatible with the anarchist claim that no state ever has authority, but that was not, in fact, the anarchist thesis at issue for Perry.

Waldron on the Prohibition of Hate Speech

Jeremy Waldron (NYU) has a quite interesting piece about freedom of speech in the current New York Review of (Each Other's) Books.  (We've remarked previously on the general decline of the NY Review; one of the few bright spots lately have been Waldron's essays--one early piece of uncritical sycophancy excluded--which are refreshingly non-parochial and intelligent).  Unless you subscribe to the electronic edition, however, you'll have to get a hard copy of the May 29 issue to read the whole thing.  One of his most interesting discussions concerns laws prohibiting hate speech, which are common in other parts of the liberal West, but not in the U.S., whose more "libertarian" regime poses an obstacle to laws that would outlaw incitements to racial hatred and the like.   Here is Waldron (he is reviewing a book by Anthony Lewis):

Lewis's settled position, I think, is that we do better to swallow hard and tolerate "the thought that we hate" than open ourselves to the dangers of state regulation.  I am not convinced.  The case is certainly not clear on either side, and Lewis acknowledges that.  But it is worth remembering a couple of final points.

First, the issue is not thought that we hate, as though defenders of hate speech laws want to get inside people's minds.  The issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, perhaps the majority, members of another group are not worthy of equal citizenship....

Secondly, the issue is not just our learning to tolerate thought that we hate....The harm that expressions of racial hatred do is harm in the first instance to the groups who are denounced or bestialized in pamphlets, billboards, talk radio, and blogs.  It is not harm--if I can put it bluntly--to the white liberals who find the racist invective distasteful....The question is about the direct targets of the abuse.  Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?  Those are the concerns that need to be answered when we defend the use of the First Amendment to strike down laws prohibiting the publication of racial hatred.

This is well-stated, and rarely engaged with seriously in the American constitutional literature with which I'm familiar.  (It is never engaged with seriously in the libertarian "popular" literature:  one need only spend a bit of time perusing the Volokh Conspiracy blog for a good example of how lacking in basic imaginative empathy for those very different from themselves some academic libertarians are.)

On the other hand, there is a pertinent theme in the U.S. literature--usually associated with Fred Schauer who gave it a powerful articulation in his important 1983 book on the philosophical foundations of free speech (though it appears also in Mill a century before)--that deserves notice here:  namely, what Schauer called the argument from "governmental incompetence," namely, the worry that government is unlikely to discharge the task of prohibiting genuinely harmful speech responsibly.  Waldron acknowledges a version of this concern:

The worry here is that a government equipped with hate speech codes would become a menace to free thought generally and that all sorts of vigorous dissenters from whatever social consensus the government was supporting would be, as Lewis puts it, 'hunted, humiliated, punished for their words and beliefs.'

But as Waldron points out, there are two kinds of dangers here, not just one:

Surely public hysteria is a danger to be recognized on both sides of this debate--both when it manifests itself in repressive laws and when it manifests itself in the venomous denunciation of some vulnerable ethnic or religious group in times of anger or panic....Why should we think that there needs to be protection only against the first sort of hysteria and never against the second?

The worry about governmental incompetence, though, is a worry that government won't, in fact, provide protection "against the second" because governmental power is too readily co-opted for nefarious ends.  Certainly this familiar paranoid streak in libertarian thought is, if unchallenged, decisive, even allowing that Waldron has well-described the harm done by hate speech.  Should it, then, be challenged?

Waldron is from New Zealand, and was educated both there and in the U.K., where he also taught for a period of time.  His perspective is suitably cosmopolitan, and so he is no doubt familiar with the relative success of regimes regulating hate speech in cultures outside the American.  But a central question here is to what extent the broader cultural context is decisive in determining whether attempts to regulate hate speech will be successful or pernicious.  We have dealt with the issue before, in earlier postings about free speech in Canada (the latter with particular reference to the paranoid libertarian mindset).  As I wrote then:

Canada is, culturally, part of the the post-WWII European consensus based on the Nazi experience--namely, that naked bigotry, religiously motivated or otherwise, is a danger to humanity. Despite this, the quality of public dialogue in Canada and in Europe is much higher than in the United States: there is a greater diversity of views well-represented in the major media and in the political sphere. The explanation for this is plainly not the law--the law in these countries is in some ways, superficially at least, more restrictive of speech--but rather the social and cultural ethos and environment.

What works in Canada or Germany might not work so well in the plutocratic United States, where public power has, in so many domains, been surbordinated to private interests.  In responding, on the earlier occasion, to a representative paranoid libertarian who intoned that,

Albert Jay Nock once wrote, 'whatever power you give the State to do things for you carries with it the equivalent power to do things to you.' What continues to separate Americans from Canadians and Europeans is our general unwillingness to give the State the power to do things for us at the risk of it doing things to us.

I replied that,

What separates American from Canadians and Europeans is that the Americans have been conned, on a massive scale, in to being unable to identify or distinguish (1) between kinds of state power (e.g., the power to tax, to provide healthcare, to wage war, to run the secret police, etc.), (2) the risks they actually involve, (3) what the actual benefits of the different kinds of state power are, (4) what the risks are from private power unchecked by the state, and (5) how all those risks should be balanced against all those benefits. What distinguishes the Canadians and Europeans, in short, is that most of them would laugh out loud when served up childish bromides like Nock's.

But that being said, perhaps Nock's warning is apt in the American context?  What Waldron does not consider in his essay is that when a political and public culture is as morally corrupt, indeed bankrupt, as the American, the safest tact may be precisely the libertarian one. 

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Posted by Brian Leiter on May 24, 2008 in Legal Theory, Specific Jurisprudence | Permalink

Comments

...interesting stuff. It strikes me that people in the U.S. not only often fail to adequately distinguish the various forms of state power and their dangers and benefits, but also that this lack of distinction is, at least in the executive branch, institutionalized. In many other parts of the developed west, the roles of bureaucratic and ceremonial (not to mention military) heads of state are carefully distinguished. No one in the UK confuses the public roles of the queen and of the prime minister...as for your worries about the bankruptcy of political and public culture in the US, I think this worry might itself be subject to the sort of point you made to the libertarian: different parts of political culture are corrupt in different ways and to different extents, and the various branches of government bureaucracy likewise are not homogeneous in their dereliction. Finally, it seems to me as well that the US situation might need to be treated with distinctions made between the federal and the (relatively) strong regional (i.e. state) level political and governmental apparatus and culture.

