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.

Anticipating Another Encounter With Books And Students

This coming fall semester promises to be a cracker: I have the usual heavy teaching load of three classes (including two four-credit classes whose lectures will be one hundred minutes long, thus making for a very exhausting Monday-Wednesday sequence of teaching running from 9:05 AM to 3:30 PM, with an hour break between the second and third class meetings); and I will be trying to make some headway on a pair of manuscripts, both due next year in May and August respectively (one project examines the Bollywood war movie and the Indian popular imagination, another conducts a philosophical examination of the Indian film director Shyam Benegal’s work.)

The three classes I will be teaching this semester are: Social Philosophy, Philosophy of Law, and Landmarks in the History of Philosophy. The following are their reading lists: the first two classes below feature my favored kind of reading assignments–pick a few select texts and read them from cover to cover; this is a slightly risky move, given that my students–and  I–might find out, together, that the text is ‘not working.’ For whatever reason; some works do not bear up well under closer inspection in a classroom, some material turns out to be tougher to teach and discuss than imagined, and so on. When it works though, a detailed and sustained examination of a philosophical work pregnant with meaning can work wonders, allowing my students and I to trace the various strands of complex arguments at leisure, drawing out their many interpretations and understandings as we do so.

Social Philosophy: 

Hannah Arendt, The Human Condition, University of Chicago Press; 2nd ed., 1998,

Herbert Marcuse, One-Dimensional Man, Routledge Classics,

Sigmund Freud, Civilization and its Discontents, W. W. Norton & Company, 1989,

Landmarks in the History of Philosophy:

William James, Pragmatism, Dover, 1995

Mary Wollstonecraft, A Vindication of the Rights of Woman, Dover, 1996,

Thomas Szaz, The Myth of Mental Illness, Harper Perennial

Philosophy of Law: 

‘The Case of the Speluncean Explorers’ by Lon Fuller (to introduce my students–briefly and vividly, hopefully–to theories of natural law, positivism, and some tenets of the interpretation of legal texts.)

HLA Hart, ‘On Primary and Secondary Rules’

Justice Oliver Wendell Holmes, ‘The Path of the Law’

David Caudill and Jay Gold, Radical Philosophy of Law

Besides these three classes, I will also be conducting an independent study with an undergraduate student on the relationship between Nietzsche’s writings and Buddhism; this promises to be especially fascinating. The following is the list of books my student and I will work through over the course of the semester:

Nietzsche and Buddhism: A Study in Nihilism and Ironic Affinities

Nietzsche and Zen: Self Overcoming Without a Self 

Nietzsche and BuddhismProlegomenon to a Comparative Study

Nietzsche and Buddhist Philosophy

Every semester, as always, brings on that same trembling anticipation: books and students and all the promises those encounters hold–the revelations, the surprises, the discoveries, the missteps. What a great way to spend one’s waking hours; I will have ample opportunities to count my blessings in the weeks that lie ahead.

Academics And Their Secretaries

In the preface to The Age of Revolution 1789-1848  (Signet Classic, New York, 1962, p. xvi) Eric Hobsbawm writes:

Miss P. Ralph helped considerably as secretary and research assistant Miss E. Mason compiled the index.

In the preface to the new edition (1969) of Dialectic of Enlightenment: Philosophical Fragments (University of Stanford Press, Cultural Memory in the Present Series, ed. Gunzelin Schmid Noerr, p. xi, 2002) Theodore Adorno and Max Horkheimer write:

No one who was not involved in the writing could easily understand to what extent we feel responsible for every sentence. We dictated long stretches together; the Dialectic derives its vital energy from the tension between the two intellectual temperaments which came together in writing it. [emphasis added]

In the preface to The Morality of Law (Yale University Press, New Haven, 1964, p. vi), Lon Fuller writes:

In closing I want to express an appreciation for the contribution made to this book (and to my peace of mind) by Martha Anne Ellis, my secretary….[her] dedication and perception have largely lifted from my concern the time-consuming and anxiety-producing details that always accompany the conversion of a manuscript into final printed form.

If you’ve looked long enough at the prefaces and acknowledgements of academic books written in the past century you will often find notes thanking secretaries for typing up the manuscript of the book. Presumably the secretaries in question took a pile of handwritten pages and painstakingly converted them into typed form before sending them off to the publisher for reviewing, typesetting, and then finally printing. (My guess is that the secretaries of Messrs Hobsbawm and Fuller typed their ‘bosses’ manuscripts as part of the ‘help’ and ‘contributions’ they provided.) Matters might be thought considerably different these days when sophisticated desktop publishing software sits on everyone’s desk, and publishers demand camera-ready copies of manuscripts and articles. But you would not lose too much money on betting that where academics can afford it–mostly at private universities–they will draw upon the assistance of their department secretaries in preparing their manuscripts. Most of whom, if not all, will still be women.

Intellectual work is always facilitated by the work of others. Back in the good old days, when most academics were men, they could count on the faithful support of their wives at home who would cook, clean, and bring up their children, and of their secretaries at work, who would type up manuscripts, prepare indices, make coffee and copies, and perhaps place calls to publishers in addition to typing up letters to them. Those with grace acknowledge such assistance in their prefaces and acknowledgments; others carry on blithely, secure in the comfort of knowing they live in a world which traffics in the myth of the ‘solitary genius,’ the ‘lone artist,’ the ‘brilliant individual.’ They imagine their reputation is constructed by their mental labors alone; they do not notice that it is propped up by the labors of others too. Theirs was the glamorous bit; the unglamorous bit is easily forgotten.

