A Persistent Difficulty In Teaching Philosophy Of Law

This semester, I’m teaching Philosophy of Law–again. My syllabus, as always, is a new one, and reflects an altered orientation and focus from those of days past. The current edition is fairly simple: it kicks off with Lon Fuller‘s ‘The Case of the Speluncean Explorers,’ excerpts from H. L. A Hart‘s The Concept of Law, Justice Oliver Wendell Holmes‘ ‘The Path of the Law‘ and then moves on to a selection of readings from Alan Hutchinson’s edited collection Critical Legal Studies. And yet again, I’m finding that I have a very hard time explaining or making comprehensible or plausible the distinction between natural law theories of the law and legal positivism, or indeed, even making clear what those theories are.

On the face of it, this should not be too difficult: natural law theories insist on a conceptual connection between law and morality such that legal obligation is a species of moral obligation; positivists, treating law as a matter of social fact, separate law from morality, and find legal obligation grounded in posited social arrangements and their resultant expectations.

But year after year, semester after semester, I find that I cannot get this distinction across clearly. Rest assured, I do not employ the language of the paragraph above, which is quite formally stated. But no matter what language I use, what instructive examples I use–I always kick off my classes on this distinction by asking students to provide me examples of “something that is legal but would be considered immoral by some and something that is legal but would be considered moral by some”–and of course, I offer extensive exposition and encourage discussion of the texts we use, many of my students’ responses–written and oral–make it quite clear the central concepts involved in making the distinction between natural law and positivist theories of the law clear are, in point of fact, not so. (Sometimes I’m tempted–because of my formal education–to say that natural law theorists say that “no matter how you define law, you are going to have morality somewhere on the right hand side”; I can only occasionally resist this temptation.)

I do not think this is my students’ fault. I suspect this is because over the years I’ve come to suspect I don’t understand the supposedly clear-cut distinction myself, especially as I’ve come to believe that natural law theories can in fact be subsumed under positivist theories: a system of morality and the particular moral principles it entails are a kind of social fact, one that has resulted from the ongoing evolution of a particular social formation; the moral principles that we take to be true at any given instant, the ones that command our obligation and allegiance and that help preserve key social distinctions and help realize socially desired ends; natural law theories can then be understood as claiming the social fact of morality as the one that underwrites legal claims and obligations; in this light, you don’t get out of the historically contingent particulars of the social into some transcendent realm of morality. (Or you could give natural law and positivism a Nietzschean twist by claiming as Nietzsche did in The Genealogy of Morals that morality is derived from law.) As Hart had noticed in his Concept of Law, the theory of law he presented did not say anything about the content of rules; they could be amoral or moral. Understood in this light, natural law theories can be understood as both descriptive i.e., making the claim that legal systems do indeed, always strive for moral content in their  laws or prescriptive i.e., legal systems should include moral content in their rules. Where natural  law would then turn out to be false is that they would not capture crucial features of extant legal systems; they would have attempted to make their descriptions exhaustive, capturing some supposed conceptual connection, and failed in the process. This fact, and the distance it puts between a natural law vision of the law and the postivist vision would still be worth pointing out.

Thus far, I have not succeeded in making myself clear though. I’ll keep trying.

Nietzsche’s Inversion Of Natural Law In The Genealogy Of Morals

The radically constructive nature of legal and economic concepts emerges quite clearly in the brilliant second essay of The Genealogy of Morals. Here, Nietzsche sets out his view of how the concept of a contract creates persons, how the ethical subject is not found but made. For Nietzsche, the law, a set of human practices, ‘creates’ its subjects by acting upon humans to make them into beings capable of obeying the law. The inversion Nietzsche forces upon us takes from the notion of a contract as a legally enforceable promise to the notion of a promise as a morally enforceable contract.

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The Right Body Language For A Court Appearance

On Wednesday morning, I reported to the New York City Criminal Court to be arraigned on charges of disorderly conduct stemming from my arrest during a civil disobedience protest staged outside the office of the governor of New York State, Andrew Cuomo, on March 24th. The day proceeded along lines similar to those I had reported in my previous day in court (back in 2014, after protests outside the Israeli mission during the Gaza crisis): meet my fellow defendants; meet our union’s lawyers; wait to be called into courtroom; wait to be called up before judge. We would, in all probability, be granted an ‘adjournment contemplating dismissal’ (ACD)–a deferment for six months, during which time the charge would remain open and after which could be dropped. Unlike my last appearance in court, this time my name was called out in the first group itself.