Posted by: Ade Artis | May 26, 2008 12:46:09 PM

I object to the word "paranoia" rather than the standard "distrust" to indicate a crucial element of the American constitutionalist view of government. And the viewpoint that protects even hate speech is mainstream (American) liberal rather than only libertarian--not at all conned by treating all forms of state power (e.g., taxation as opposed to criminal prosecution) the same. Beginning with the Alien & Sedition Acts and continuing through the recent politicization of the Justice Department, there is much justification for distrust. Consider this not entirely unrealistic scenario if racial or ethnic/religious hate speech could be constitutionally criminalized: in a time of great fear, a law is passed criminalizing speech that attacks the integrity of the "American people." Rev. Jeremiah Wright's sermons may serve as an example of the kind of "hate speech" that might lead to prosecution. Our constitutional case law has grown in the safest direction: rather than leaving unpredictable political processes to balance the various dangers on the opposing sides of the argument (so well enumerated in the initial comment) there is to be no regulation of speech not imminently connected to such crimes as incitement to specific criminal acts. The "problems of the penumbra" will persist, of course, concerning how direct the connection between speech and criminal acts must be to justify government intervention. (Private suits can seek damages, but even here there must be specific acts alleged and some connection between speech and acts.) To allow government in the U.S. to use the criminal law to prevent the "pollution" of the "social environment" surely invites rather than merely risks the tyranny of either the majority or the politically powerful elites.

Posted by: Kenneth Henley | May 26, 2008 4:28:22 PM

The perspectives reflected in this post also surfaced during the drafting of the freedom of expression and anti-hate propaganda provisions of international human rights instruments. Those interested in this drafting history might be interested in the article "Molding the Matrix: The Theoretical and Historical Foundations of International Law and Practice Concerning Hate Speech." Available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886171

Two particularly thoughtful pieces I often recommend are Kevin Boyle's contribution "Overview of a Dilemma: Censorship versus Racism" in the book Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (Sandra Coliver ed., 1992), and Kathleen Mahoney's James McCormick Mitchell Lecture, "Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation," 37 Buffalo Law Review 337 (1988/89).

Posted by: Stephanie Farrior | May 27, 2008 3:47:04 PM

What you say about the realities of law and culture in the US and Canada is, I think, correct. The UK strikes me as a more troubling case, especially in the wake of its recent ban on religious hate speech: earlier this month, we saw a 15-year-old at an anti-Scientology protest served with a court summons and his picket sign confiscated because said sign expressed the view that Scientology is a "cult". (This was the same term used to describe Scientology in a recent UK court decision.) The charges were later dropped, but I hope commenters in the US take note of the way religious "hate speech" laws lend themselves to abusive prior restraint of political speech.

Waldron seems here to limit his discussion to "racial" hate speech (I haven't read the full article), but surely we're all familiar with the process by which criticism of, say, Israeli government policy is easily equated with hatred of the nation of Israel, and thence with hatred of the Jewish faith, and thence with hatred of the Jewish "race". Norman Finkelstein, certainly, is familiar with this process, as the Guardian reminded us yesterday in reporting his arrest and deportation from Israel as a consequence of his academic writing.

With examples like these springing up every week in the press, it seems unfortunate that Professor Waldron has taken such a sanguine position on these sorts of speech laws. I lived in the US until last year, when I moved to Canada: I think there might be something to be said for your proposal that these sorts of speech laws work in countries (like Canada) with high levels of civic engagement and governments responsive to citizens' concerns, but not in countries (like the US) where state power is routinely mobilized in the defense of private moneyed interests. But of course, a statement like that risks tautology: this kind of state power is good when the state is good, but bad when the state is bad.

I think it might be more accurate to say that these laws do relatively little harm, but not necessarily a great deal of good, in countries (like Canada) with relatively harmonious racial politics and high levels of civic engagement: they are less likely to be abused, but also less likely to be needed. Social and cultural norms seem to play a greater role in restricting state discretion in Canada than the US: while US constitutional theory is a history of civil war and the struggle for formal individual civil rights in an overtly hostile apartheid regime, Canada's Charter has (amazingly to my American legal mind) a loophole (in the form of the "notwithstanding" clause) allowing any province to pass legislation that overrides constitutional rights protections. That this clause has almost never been invoked is a testament to the difference in how Americans and Canadians regard constitutional limits on state discretion.

The recent threat of prosecution of a writer in Canada's Maclean's magazine over an article critical of Muslim culture should be mentioned, of course, but overall I'm not sure any of this helps us solve the riddle of how the US can neutralize its toxic racial politics without giving the state powers which will inevitably be abused, not only moneyed interests, but also by racial and religious majorities intent on protecting themselves from criticism.

Posted by: Picador | May 27, 2008 6:01:38 PM

I agree that these laws do relatively little harm, but not necessarily a great deal of good, in countries with a healthy liberal culture (under which I would reckon the U.S.). Speaking for the case of the Germany there is a law against hate speech http://www.iuscomp.org/gla/ (see statutes / criminal code / section 130) and specifically NS Symbols (section 86a). There is hardly any public discussion on their merits though scholars are at pains justifying the protection of the 'political climate' by means of criminal law. Most see it an "abstract jeopardy" like drunken driving. I am however skeptical whether it really helps to protect the political climate. Within the public sphere effective sanctions against intolerable utterances (reprimand, exclusion etc.) apply long before it is hate speech according to the law. Against the rise of Neo Nazi movements especially in some parts of Eastern Germany hate speech laws seem to be rather ineffective. Since they have to be precise it is easy to evade them and present the message nevertheless. The section against "denying the fact of the Holocaust" is faced with the difficulties that believing in facts can not really be enforced on somebody and would require ongoing punishment as long as the criminal act (not believing the facts) continues. Out of curiosity here is list by the German police http://www.polizei.hessen.de/internetzentral/binarywriterservlet?imgUid=04610b55-5440-48f3-362d-61611142c388&uBasVariant=ed83d448-9a76-4e11-8a5b-28e46ce02000
of signs one is not allowed to posses (except for educational purposes) and sentences one is not allowed to utter, not even 'jokingly' (Thus saying "Heil Hitler" is not a joke (probably a correct observation) but in Germany is a criminal offence – nowadays.)

Posted by: Detlef von Daniels | May 28, 2008 5:51:09 AM

Just look what is happening to Mark Steyn and Maclean's in Canada for a perfect example of governmental incompetence (and worse) in enforcing hate speech laws.