It takes a village to raise a child; it took an entire departmental office to write a book.

The Cannibalism Taboo And Becoming A Ghost

The use of cannibalism in Lon Fuller‘s “The Case of the Speluncean Explorers“–which I assigned as a reading this semester to kick off my philosophy of law class’ take on the nature of law and legal interpretation–is, of course, a deliberate choice to render the circumstances of that fictional case especially dramatic, to place the actions of those who killed and ate the unfortunate Whetstone beyond the pale. The presence of cannibalism makes plausible the claim by Justice Foster that the explorers, by their actions, had passed into ‘a state of nature’- presumably a zone where human moral and legal evaluation and regulation breaks down. Cannibalism is used too, in tales of post-apocalyptic horror, to indicate that the terminal stage of a breakdown in humanity and the social order has been reached. (Think of the aptly named ‘Terminus‘ in The Walking Dead; of the ‘meat locker‘ in The Road.) Cannibalism is where the road to perdition takes you; it is taboo.

In unpacking the meanings of ‘taboo’ in Totem and Taboo Freud marked out one cluster associated with ‘taboo’ as ‘uncanny, dangerous, forbidden, and unclean.’ He found ‘the real sources of taboo’ in places of the mind ‘where the most primitive and the most enduring human impulses have their origin, namely, the fear of the effect of demonic powers….concealed in the tabooed object.’ (These later become ‘autonomous’ and become ‘the compulsion of custom and tradition and finally the law.’)

In the case of cannibalism, the fear of the demonic powers is especially strong: the guilty cannibal perceives himself as consuming not mere flesh but a person. The presence of the person imbues the flesh that is eaten. Moreover, the flesh eaten by the cannibal is too familiar. There is no distance from it, the kind that makes the killing and eating of other animals possible. The visage reminds us of ours; we all too easily imagine ourselves as the animal killed for the feast; we can conjure up its visions of pain and suffering; we can place ourselves in its stead with little difficulty. The spirits that animated the body of the cannibal’s meal are not strangers to us then; we live with them every day. The ‘dangerous power which is transmitted by contact with the object so charged’ that Freud spoke of is, in the case of a human eaten by another human, just the life-force or the living spirit which is supposed to live on in non-material form in ghosts.  As Freud noted, ‘any one who has violated such a prohibition assumes the nature of the forbidden object as if he had absorbed the whole dangerous charge.’  To eat another human being is to make yourself into a living ghost; to risk contamination by an invading spirit by placing it within us. A cannibal eating another human is not just eating flesh but turning itself into a ghost. Perhaps this is why the cannibal seems inexplicable; we cannot imagine inviting demonic possession in the way he does.

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.

Lon Fuller On The Inability Of The Judiciary To Police The Police

In The Morality of Law: Revised Edition (Yale University Press, New Haven, 1969), Lon Fuller writes:

In this country it is chiefly to the judiciary that is entrusted the task of preventing a discrepancy between the law as declared and as actually administered. This allocation of function has the advantage of placing the responsibility in practiced hands, subjecting its discharge to public scrutiny, and dramatizing the integrity of the law. There are, however, serious disadvantages in any system  that looks to the courts as a bulwark against the lawless administration of the law. It makes the correction of abuses dependent upon the willingness and financial ability of the affected party to take his case to legislation. It has proved relatively ineffective in controlling lawless conduct by the police, this evil being in fact compounded by the tendency of lower courts to identify their mission with that of maintaining the morale of the police force. [pp. 81-82]

There is little need to emphasize the topicality or relevance of these words, originally uttered in 1964 by Fuller, during the delivery of the Storrs Lectures on Jurisprudence at Yale Law School. Still, one is almost unavoidably drawn to the last sentence of the excerpt above. The considerations raised there are especially worth revisiting. (Fuller’s larger project, of course, is to argue that law-abiding behavior is better ensured by a consideration of the moral weight attached to any injunction of the law.)

In the Michael Brown and Eric Garner cases, both of which resulted in acquittals and failures to indict the police officers, it was transparent to most dispassionate observers that the judiciary did not see its work as upholding the law, as much as it saw it as supporting the police force, a ‘partner’ in the work it was engaged in elsewhere. Prosecutors and district attorneys work with police forces to enforce the law; they were not interested in bringing any of their ‘co-workers’ to justice, to subjecting them to the same standards employed on other legal subjects.

These facts are worth keeping mind when we think about the developments in the latest case of murderous policemen: the shooting, in South Carolina, of Walter Scott, an unarmed black man, supposedly for grabbing an officer’s stun gun. The police officer, Michael T. Slager, who shot him in the back as he ran away–and then planted evidence, the allegedly stolen stun gun, next to Scott’s body–is now facing murder charges. My first reaction to this story dipped deep into a constantly replenished well of cynicism:

My guess is, the new strategy is go ahead and indict, and avoid the fuss that will be made if you don’t. You can always acquit later with the right kind of jury.

Hours have passed since I wrote the comment and I see no reason to reconsider. Video evidence–the kind that led to the formulation and pressing of the initial murder charges–has never been considered probative when it comes to assaults on black men by police. And as always, the enduring and transient members of the judiciary–like the jury–will, in all likelihood, worry more about the hit the morale of the good police officers of South Carolina, and perhaps nationwide will take. Such dangerous work, such little reward; surely these men in the line of duty, standing shoulder to shoulder with us in the administration of the law, should be forgiven their minor transgressions?