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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CS Lewis’ Mere Christianity: Masterfully Flawed Apologetics

CS Lewis‘ Mere Christianity is rightly acknowledged as a masterpiece of Christian apologetics; it is entertaining, witty, well-written, clearly composed by a man of immense learning and erudition (who, as befitting the author of the masterful Studies in Words, cannot restrain his delightful habit of providing impromptu lessons in etymology.) Lewis is said to have induced conversions in “Francis Collins, Jonathan Aitken, Josh Caterer and the philosopher C. E. M. Joad” as a result of their reading Mere Christianity, and it is not hard to see why. The encounter of a certain kind of of receptive mind with the explication of Christian doctrine that Lewis provides–laden with provocative analogies and metaphors–is quite likely to lead to the kind of experience conversion provides: an appeal to an emotional core harboring deeply experienced and felt needs and desires, which engenders a radical shift in perspective and self-conception. Christianity offers a means for conceptualizing one’s existential and pyschological crises–seeing them as manifestation of a kind of possession, by sin, by the Devil–and holds out the promise of radical self-improvement: the movement toward man–all men–becoming Christ, assuming a moral and spiritual perfection as they do so.  All the sludge will fall away; man will rise and be welcomed into the bosom of God; if only he takes on faith in Christ and his teachings. This is powerful, heady stuff and its intoxicating powers are underestimated only by those overly arrogant about the power and capacities of reason and ratiocination to address emotional longings and wants.

It is clear too, from reading Lewis, why Christianity provoked the ire of a philosopher like Nietzsche. For they are all here: the infantilization of man in the face of an all-powerful, all-seeing, all-knowing, all-good God; the terrible Godly wrath visible in notions such as damnation; the disdain for this life, this earth, this abode, its affairs and matters, in favor of another one; the notion of a ‘fallen man’ and a ‘fall from grace’ implying this world is corrupt, indeed, under ‘occupation’ by an ‘enemy force.’ There is considerable self-abnegation here; considerable opportunity for self-flagellation and diminishment. No wonder the Existential Stylist was driven to apoplectic fury.

Lewis takes Biblical doctrine seriously and literally; but like any good evangelical he is not above relying on metaphorical interpretation when it suits him. (This is evident throughout Mere Christianity but becomes especially prominent in the closing, more avowedly theological chapters.) Unsurprisingly for a man of his times (who supports the death penalty and thinks homosexuals are perverts), the seemingly retrograde demand that wives unquestioningly obey their husbands, which might have sparked alarms in a more suspicious mind about the sociological origins of such a hierarchy-preserving notion, is stubbornly, if ever so slightly apologetically, defended.

Lewis’ arguments are, despite the apparent effort he takes to refute views contrary to Christian doctrine, just a little too quick. His infamous trilemma arguing for the Divinity of Jesus and his dismissal of the notion that his supposed Natural or Universal Law of Morality cannot be traced to a social instinct are notoriously weak (the former’s weaknesses are amply referenced in the link above while the latter simply pays no attention to history, class, and culture.)

But Mere Christianity, even if deeply flawed, is still worth a read: you witness an agile mind at work; you encounter a masterful writer; you find yourself challenged to provide refutations and counter-arguments; you even feel an emotional tug or two, letting you empathize with those who do not think like you do. That’s a pretty good catch for one book.

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?

Arendt, the Problem of ‘The Absolute’ and Revolutionary Fascination by Antiquity

There are many, many remarkable passages in Hannah Arendt‘s On Revolution, which forms part of my reading list for this fall semester’s Political Philosophy seminar. In particular, there is a profusion of them in Chapter 5, ‘Novus Ordo Saeclorum’. Here Arendt offers an analysis of the problem of legitimacy of post-revolutionary government i.e., the problem of ‘the absolute’, which confronts any system of power that dispenses with transcendent and transhumane sources of sanction (like those relied upon by the Church and monarchies) and concentrates on seeking foundations in the secular, the mundane, the profane, the earthly, the human. Arendt, in attempting to show how this problem might have been addressed by the American revolutionaries, goes on to note the inspiration that Roman antiquity provided to American and French revolutionaries alike, and provides an understanding of ‘revolution’ as ‘restoration’; it is a treatment remarkable both for its erudition and insight and should be required reading for any student of political theory. This chapter should be required reading, too, in any Philosophy of Law course for the keen understanding it displays of the natural and positive law debates. The relationship of law to political power, which is often missing in standard philosophical takes on these, is front and center in Arendt’s analysis.