Posted by: Rob | Jun 4, 2008 11:40:08 AM

There appears to be an assumption underlying the last comment that is far from obvious, except perhaps to those who spend too much time reading the Volokh blog, namely, that there is something improper about investigating a racist like Steyn for his inflammatory rhetoric. Steyn's writing is precisely the kind that raises Waldron's question with respect to Muslims: "Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?" Canadians in any case have legal rules governing the asking of such questions, and it is far from obvious that they should not have them.

Posted by: Brian | Jun 4, 2008 12:19:22 PM

My concern is with the government's inability to distinguish speech that is truly harmful i.e. interferes with a group's ability to function in society and speech that is merely offensive. While I have no problem with the Canadian government restraining the paranoid racist musings of Mark Steyn, I do have a problem with that same government's ridiculous and selectively applied obscenity standards, that have not only prohibited the importing of erotica but also works with artistic, literary, and scientific value.

In other words, it seems perfectly reasonable to me to maintain a healthy skepticism about any government's ability to differentiate offensive speech and harmful speech.

Posted by: Milan | Jun 4, 2008 12:42:09 PM

Today's NY Times has a piece touching on these issues:

"Unlike Others, U.S. Defends Freedom to Offend in Speech"

http://www.nytimes.com/2008/06/12/us/12hate.html?_r=2&oref=slogin&pagewanted=all

Posted by: Rob Sica | Jun 12, 2008 6:46:17 PM

There's a somewhat interesting exchange of letters between Waldron and Perry Link (a professor of East Asian Studies at Princeton) in the NYRB new issue on this subject available here:

http://www.nybooks.com/articles/21624

The most interesting part of it is Waldron's discussion of British anti-hate-speech legislation.

Posted by: Matt Lister | Jun 27, 2008 1:45:07 PM

Authorities that Perform a "Partial Service": An Objection to Raz's Objection to Soft Positivism?

Here is a puzzle Mark Greenberg (UCLA) and I have been discussing, which we have shared with some legal philosophers on e-mail, and thought we would post here:

Raz argues that in order for law to have the capacity to be authoritative, its directives must satisfy the following condition: 

"it must be possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which [the] directive purports to adjudicate.” Ethics in the Public Domain, p. 202. 

His argument for this condition is that, otherwise, the directive would be unhelpful to the subjects.  He gives the example of parties to a dispute who are told simply that the arbitrator made the only correct decision, and he points out that this would be entirely unhelpful.  He concludes: “A decision is serviceable only if it can be identified by means other than the considerations the weight and outcome of which it was meant to settle.”  EPD, p. 203

But this conclusion seems false. Suppose that there are ten dependent reasons (call them A, B, C….J) that might bear on practical reasoning about what ought to be done in some instance, and the directive in question (correctly) tells the subject, “You ought to act based on A and B only,” thus telling the subject to exclude considerations of types C through J.  Suppose that the authority is, in fact, correct that A and B are the dependent reasons that ought to be considered in this context, and that in the absence of the directive, the subjects would have considered some number of C through J and reached the wrong result, whereas with the directive, the subjects will focus only on A and B and thus will, in fact, be more likely to do what they really ought to do than otherwise.  It seems that this directive thus performs a “service” for its subjects. Unlike being told that the decision is correct, this directive is helpful, even though (1) to know what they ultimately ought to do the subjects must consider dependent reasons (reasons of the type that fall under A and B), and (2) what the directive tells them to do cannot be identified without recourse to dependent reasons (of the type that fall under A and B). An authority who issued such directives could satisfy the Normal Justification Thesis (since the subjects could be likely better to comply with reasons which apply to them if they accept the directives as authoritatively binding and try to follow them than if they try to follow the reasons which apply to them directly).

If this is right—if what we might call a “partial service” authority (an authority that performs the partial service of telling subjects which dependent reasons are most relevant) can satisfy the Normal Justification Thesis—then doesn’t Raz’s argument against Soft Positivism fail?  That is, couldn’t a Rule of Recognition, by incorporating just some content-based criteria of legal validity perform the partial service for officials of telling them which kinds of dependent reasons they really ought to consider in validating legal norms, and thus enable them to do what they really ought to do more successfully then they would without such guidance?

I should note that my original thought was that Raz could, indeed, allow for "partial service" authorities, but it was Mark who persuaded me that this created a problem for the argument against Soft Positivism.  We both drafted the version of the puzzle, above, as an outgrowth of our conversation.

Posted by Brian Leiter on November 6, 2007 in General Jurisprudence | Permalink

Comments

Brian (and Mark) – I don’t see how this is a problem for Raz, but I might (of course) be missing something. An exclusionary reason is a reason for action and a reason to exclude other reasons for action when determining what one, all things considered, ought to do. The reason for action provided by the exclusionary reason is supposed to sum up the excluded reasons. An exclusionary reason does not have to exclude all other reasons for action. If it doesn’t, the new reason for action provided by the exclusionary reason is put in the hopper with the non-excluded reasons to reach an all things considered decision.

Now there are only two things about your example that are unusual. The first is that the excluded reasons are best summed up by offering the agent with no new reason for action at all. The agent is supposed to reason solely upon the non-excluded reasons. That’s strange but not really a counter-example for Raz (perhaps the excluded reasons cancel each other out).

The second is that the exclusionary reason allegedly tells the agent not merely not to consider the excluded reasons, but to consider the non-excluded ones. And it is this, it seems, that is driving your intuition that Raz is in trouble. But Raz would deny that the authority was giving the agent a reason to consider the non-excluded reasons. Those reasons are there recommending that they be considered without the authority and the authority cannot add to that. All the authority is saying is that they are not excluded. They can be given the consideration that they naturally have. The fact that they are then considered is not a problem for Raz's argument against soft positivism.

Posted by: Michael Steven Green | Nov 6, 2007 2:24:16 PM

I read Raz as saying that serviceability is necessary but insufficient to establish a directive's authoritativeness. A directive must also directly *endorse* not just *entail* what the subject ultimately ought to do.

From p312 of Raz, "Authority, Law and Morality" 68 The Monist 295 (1985): "It will now be clear why the incorporation thesis must be rejected if the law does necessarily claim authority. The main thrust of the incorporation thesis is that all that is derivable from the law (with the help of other true premises) is law. It makes the law include standards which are inconsistent with its mediating role for they were never endorsed by the law-making institutions on whose authority they are supposed to rest. The mistake of the incorporation thesis is to identify being entailed by the source-based law with being endorsed by the sources of law."

