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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Property As Legal Construct

Property appears an abstract, transcendent, metaphysical concept from afar but on closer inspection reveals itself to be legally constructed. Like ‘person,’ property obtains its philosophical traction from a legal, economic, and social imperative to distribute resources, and thus, wealth and power.  As a canonical legal textbook puts it, the “property system” that results from a particular set of legal arrangements can “order relations”; it can “confer benefits and impose burdens.” The law describes how it is acquired by discovery, capture, creation, being found, adverse possession, and gift. These accommodations of property are so fundamental that property is written into our conceptions of ourselves, in claims that “every man has a property in his own person.”

This taxonomy of ways of acquiring property highlight particular modes of interaction with the world in terms of their property creation properties: ‘this way of interacting with the world counts as an acquisition of property if it meets the requisite legal conditions’; the workings of the common law of property are refinements, over an extended period of time, of these interactions. Law thus provides a specification of the conditions under which humans interact with the world to bring property into being, and how other humans should accordingly interact with a world in which property exists, if they are to avoid particular consequences arising from regulations that preserve the categorization of particular objects as property. (Computer software—in its binary and text forms—had to be legally demarcated as ‘ownable’ and ‘copyrightable’ before it could be termed ‘property’ of any kind.) These consequences could, for instance, interfere with ends and purposes served by the provision of private property. The law of property demarcates a range of possible actions and restrictions on our freedom; various pushings, proddings, and pokings of the world become illicit because they may constitute, for instance, ‘trespass on chattels.’ This categorization of the world into property and not-property acquires ontological significance: property becomes part of our socially constructed reality, reconfigurable if social needs change.

Property is not discovered; it is made, not by the act of mixing labor with supposedly ‘fallow land,’ as Locke would have had it, but by the scaffolding provided by the surrounding legal system. Property is a wholly positivistic legal concept; it makes a supposedly natural right ‘real’ and acquires its ontological weight from law. The legal conceptions of property are indifferent to the kinds of property system they create: different sets of rules create different systems, with different balances of power for owners and others; such allocations of property might lock in and preserve existing power relations.

The best justifications—philosophical ones—for system of property are pragmatic, outcome oriented ones. There is no ‘natural’ or ‘objective’ independent basis upon which to rest the ‘protection’ of property:

The property concept had no determinate meaning or positive content. It was a contingent decision whether the owner of the factory machinery should also own the products of the factory, or whether the owner also should control the management of the plant. [Gary Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151 (1985)]


Chelsea Manning’s Bad Luck With The American Polity

In The Passion of Bradley Manning: The Story Behind The Wikileaks Whistleblower(Verso Press, New York, 2013) Chase Madar writes:

If any lesson can be drawn from the Manning affair, it’s that leaks can make a great difference if there is organized political muscle to put them to good use. Information on its own is futile; as useless as those other false hopes of the global center-left, international law and its sidekick, the human rights industry, all of which have their uses, but are insufficient to stop wars and end torture. This is not to denigrate the achievements of the person who have us this magnificent gift of knowledge about world affairs. If the disclosures have not changed US statecraft–yet–the fault lies not in the cables, but in the pathetic lack of political organization among those individuals who don’t “have a position” in Halliburton stock–the 99% if you will.

There are two theses presented here by Madar: a) information is sterile unless coupled with political organization and action, and b) international law and the ‘human rights industry’ are ‘insufficient to stop wars and end torture’–they are ‘false hopes.’ (The former claim may be understood as a variant of Marcuse‘s praxis + theory axiom of politics.)

The seeming inefficacy of Chelsea Manning‘s leaks of a veritable treasure trove of revelations about the conduct of US foreign policy and warfare now becomes explicable; those seeds fell on infertile ground. Manning’s leaks were fed to a polity that is at heart conformist and accepting of authority, and whose most suffering faction–the staggering 99%–is disorganized, apathetic in large sectors, and all too easily resigned to a fate characterized by endless wars and a Nietzschean endless recurrence of the same cast of political characters and ideologies ruling the roost. ‘On its own’ information has no political valence; it is only when it serves as the premise of a political argument that it acquires traction.  At the risk of invoking the wrath of those who dislike military metaphors, perhaps we can think of information as ammunition; indispensable, yet insufficient without the right sorts of blunderbusses. (That pair of ‘false hopes of the global center-left, international law and its sidekick, the human rights industry’ are similarly indicted: both, on their own, decoupled from the capacity to enforce and from organized political muscle, are reduced to platitudes, mouthed in predictable time and fashion by the usual suspects. No enforcement authority backs them up; and the political realism of the postivisitic conception of both law and rights appears ever plausible.)

America got lucky with Chelsea Manning; but the luck only went in one direction. Manning didn’t get lucky with her nation; she was feeding information to a polity that didn’t know what to do with it (and which instead, called her a ‘traitor’ and imprisoned and tortured her.) The reception to the Panama Papers, which despite the initial furore, and even the odd resignation or two, is best described as equal parts yawn and shrug, provides further confirmation for this claim. Artful dodging of local jurisdictions to enable ‘fraud, kleptocracy, tax evasion, and evading international sanctions’ is old hat; and there is nothing we can do about it anyway.

Back to rearranging chairs on deck.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.

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.