I hope to write a more detailed analysis of this chapter sometime soon; for now, here is a tiny sampler, one which picks up on the perplexity that might be occasioned by noting the enthusiasm revolutionaries had for the ancients, and which, I think, is still relevant, as is most of Arendt’s analysis, for our day and age:

It has often been noticed that the actions of the men of the revolutions were inspired and guided to an extraordinary degree by the examples of Roman antiquity, and this is not only true for the French Revolution, whose agents had indeed an extraordinary flair for the theatrical; the Americans, perhaps, thought less of themselves in terms of ancient  greatness – though Thomas Paine was wont to think ‘what Athens was in miniature, America will be in magnitude’ – they certainly were conscious of emulating ancient virtue. When Saint-Just exclaimed, ‘The world has been empty since the Romans and is filled only with their memory, which is now our only prophecy of freedom’, he was echoing John Adams, to whom ‘the Roman constitution formed the noblest people and the greatest power that has ever existed’, just as Paine’s remark was preceded by James Wilson’s prediction that ‘the glory of America will rival- it will outshine the glory of Greece’. I have mentioned how strange this enthusiasm for the ancients actually was, how out of tune with the modern age, how unexpected that the men of the revolutions should turn to a distant past which had been so vehemently denounced by the scientists and the philosophers of the seventeenth century. And yet, when we recall with what  enthusiasm for ‘ancient prudence’ Cromwell’s short dictatorship had been greeted even in the seventeenth century by Harrington and. Milton, and with what unerring precision Montesquieu, in the first part of the eighteenth century,  turned his attention to the Romans again, we may well come to the conclusion that, without the classical example shining through the centuries, none of the men of the revolutions on either side of the Atlantic would have possessed the courage for what then. turned out to be unprecedented action. Historically speaking, it was as though the Renaissance’s revival of antiquity that had come to an abrupt end with the rise of the modern age should suddenly be granted another lease on life, as though the republican fervour of the short-lived Italian city-states – foredoomed, as Machiavelli ,knew so well, by the advent of the nation-state – had only lain dormant to give the nations of Europe the time to grow up, as it were, under the tutelage of absolute princes and enlightened despots.

However that may be, the reason why the men of the revolutions turned to antiquity for inspiration and guidance was most emphatically not a romantic yearning for past and tradition. Romantic conservatism – and which conservatism worth its salt has not been romantic? – was a consequence of the revolutions, more specifically of the failure of revolution in Europe; and this conservatism turned to the Middles Ages, not to antiquity; it glorified those centuries when the secular realm of worldly politics received its light from the splendour of the Church, that is, when the public realm lived from borrowed light. The men of the revolutions prided themselves on their ‘enlightenment’, on their intellectual freedom from tradition, and since they had not yet discovered the spiritual perplexities of this situation, they were still untainted by the sentimentalities about the past and traditions in general which were to become so characteristic for the intellectual climate of the early nineteenth century. When they turned to the ancients, it was because they discovered in them a dimension which had not been handed down by tradition – neither by the traditions of customs and institutions nor by the great tradition of Western thought and concept. Hence, it was not tradition that bound them back to the beginnings of Western history but, on the contrary, their own experiences, for which they needed models and precedents. And the great model and precedent, all occasional rhetoric about the glory of Athens and Greece notwithstanding, was for them, as it had been for Machiavelli, the Roman republic and the grandeur of its history.

Note: The problem of the absolute is a familiar one: it appears in another form in discussions of the foundations of ethics, in the problem of finding an absolute authority to back up moral obligations when belief in divine commands is lacking; in The Brothers Karamazov it is what perplexed Dimitri when he heard Father Paissy recount Ivan’s argument that immorality follows without belief in immortality.

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.