That quote speaks to what is the second of two conditions that flow from Raz's model. Those are: (1) it must be possible to identify the directive without doing the underlying reasoning, and (2) the directive must represent someone's view of the reasoning. It seems to me your puzzle lacks (2)--but I could be wrong in my reading/application of Raz or my understanding of the puzzle...

Posted by: Raleigh Morgan | Nov 6, 2007 11:34:33 PM

Like Michael, I don't see the problem. As Mark himself says, the norm he has in mind tells officials "which kinds of dependent reasons they really ought to consider in validating legal norms". So even according to Mark it is the officials, not the reasons, that do the validating. Which is exactly what so-called 'hard positivists' claim. The rival 'soft postivist' claim is that the reasons do the validating without the intervention of the official.

Posted by: John Gardner | Nov 7, 2007 6:25:13 AM

I agree with the original post; this seems to be a problem. Raz's way of avoiding it (both in A,L,&M and in his Incorporation By Law) seems to be by insisting on the importance of his "entailed by law != law" distinction, but I don't think this does the work he requires. It's quite true that mandating that Belgian law be used to interpret a contract doesn't incorporate Belgian law into the host legal system, but if the foundational criteria of legality of the legal system *include* moral ones, that's a different situation.

Suppose our criteria of legality include, as necessary elements of valid law, some degree of satisfaction of rule of law values (in addition to standard sources-based considerations). Clearly, other moral considerations besides rule of law values bear on whether the legal norm should be complied with (and/or whether it should have been enacted at all). And the legal authority in this situation is claiming that all of these other considerations--with the exception of the threshold RoL one--have been taken into account, and hence ought to be excluded from the subject's reasoning. A legal norm that required its putative subjects to test its content against these soft-positivist criteria of legality could therefore still pass the service conception test of authority.

Raz (in Incorporation by Law) also seems to be saying that this doesn't give you soft positivism because morality always applies, and law may only alter our use of moral reasons if morality itself dictates. While this is true, I fail to see how it keeps positivism "hard" as opposed to providing us with the critical attitude necessary to appraise whether soft positivist criteria of legality *do in fact* have the authority they claim.

Posted by: X. Trapnel | Nov 7, 2007 6:51:29 PM

I believe the example could be reformulated slightly to immunize it against Michael Steven Green's critique:

An official lays down a legal directive: "In instances of this sort, do X; do not consider C ... J." Moreover, the criteria for legal validity in this system include, 1, that directives be issued by this particular official, and 2, that they be consistent with reasons A and B, which are presumably dependent (moral) reasons applicable to a very wide variety of situations.

This is clearly a directive that could be authoritative: we can easily imagine (expertise, democratic respect, whatever) the official's directive being a reason to do X and to exclude C-J from our deliberations about whether to do X. It has served us, despite requiring us to consult A and B to test its legal validity.

This is positivist, because the fact that A and B rather than C and D are among our criteria for legal validity is a consequence of the social practice that we happen to have; it is soft positivist because, as John Gardner puts it in his comment, the A and B reasons do the validating independent of the official's assertion, should he make one, that A and B are in fact satisfied.

Posted by: X. Trapnel | Nov 7, 2007 7:24:57 PM

It is worth saying, first of all, that *partial* service is not a situation Raz failed to anticipate. Indeed, he assumed authorities’ directives would generally exclude only *some* reasons for action, not all of them. The reason provided by the authority’s directive would then be balanced against the non-excluded reasons to come to an all-things-considered decision.

So the question is only whether the validity of an authority’s directive can depend upon its satisfying these non-excluded reasons. Raz argues that this is impossible, because the law necessarily claims authority and so must be capable of having it. And to be capable of having it, the validity of an authority’s directive cannot depend upon the dependent reasons it is meant to exclude.

To see why Raz is right, compare the following two situations. In situation 1, a doctor orders a certain drug for a patient, but says that his valid medical order is meant to exclude and sum up only *medical* reasons for action. The patient ought to take the reason provided by the doctor’s order and balance it against non-excluded reasons for action (e.g. religious prohibitions on certain types of drugs).

In situation 2, a doctor orders a certain drug for a patient, but claims that the *validity* of his medical order itself depends upon its satisfying the non-excluded reasons for action applicable to the patient. If the drug is prohibited by the patient’s religion, for example, the doctor’s order is not valid.

Raz would claim that situation 2 is a sham. It is really situation 1. The idea that the validity of the medical directive depends upon its satisfying the non-excluded reasons is irrelevant to its status as an authoritative directive. To the extent that the medical directive claims to be authoritative, its validity cannot depend upon its satisfying the non-excluded reasons.

Analogously, if the law necessarily claims authority, Raz is right that any situation in which the validity of the law allegedly depends upon its satisfying non-excluded reasons for action is a sham.

I think X. Trapnel as well as Leiter-Greenberg simply reject Raz’s premise that the law necessarily claims authority. As a result, they think there is nothing wrong with the validity of the law depending upon the satisfaction of non-excluded reasons. Fair enough. (For the record, I reject Raz’s premise too.) But the Leiter-Greenberg scenario is not an internal argument against Raz’s exclusive legal positivism (that is, an argument that works even assuming that the law necessarily claims authority), nor is it one that Raz did not envision.

Posted by: Michael Steven Green | Nov 8, 2007 8:56:46 PM

Re XT's scenario:

The question under discussion is not whether the official *issuing* such a directive is exercising authority (clearly the answer is yes) but whether the directive, interpreted as XT interprets it, is consistent with the authority of the officials whose job it is to *apply* the directive authoritatively (such as judges).

On the hard positivist view the directive must be interpreted so as to make the (legal) force of unexcluded reasons A and B turn on the law-applier's determination of their force. It is that official determination - not the actual force of A and B - that settles the lawfulness or unlawfulness of Xing in a particular case. The directive as stated does not spell this feature out because it is unnecessary to do so. It is a feature dictated by the nature of law.

A soft positivist interpretation, such as XT's, makes the lawfulness or unlawfulness of Xing in a particular case turn on the actual force of reasons A and B rather than on any law-applier's determination of that force. In the process the soft-positivist interpretation effaces the authority of the law-applier. Her ruling does not stand in any case in which she gets the force of A or B wrong. She has no authority regarding the application of the directive in any case in which reason A or B is present. And that is why we cannot interpret reasons A and B as part of the law. If they were part of the law then there would have to be the possibility of an authoritative determination of their legal force as applied to a particular case.