I walked up to the front of the courtroom and stood in front of the judge. My fellow defendants–three of them–stood next to me. As I stood and waited, I crossed my arms in front of my chest. Seeing this, a court guard–who was handing papers to the judge–walked up to me and told me to put my arms down. He didn’t specify an alternate location; just that the current one wouldn’t do. I complied; I had no intention of arguing with a police officer in a courtroom, thus risking another arrest for ‘disorderly conduct’ even as I was appearing in court for another such charge.

But the business of being told to adopt the ‘correct’ or ‘appropriate’ body language was intriguing and revelatory. So much of what happens in the courtroom is pure performance, a legal theater: the judge’s seat placed on high, the imposing architecture, the formal, stately, convoluted language, the solemnity, the tightly circumscribed procedure, all the better to impress upon legal subjects–sinners, penitents, and legal officers alike–the awe-inspiring power and majesty of the law. Respect; deference to authority; unblinking conformity–these are the values to be reinforced in this space.

My act of crossing my arms was, I suppose, in this context, an insolent gesture: I did not convey the appropriate respect. I was certainly not causing any disruption; I did not talk; I had not raised my voice.  I was not a threat of any sort–in case, you think that crossing arms allows for the concealment of weapons–because I had already been searched upon entrance to the court. No, quite simply, I had to be bent into that shape which would convey the appropriate respect for the court. And also the particular and peculiar blend of humility and servility that the law is looking for in those who ‘commit crimes.’ The guard’s admonishment was a reminder I was not following the director’s stage instructions.

A minute or so later, it was all done, and I headed to campus with a warning from the judge to ‘stay out of trouble.’ That will not be easy if the Governor of New York State does not restore funding to the City University of New York, if the CUNY administration does not sign a new contract with its faculty and staff.

Critical Theory And The Nature Of Law

My graduate seminar on ‘The Nature of Law‘ read and discussed critical race theory this past week. I’ve–along with my students–been thinking about the relationship of critical material like this–along with the critical legal studies readings we did over the last two weeks–to the definitional and foundational debates that so occupied us in the beginning of the semester. Certainly, we seemed to be distant, in our concerns and preoccupations, from the question of what law is ‘–at least in the way that, for instance, the folks engrossed in the natural lawpositivism debate were. In one dimension. For instance, precisely because critique seizes upon normative failings, we were often discussing what the law ought to be as opposed to what it is. But in another, we aren’t.

For note that in providing the sort of critique critical race theory and critical legal studies are advancing,  the kind that informs us it is an agent of social construction and reification, an instrument of ideological control, a diversion away from radical political and social change, toward change more palatable to the established orders, we are also being told a great deal about what the law is not. It is not an impartial dispenser of justice, and neither is it a reliable instrument of social change. The critical race theorist is able to remind us of law’s limitations and circumscriptions: the inability of its remedies to redress some kinds of particularly pernicious wrongs, its helplessness in the face of entrenched, ‘internal’ racism, the kind which deeply implicates every social, political, and economic reality it interacts with, its being frozen into accepted trajectories of reasoning and categorization that prevent it from playing the kind of role most optimistically envisaged for it by a certain species of liberal theorizing. For instance, the critical race theorist’s advancement of an argument for reparation shows how current legal reasoning and analysis is inflexibly locked into presumptive modes of inquiry and understanding about guilt, responsibility, and even the ontology of groups and persons, that lead to a reflexive rejection of such claims. Law constructs many social facts, and there are many others that construct it in turn.

The critical theorist also–most crucially–adds color and depth to the earlier bloodless debates about whether law is understood as a system of rules, the command of a sovereign or the imperfect realization of a social morality. Critical theory informs us that the identity, the placement within social and political orderings and hierarchies, of legal actors–and those subject to them–is a crucial determinant of the content of law; it is a crucial force in determining the trajectories and workings out of a legal system. (Feminist legal theorists, who we will begin reading in two weeks time, will obviously bolster such identification.)

The nature of law remains crucially undertheorized unless its definitions are bolstered by critique. For it is only by means of the latter that the history of law can be seen and examined. And that, of course, is how we bring its coherence and incoherence to light.