Posted by: John Gardner | Nov 9, 2007 7:14:00 AM

Sorry – I shouldn’t have said that in the Leiter-Greenberg example the validity of the law depends upon the satisfaction of non-excluded reasons (that’s true only of X. Trapnel’s example). In the Leiter-Greenberg example, the directive tells the agent to act on the non-excluded reasons. But I think Raz’s response would be similar in each case.

Posted by: Michael Steven Green | Nov 9, 2007 7:41:43 AM

Concerning John Gardner's example: I'm afraid I still don't see the problem. It's quite true that the lawfulness turns on whether or not the official gets A and B right, and hence she has no authority in cases where she gets them wrong. But she still has authority in cases where she gets C, D, ... , and J wrong! And this is a lot of authority! This is the entire "partial exclusion" point. Compare two putative authorities, both of whom say "Do X, and do not consider C-J"; one is in my soft-positivist criteria of legality system, and so her directive is valid only if in conformity with A and B, while the other is in a hard positivist system that places no such restriction on validity. Both officials provide the same service: supposedly each directive sums up and hence justifiably excludes C-J. The citizen in the Soft system has to consider A & B when deciding whether or not the directive is valid, but, having done that, need not consider C-J; the citizen in the Hard system can take validity for granted, but must still consider A & B before deciding whether the valid directive is nevertheless *outweighed*.

Admittedly, the citizen in the Soft system must take that extra step; in that sense, his authority does "less" for him. But she is still serving as an authority, and in fact, the Soft criteria of validity may be part of what justifies the claim to authority to begin with (e.g., it is only because of this A&B test that we can trust the official to not abuse her power and hence provide us the C-J-excluding service).

Certainly, when the directive is tested in the courts, the judge will make her own determination about A & B, and only consider the subject's determination if there are rules about excuses and whatnot. But this is entirely consistent with the directive passing the test of being (potentially) authoritative, because capable of providing the C-J-replacing service, *to the subject* at the moment the subject is seeking guidance.

As for Michael Steven Green's response, I again don't see the difficulty. Certainly Case 2 in that example makes no sense. But this is because the example is a case of *pure epistemic expertise*, and so the validity of the epistemic authority cannot be invalidated on non-expertise grounds. But note the problem with the example is not that the doctor is failing to provide a service through exclusionary reasoning, but merely that this validity condition makes no sense; it does not speak to the *sort* of consideration that could validate a claim of expertise. If he were a witch-doctor, on the other hand ... but we can leave this aside.

More importantly, we can easily imagine some sort of religious law system wherein a doctor's pharmaceutical prescription was only *legally valid* if the doctor was a "honorable man." Perhaps such a rule would be hard to justify, and lack authority--I personally think the system of pharmaceutical licensing in most states is hard to justify as it is--but it involves no conceptual contradiction. If the doctor is honorable, the scrip is legally valid; if not, not; it still excludes dependent medical reasons. The doctor's virtue may have nothing to do with his professional expertise, but that speaks merely to the wisdom of the law, not its conceptual coherence. We can surely *imagine* an argument to the extent that only honorable men can be trusted to dispense medical advice (think of the Bar's ethics requirements). Probably mistaken, sure--but not incoherent. Just because you have to do some work to check for validity doesn't stop the directive from performing a service, although it *might*, as a contingent matter, keep it from *in fact* being authoritative.

Posted by: X. Trapnel | Nov 9, 2007 3:47:20 PM

But the very question on which hard and soft positivists are divided is whether A and B, in your example, really can figure in the criteria of legal validity. Hard positivists say they can't so figure because, ex hypothesi, law-applying officials have no authority regarding the application of A and B. It is irrelevant that they have authority regarding lots of other things (such as C, D ... J).

Posted by: John Gardner | Nov 10, 2007 3:34:02 AM

I agree with John. Of course it is possible for there to be a concept of a valid medical directive where its validity depends upon the satisfaction of non-excluded reasons for action – like the patient’s religious concerns or whether the doctor is honorable. But, as John put it in the legal content, in such a case the authority of the doctor is *effaced* with respect to these other requirements. So a doctor issuing what he believes is a valid medical directive cannot consistently *claim* to be acting as an authority when issuing it, insofar as these requirements are concerned.

Analogously, if one assumes, with Raz, that it is necessary to the law that it claim authority, the law cannot include requirements, like A and B, concerning which the lawmaker plays no authoritative function. It seems to me that X. Trapnel (like many others) simply thinks that it is not necessary to the law that it claim authority.

In any event, I think it would be a good idea to return to the Leiter-Greenberg example. X Trapnel’s is one in which satisfaction of A and B is a condition for the law’s validity. This is certainly not a scenario that Raz failed to envision. It is exactly the scenario he meant to argue against.

On the other hand, Leiter-Greenberg suggested that Raz may not have considered their scenario. With John, I don’t think it is a problem for Raz (assuming that the law necessarily claims authority), but I’d like to hear from Brian or Mark about whether we have understood them correctly.

Posted by: Michael Steven Green | Nov 10, 2007 1:40:35 PM

An Epistemological Puzzle about Legal Positivism?

The puzzle is due to Mark Greenberg (UCLA), who suggested it in conversation the other day (when we were discussing this paper of mine).  (Greenberg is spending the calendar year 2007 at UT Austin.)  I'll give my rendition of it, and then sketch what I take to be some possible answers.

According to the positivist, if a judge says, "I have a legal obligation to X," that statement is true if there is a convergent practice of behavior by officials to X, and officials accept the rule describing that practice from an internal point of view.  But--contra Dworkin in "The Model of Rules II"--the fact of convergent behavior is not the justification for taking oneself to have the legal obligation (the judge will not appeal to the convergent behavior in explaining the obligation).  Since the truth-conditions of the statement are not the justification for the statement, how can a judge know that he has a legal obligation?  That's the puzzle.

Two possible answers, in my view.  First:  for an externalist reliabilist, one can know one has an obligation if there is some reliable process causally connecting the truth-conditions for the judgment with the making of the judgment, even if the maker of the judgment knows nothing about those truth-conditions.  I don't think this is the route Hart would go, but externalist reliabilism about justification would be one way of solving the puzzle.

The other route is truer to Hart, I think:  namely, to deny that the judgment, "I have a legal obligation to X" is in fact a cognitive judgment, i.e., that it is knowledge at all.  We have known for a long time that Hart took for granted the then-prevalent non-cognitivism about ethics, and in a quite important recent paper on"Hart's Expressivism and his Benthamite Progress" which appeared in Legal Theory in 2005, Kevin Toh gave the first really systematic account of how the non-cognitivism figures in his theory of law.   If judgments about legal obligations are really non-cognitive--really expressions of acceptance of a norm which licenses the claim about legal obligation--then there is no question about how a judge "knows" that he has a legal obligation. 

But, of course, that also means that it can't be true that he has a legal obligation to X, doesn't it?  Or perhaps it is just "minimally" true (vide Wright, Truth and Objectivity)? 

Thoughts?

Posted by Brian Leiter on August 26, 2007 in General Jurisprudence | Permalink

Comments

I have a more interesting puzzle about Legal Positivism? Can the following proof that it does not exist be refuted?
1) There are no historical intellectual movements or schools of thought without members, without people who belong to them.
2) Nobody has ever espoused the view that "I have a legal obligation to X" is true if there is a convergent practice of behavior by officials to X, and officials accept the rule describing that practice from an internal point of view.(by diffuse general knowledge)
3) According to the positivist "I have a legal obligation to X" is true if there is a convergent practice of behavior by officials to X, and officials accept the rule describing that practice from an internal point of view.(by Leiter, and reportedly Greenberg)
4) Ergo, there is no legal positivism
Happy end

Posted by: Joseph Raz | Aug 27, 2007 7:45:44 PM

Is it true that judges in the United States have a legal obligation to invalidate unconstitutional statutes? I imagine it is. If so, what makes it true?

Posted by: Brian Leiter | Aug 27, 2007 8:09:29 PM

Convergent conduct together with acceptance from the IPV are at most necessary conditions for having a legal obligation, even on a positivist account. (Bentham and Kelsen add sanctions; Hart adds some features of the content and character of the rule (supposed importance, categorical nature...)) They don't distinguish obligations from other reasons for acting, and they don't distinguish legal obligations from other obligations supported by law.

When one says that the truth conditions of 'there is a legal obligation to do X' are not its justification conditions, one is presumably not denying that they are the conditions that justify believing, knowing, etc that one does indeed have such a legal obligation. One is denying, I take it, what Dworkin asserts: that these conditions must be at the same time the presumptively sufficient conditions for the legal obligation to do X being morally legitimate (by which he means that it is morally justified to coercively enforce them).

Posted by: Leslie Green | Aug 28, 2007 8:57:56 AM

I am confused. Is this a substantive legal obligation you are talking about? Did not Hart suggest that accepted practice is NOT what makes substantive legal obligation?

Posted by: Nicos Stavropoulos | Aug 30, 2007 7:09:42 AM

I'm not sure what Nicos means by a "substantive" legal obligation. (As opposed to what other kind?) But Hart did *not* suggest "that accepted practice is NOT what makes ... legal obligation."

To begin, "accepted practice" does not mean *a practice generally accepted by the norm-subjects*. That mistake is made by Dworkin in LE, 34 line 14ff. (This distorts the whole character of Hart's account, for reasons I explain in 94 Michigan Law Review 1687, 1700-02.) The relevant practice may be limited to a subset of the population.

Second, for a legal obligation to V to be practice-dependent it is obviously not necessary that anyone have *a practice of V-ing*, or even requiring that someone V. Practice-dependence is secured provided only that there exists *some* practice, R-ing, such that, if there were no accepted practice of R-ing, there would be no legal obligation to V.

At CL 2e 85, Hart writes, "The statement that someone has or is under an obligation does indeed imply the existence of a rule...." (the other conditions follow at 86-88). Hart also holds that the existence of a rule requires as a necessary condition "that their behaviour in fact converges" (55)(something it shares, of course, with a mere habit--the sufficient conditions follow at 55-57).

At CL Postscript 255-6 Hart concedes that this account explains only conventional social rules. He maintains, however, that ultimate legal rules *are* of this sort. Non-ultimate legal rules, including some that create legal obligations, *need not* be of this sort. They may be binding because they so recognized by at least one other legal rule that is binding only because of accepted practice. They are binding "before any occasion for their practice has arisen and the practice theory is not applicable *to them*."(256-emphasis added)

That is why I wrote that convergent conduct and a certain attitude are "at most necessary conditions conditions for having a legal obligation." *Necessary* because in no case can one conclude that there is a legal obligation from the mere fact of convergent and accepted conduct. *At most*, because some legal obligations are binding before the relevant conduct and attitude to them has arisen, or could have arisen.

But it does not follow, and it is not true, that no legal obligations are dependent on accepted practices.

In any case, Hart's theory of obligation is wrong--but that is another story.

Posted by: Leslie Green | Aug 30, 2007 10:34:15 AM

Interesting puzzle. Just to make sure I've got hold of the right issue: the question is about whether a judge's belief about the existence of some particular legal obligation could amount to her *knowing* that there is such an obligation. (Given the non-cognitivist option, "claim" or "judgment" would be more neutral than "belief"; but pretend for the moment that we're cognitivists.) And the worry, I take it, is about whether the judge's belief can be based in the appropriate way on the facts that make the belief true. The background intuition is that for a belief to be knowledge, the belief must be based in the appropriate way on the facts that make the belief true; and the worry is that, if positivism is right about the truth-conditions for claims about legal obligation, then judges' beliefs aren't so based (typically, at least).

Brian suggests that the positivists who want to stay in the cognitivist camp could go the reliabilist route. But perhaps there's another possibility.

It's true that when judges attempt (in judgments or in argument, say) to justify their claims about what the legal obligations are, they don't explicitly appeal to the sorts of things that positivist go on about: the convergent behaviour of officials, the internal point of view, etc. Instead judges appeal to legislation, previous court judgments, principles of the common law, and so on. Call these the "professional facts". But maybe a positivist could argue that appeals to these professional facts *are*, in some sense, appeals to those social facts which, on the positivist story, are the truth-makers for the obligation claim. The thought would be that claims about legal obligations which are soundly based on the relevant professional facts *are* claims which are appropriately based on the truth-makers for the obligation claim. That would explain why the judge's beliefs amount to knowledge.

There's quite a bit of hand-waiving in there, but I think the general line has something going for it. There's a tendency for discussions of positivism to focus on the very abstract parts of the truth-makers for claims about legal obligation: the convergent behaviour of officials, the internal point of view, etc. This can encourage the idea that the "real" truth-makers are foreign to ordinary legal practice. But the complete truth-maker for any judgment about a particular, concrete legal obligation will have to include more specific social facts -- facts about, eg., what particular pieces of legislation say, or what courts have said in the past. And these things are central to ordinary legal practice. So we can at least say this: a judgement about a particular, concrete legal obligation which is soundly based on the relevant professional facts will be a judgment which is based on *part* of the complete truth-maker for the judgment.