Fearing Tenure: The Loss Of Community

In ‘The Clouded Prism: Minority Critique of the Critical Legal Studies Movement‘, Harlan L. Dalton wrote:

I take it that everyone drawn to CLS is interested in specifying in concrete terms the dichotomy between autonomy and community. If so, talk to us. Talk TO us. Listen to us. We have lots to say, out of the depths of our own experiences. For many of us, our sense of community is a strength, a resource, something we struggle to hang onto, sometimes in the most peculiar ways, especially when the pull of autonomy is strongest. The day that I am awarded tenure, should that happy event occur, any pleasure that I experience will be more than offset by the extreme panic that I’m sure will set in; I will worry that I have been propelled (or more  honestly that I have wittingly, selfishly and self-destructively propelled myself) two steps further away from so much that has nurtured me for so long. Even for those of us who have revelled in the sense of connectedness that, paradoxically, racial oppression has conferred upon us, there is a kicker: we don’t have any choice in the matter. We can’t choose to be a part of the community; we can’t choose not to be a part of the community.

When I first read these lines, I was reminded of a conversation that used to recur in some of my therapeutic sessions: Why would you shrink from that which you most–supposedly–desire?

Some insight may be found in Dalton’s confession. Tenure would mean not being part of a ‘community’, membership in which, while a reminder of exclusion from another, was also a belonging in a very particular way. It meant the enjoyment of a very distinctive camaraderie, the dwelling in a state of being that had its own rewards.

I will not attempt to speak for Dalton’s experiences so let me just briefly address my own. Gaining tenure meant the end of a ‘struggle’; it meant the end of a state in which I had a very ‘clear and distinct’ goal, a terminus of achievement, one that had established yardsticks and baselines for me, calibrating my ‘progress’ and reminding me of how far I had come and how far I still had to go. I saw myself as member of a group marked by its presence in the margins, by its distance from the center, by a vaguely heroic air of struggle against economic, intellectual, and even political barriers. We were the untenured, the ‘assistant professors’; we had secured the prize of a tenure-track position, but we were still ‘battlers.’ I had trajectories to follow, and I had fellow-travelers. My lot was sympathized with; many were solicitous of the state of my journey, my distance from its destination. I was assured of celebrations and revelries were I to cross the finish line. I could look ahead and see the goal; I could feel my cohort around me, propping me up.

In the midst of all this, even as I desired that onward and upward movement, I knew what I would leave behind: a time and a place in which I was in possession of that dearest of things, a clear and unstinting purpose.

I am well-aware that a reflection like this, in the context of today’s job market, is an extremely self-indulgent one. I write it only to highlight the ironic and puzzling nature of the situations that Dalton and those in therapy might find themselves in, and of the artfully hidden blessings of even those portions of our lives that we might find oppressive and worth delivering ourselves from.

Springing Back To Teaching

I return to teaching tomorrow.

The 2015 spring semester kicks off at 9:30 AM with the first meeting of my ’20th Century Philosophy’ class. The class’ description reads:

This course will serve as an introduction to some central themes in the twentieth-century’s analytic, post-analytic (or neo-pragmatic), and continental traditions. Time permitting, the philosophers we will read and discuss include: Dewey, Du Bois, Russell, Heidegger, Wittgenstein, Ayer, Gadamer, Sartre, de Beauvoir, Austin, Davidson, Foucault, Derrida, Rorty, Rawls, and MacIntyre.

Yes, this is a little ambitious, and I’m sure some of my readings will drop off the end of the queue as the end of the semester approaches. Besides, teaching some of the folks on that list makes me a little apprehensive; I have my expository work cut out for me.

Then at 11AM, almost immediately after I finish that class, I will hold the first meeting of my ‘Philosophical Issues in Literature’ class. (The fifteen minute break between classes, to put it bluntly, blows chunks; I barely have time to walk back down to my office, drop off my books, grab a sip of water, pick up the next set of books and then head out again.)

On Monday, my graduate class–‘The Nature of Law’–will begin at the CUNY Graduate Center. This  class’ description is as follows:

This course will serve as an introduction to theories of natural law, legal positivism, legal realism, critical legal studies, legal pragmatism, critical race theory, and feminist legal theory.  Some of the topics to be covered will include: the varieties of natural law, the Hart-Fuller debate, the relationship between legal realism and legal positivism, the political critique  of law mounted by critical legal studies and feminist legal theory, the legal construction of race (and science), law as ideology, the nature of pragmatic jurisprudence.  There will be, hopefully, an interdisciplinary flavor to our readings and class discussions.