In the end, this proposal may just be a variant on the reliabilist story (soundly basing one's judgements on the relevant professional facts is after all quite a reliable way of producing true legal judgements). Still, it seems to me to have a slightly less externalist flavour. For one thing, judges are certainly aware of -- and presumably often know -- the relevant professional facts on which their judgments about obligations are based.

Posted by: James Morauta | Aug 30, 2007 2:20:36 PM

Brian,

"But ... the fact of convergent behavior is not the justification for taking oneself to have the legal obligation (the judge will not appeal to the convergent behavior in explaining the obligation)."

By "the justification," do you mean the judge's reason for thinking that he has a legal obligation to X? Your appeal to what the judge would "appeal to" makes it sound that you're speaking not of the judge's reasons, but rather what the judge would cite in conversation as support for his belief. But of course these two things--the "real" reasons and the "discursive" reasons, let's call them--could come apart.

It is certainly possible that the judge (i) accepts legal positivism and (ii) believes that the relevant pattern of behavior obtains, and so (iii) infers that he has a legal obligation on the basis of those two things. Even if the judge wouldn't cite those factors as discursive reasons, they still might be his real reasons.

Does it matter for your purposes that the judge *could* come to hold the relevant belief in this way? Or is it sufficient that the judge would not, as a contingent matter of fact, come to hold the belief this way?

Here are a couple other ways the judge might come to know, assuming that legal positivism is true:

(A) The judge gets it on testimony.
(B) The judge has an intuition that he has a legal obligation to X.

Posted by: John Turri | Aug 30, 2007 2:46:17 PM

Is this puzzle any different from what confronts, just for an example, the mathematical Platonist? According to the platonist, the truth conditions for 2+2=4 are just the facts that those numbers stand in the stated relations. But the justification conditions involve the wiggling of fingers, etc. Logicists would have a similarly hard time explaining how, prior to Frege, anyone knew that 2+2=4. This is just off the top of my head, but aren't there numerous philosophical doctrines in which there is little if any overlap between truth conditions and justification conditions?

Posted by: Eric W. | Aug 30, 2007 3:45:43 PM

I just noticed something, which is probably minor. In the setup, Brian says, "According to the positivist, if a judge says, "I have a legal obligation to X," that statement is true IF there is a convergent practice of behavior by officials to X, and officials accept the rule describing that practice from an internal point of view."

Was that 'IF' supposed to be an 'ONLY IF' or even an 'IFF' (plus, perhaps, some commitment to metaphysical determination from right-to-left)? If it's just a sufficient condition, then I don't see any puzzle arising.

Judging from my limited knowledge of legal positivism, I'm guessing it's supposed to be an 'iff' with determination from right-to-left.

Posted by: John Turri | Aug 30, 2007 10:21:26 PM

The practice theory is supposed to explain an obligation to X by reference to an accepted practice of X-ing. It is therefore not meant to explain what I call substantive legal obligations, i.e. obligations imposed by what Les calls non-ultimate legal rules. For a given obligation to X imposed by such rules, it is not true that the obligation is explicable by reference to an accepted practice of X-ing—such a practice need not obtain. These rules owe their force to validity, not acceptance. This is clear enough from Hart’s original book, and is nicely confirmed in the passage from the postscript Les quotes in his response: ‘the practice theory is not applicable to them’.

Accepted practice is of course in play in this case too, albeit in the background: substantive legal obligation to X is ‘dependent’ on accepted practice of what Les might call the ultimate legal rule(s). This is after all what validity is all about. But in this case, the practice in play is not a practice of doing that which it is a substantive legal obligation to do, i.e. X, but a practice of doing something very different.

Brian’s description of the challenge put to him does not involve ‘dependence’ of an obligation to X on a practice of Y-ing. It involves a practice of X-ing making it true that an obligation to X exists. I suspect that Brian has in mind what is sometimes called judicial obligation. That is obligation the content of which is determined by official practice at what we might call the ‘ultimate’ level, where the practice theory is applicable. The challenge invented by Joseph again involves an obligation to X and a practice of X-ing. It is different in that it is about legal obligation, unqualified. Of course, neither Hart nor anyone else has ever espoused the view Joseph describes, namely that a legal obligation to X exists if it is the accepted practice of officials to X.

Posted by: Nicos Stavropoulos | Aug 31, 2007 11:58:05 AM

Why is there a puzzle specifically here? In general, it is true that truth conditions are different from justification conditions, not only in philosophy but with respect to virtually any scientific theory. One of the truth conditions for plate tectonics is that there are massive subterranean plates moving about beneath the earth's surface. No one tests plate tectonics by looking for the plates but instead by looking at surface features predicted by that theory. One of the truth conditions for the general theory of relativity is that space is warped in the vicinity of matter. What justified the acceptace of the GTR was observing light bending near the sun, not observations of the curvature of space per se. It seems to me a perfectly general rule that, as soon as one starts talking about postulated or theoretical entities, justification conditions diverge from truth conditions. If they did not, empirically-grounded theoretical speculation would be impossible.

I'm also midly perplexed by the talk about a judge knowing that he has a legal obligation. Why is that the pertinent propositional attitude for posing the puzzle? Surely, rationally believing would be enough, would it not?

Posted by: Larry Laudan | Aug 31, 2007 2:34:54 PM

First, let me say thanks for an excellent and illuminating set of comments. And, second, my apologies for taking so long to post some replies. But better late than never (perhaps!).

Nicos Stavropoulos, in his second, long, comment correctly states the issue involved in the puzzle and thus the crux of the response to Joseph Raz's amusing first comment (and also to Les Green, though Les's elaboration on my quick statement of the truth-conditions for ultimate obligations are, of course, correct and welcome).

James Morauta also gives a nice restatement of the puzzle in his comment, though I am inclined to the view (as he suggests) that his version of a response is in the "reliabilist" family. I'm not certain about its "externalist flavor," or lack thereof: I take it that even on James's proposal judges can be ignorant of the truth of legal positivism, even though we can see how the justification-conditions he proposes are derived from the actual truth-makers. But that is probably not enough for the account to be an externalist one.

John Turri is surely right that the "real" reasons and "discursive" reasons could come apart, but I don't see any reason for thinking that is true in the judicial case. John's "possible" justification scenarios are, indeed, intelligible, but they aren't actual, or, in any case, I see no reason for thinking they are actual.

Eric W. and Larry Laudan both make versions of the important point that this "puzzle" is not peculiar to this context--and, more importantly I take it, they're not so sure it's really puzzling, given how common truth-conditions and justification-conditions differ. (As a side note, I don't see that the "puzzle," if it is a puzzle, would be any different if we substitute "rational believing" for "knowing.") If there is a special reason to be worried about this in the case of the positivist theory of law, it must be this. On the positivist account, law is, at its foundations, a product of human conventions of a certain kind. Do we have the notion of a practice whose content is fixed by human conventions where the truth-conditions and justification-conditions for knowledge of (or rational belief about) that content come apart? Maybe that is the really crucial question here. Thoughts?

Posted by: Brian Leiter | Sep 30, 2007 5:20:11 PM

This Blog Has Moved!

The new site is here.

This Blog is Going to Move

I'm going to move the URL for the blog (by the end of August), hence the dearth of follow-up posts.  The new URL will be posted here, and I'll also link to it from my main philosophy and law school blogs.  Thanks for your patience.

Simpson's "The Common Law and Legal Theory"

A couple of years ago, Leslie Green and I had a spirited exchange in the pages of the Times Literary Supplement with A.W.B. Simpson about his hatchet job on H.L.A. Hart, delivered under the guise of a review of Nicola Lacey's fine biography.  Like some other reviews of Hart's biography--I am thinking especially of Thomas Nagel's sanctimonious review of the same book in the  London Review of Books--Simpson's sneering told us more about the reviewer than the book.  In any case, it left me with the impression that this was someone not at all serious about legal philosophy who, at the same time, was quite embittered about Hart's fame and success.  (This is odd, given Simpson's own great professional success and his fine reputation as a legal historian.)

In any case, I have been thinking this summer about what Dworkin calls the problem of "theoretical disagreement" in Law's Empire, prompted by the paper by my friend Scott Shapiro on the Hart/Dworkin debate in the new CUP volume on Dworkin edited by Arthur Ripstein.  (I may write about Ripstein's introduction to that volume at a later date.)  In reading around, I was led back to the old and well-known paper by Simpson on "The Common Law and Legal Theory," which appeared in the Oxford Essays in Jurisprudence, 2nd Series that he edited in 1973.   The paper has been much cited, and I have a dim recollection of having read it in law school 20 odd years ago.  In any case, I re-read it today.

I am struck by what a bad paper it is and puzzled, accordingly, by why it is cited so often.  To be clear:  it is well-written, learned, and lucid.  But what it says about the positivist theory of the common law is uncharitable in the extreme.  The paucity of citations to Hart's The Concept of Law is perhaps the first indication that this is meant to be an indictment, not a scholarly assessment, of the positivist theory of the common law. 

Simpson claims, first, that positivists think "the common law is a set of rules" (here he echoes the early Dworkin) which "owe their status...to the fact that they have been laid down" (80), and here at least he can cite some pertinent passages from Austin, John Chipman Gray (!), and Kelsen.  Simpson takes the common law, by contrast, to consist of "customary" rules, and so he thinks the positivist account "has to be emasculated until it means only that the norms of customary law are the products of acts of will, even though these acts of will are not directed to the making of law at all" (81).  He is silent about the obvious alternative possibility (apparent to a reader of Hart) that the positivity of law consists not in its being the product of intentional human action (of someone  "laying down rules") but rather in its being a "positive" fact, namely, that the law is what it is in some community in virtue of the observable conventional practices of humans in that society.  More on that thought in a moment.

Simpson claims, secondly, that positivists conceive "of law as a sort of code" (81). Here he does not even try to cite textual evidence, since he has simply made this comitment of positivism up out of whole cloth.  (Am I wrong?  What could Simpson be thinking of?)

Simpson's preferred view is that the "common law" is a kind of "customary law" (91 ff.).  (Readers of Hart must surely be puzzled at this point as to why Simpson thinks he is having a dispute with positivism.  But it gets worse.)   Simpson describes a custom as a practice "which is regularly observed and has been regularly observed for some time in a group, and which is regarded within the group as the normal and proper practice" (92) which will remind any informed reader of Hart's account of a social rule, though perhaps less developed.  Simpson then poses the strawman objection that rules of the common law, like the rule against perpetuities, can not be "customs" since they are not "putative descriptions of the customary practices of Englishmen" (92), which must surely be true.  But there is another possibility that a scholar writing 12 years after The Concept of Law might have been expected to note:  namely, that the customary practice is not that of citizens, but of certain officials, namely, their practice of treating certain kinds of dispositions of property after death as legally valid, others as not. 

This brings us to the key passage in Simpson's article (p. 94):

[I]t seems to me that the common law system is properly located as a customary system of law in this sense, that it consists of a body of practices observed and ideas received by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes litigated before them, or by them on behalf of clients, and in other contexts.

But is this not just to say that the common law consists of those norms validated by the social rule constituted by the practice of "officials" (the "caste of lawyers") in a particular community?  Perhaps the idea that the content of this rule reflects "what is conceived to be the rational determination of disputes" means that this describes a version of Soft Positivism, but that too would have been congenial to Hart.  But the puzzle remains:  why does Simpson think any of this states a dispute with Hart's theory of law?

There is a further irony on this page, namely that Simpson formulates his objection to positivism by suggesting that,

Formulations of the common law are to be conceived of as similar to grammarians' rules, which both describe linguistic practices and attempt to systematize and order them; such rules serve as guides to proper practice since the proper practice is in part the normal practice; such formulations are inherently corrigible, for it is always possible that they may be improved upon, or require modification as what they describe changes.  (94)

But surely, one thinks, the "positivist" theory of grammar is the correct one! Grammatical rules emerge from the grammatical practices of speakers of a language, practices which (in Hartian terminology) speakers accept from an "internal point of view," i.e., which the speakers take as obligatory as evidenced by the fact that they appeal to them in sanctioning deviation and commending conformity.  (The preceding is true, I take it, even if a broadly Chomskian/nativist account of the disposition to conform to grammatical rules is the correct one.)   So if, as Simpson claims, common law rules are "similar to grammarians' rules," then the positivist theory of the common law is precisely the one Simpson himself endorses!

This Blog and Its Purpose

I am going to use this blog to post some thoughts about issues in legal philosophy that I'm working on--papers or books I'm reading, talks I attend or give, problems I'm working through.  The posts will be "thinking out loud" in the sense that they won't be polished or heavily revised, and thus no doubt replete with errors and misunderstandings.  I will have comments open on all posts, in the hopes of having readers set me straight--though the comments will be moderated, and only signed comments that make a contribution to understanding will be approved.

Thanks for reading.