The first half of the class has a conventional feel to it with the usual definitional debates taking center stage; the second half takes a critical look at the law.

Three classes; two new preps. The repeat prep is the ‘Philosophical Issues in Literature’ class, which I taught last semester. I had considered changing the reading list dramatically, but instead, dropped two novels–‘Canticle for Leibowitz‘ and ‘Dog Stars‘–from my original list and retained the remaining five. I did this for two reasons. One, I’d like to take a second crack at teaching these novels; even as I taught them last semester, I was aware my understanding of them had changed, and I was not able to cover all the issues they raise in their many different ways. Second, more prosaically, my two new classes threatened to swamp me with their reading lists; three new preps would have spread me out a little too thin.

The winter break–some of which I used to try to complete a book manuscript long overdue with its publisher–is over. There was some hopeful chatter about a snow day tomorrow, but truth be told, I’d rather get this ball rolling and get on with the business of making headway on the business of teaching. A winter break spent at home always makes me a little stir crazy. I’d much rather be walking to campus, getting in front of my classes and talking philosophy.

Famous last words: bring it on.

Geertz on Comparative Anthropology and the Law-Fact Distinction

(Continuing my series of notes on Clifford Geertz’s Local Knowledge: Further Essays in Interpretive Anthropology, Basic Books, New York, 1983; earlier notes appear here and here.)

Geertz’s Local Knowledge: Fact and Law in Comparative Perspective (first presented as the Storrs Lectures for 1981 at Yale Law School; an online version is available) should be essential reading for philosophers of law. In it, Geertz explores the relationship between law and anthropology by way of examining how comparative anthropology–especially that concerned with legal systems in different cultures–provides us a means of examining how our legal categories and assumptions could be reconfigured. To confront a legal mind from another culture is to not only examine a new legal sensibility but to have ours made more aware of its particular qualities: how has it sliced up the world and established its categories, how has it come to this particular ontology? There is a whiff of relativism and incommensurability in the air but,

[I]t is one that neither argues for nihilism, eclecticism, and anything goes, nor that contents itself with pointing out yet once again that across the Pyrenees truth is upside down. It is, rather, one that welds the processes of self-knowledge, self-perception, self-understanding to those of other-knowledge, other-perception, other-understanding; that identifies, or very nearly, sorting out who we are and sorting out whom we are among. And as such, it can help both to free us from misleading representations of our own way of rendering matters judiciable (the radical dissociation of fact and law, for example) and to force into our reluctant consciousness disaccordant views of how this is to be done (those of the Balinese, for example) which, if no less dogmatical than ours, are no less logical either.

Geertz holds out this possibility of transformation because of the view of law that he holds, one which assimilates it to:

[N]ot… to a sort of social mechanics, a physics of judgment, but to a sort of cultural hermeneutics, a semantics of action. What Frank O’Hara said of poetry, that it makes life’s nebulous events tangible and restores their detail, may be true as well, and no less variously accomplished, of law.

Such an understanding of law has immense potential to inform philosophical debates on the nature of law, on whether natural law, positivist, legal realist or critical legal theories best describe it. Central to Geertz’s intervention in this debate–via his empirical attention to the three alternative systems that he considers–is his critique of the fact-law distinction:

The rendering of fact so that lawyers can plead it, judges can hear it, and juries can settle it is just that, a rendering: as any other trade, science, cult, or art, law, which is a bit of all of these, propounds the world in which its descriptions make sense. I will come back to the paradoxes this way of putting things seems to generate; the point here is that the “law” side of things is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real. At base, it is not what happened, but what happens, that law sees; and if law differs, from this place to that, this time to that, this people to that, what it sees does as well…..

If one looks at law this way, as a view of the way things are, like, say, science or religion or ideology or art–together, in this case, with a set of practical attitudes toward the management of controversy such a view seems to entail to those wedded to it–then the whole fact/law problem appears in an altered light. The dialectic that seemed to be between brute fact and considered judgment, between what is so and what is right, turns out to be between…a language, however vague and unintegral, of general coherence and one, however opportunistic and unmethodical, of specific consequence.

Geertz’s essay makes for essential reading, not just because it abounds in marvelous insights like these, but because of the richly informed comparative study it provides of what Geertz terms the ‘Islamic, Indic, and Malaysian” legal systems. It should be read by anyone interested in the conceptual foundations of the law.