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)]

 

Durkheim On Social Facts As Things: Methodology As Metaphysics

In The Rules of Sociological Method (The Free Press, 1982, pp. 35-36) Émile Durkheim writes:

The proposition which states that social facts must be treated as things…stirred up the most opposition. It was deemed paradoxical and scandalous for us to assimilate to the realities of the external world those of the social world. This was singularly to misunderstand the meaning and effect of this assimilation, the object of which was not to reduce the higher forms of being to the level of lower ones but…to claim for the former a degree of reality at least equal to that which everyone accords to the latter….we do not say that social facts are material things, but that they are things just as are material things, although in a different way.

What indeed is a thing? The thing stands in opposition to the idea….A thing is any object of knowledge which is not naturally penetrable by the understanding….It is all that which the mind cannot understand without going outside itself, proceeding progressively by way of observation and experimentation from those features which are the most external and the most immediately accessible to those which ‘are the least visible and the most profound. To treat facts of a certain order as things is therefore not to place them in this or that category of reality; it is to observe towards them a certain attitude of mind. It is to embark upon the study of them by adopting the principle that one is entirely ignorant of what they are, that their characteristic properties, like the unknown causes upon which they depend, cannot be discovered by even the most careful form of introspection.

This passage of Durkheim’s is rich in metaphysical import–precisely because it offers a definition of ‘thing’ and suggests existence can be ascribed to orders of being that are not ‘material,’ and which are not for that reason, lacking in ‘reality.’ The fundamental opposition for Durkheim is between objects of the intellect–‘ideas’–and those that are not–things, which require externally directed study. These ‘things’ can be ‘material,’ made up of material substance, or they can have some unknown constitution. But a ‘thing’s’ reality is not a matter of its composition, or its location in space and time; rather, it is a matter of what relation our thought bears to it. The opposition between the ‘material’ and the ‘immaterial’ is not one between ‘existence’ and ‘non-existence’; the immaterial can have just as much reality as the material. Rather, if the ‘thing’ in question is an object of a particular kind of study, if it is a component of our theoretical schemes, it has reality.  The notion of ‘reality’ coming in ‘degrees’ might remain obscure, but whatever it is, Durkheim suggests that the lack of materiality of social facts does not prevent them from being ‘things’ if our methods of study for them–non-introspective, directed outward–treat them as such. In this blend of metaphysics and epistemology Durkheim’s claims reveal a certain pragmatist sensibility at the heart of the social science whose foundations he was establishing; here, yet again, Durkheim shows that methodology is metaphysics.

Horkheimer And Adorno On The ‘Convergence’ Of Art And Science

In Dialectic of Enlightenment: Philosophical Fragments (University of Stanford Press, Cultural Memory in the Present Series, ed. Gunzelin Schmid Noerr, p. 13, 2002) Max Horkheimer and Theodor Adorno write:

The prevailing antithesis between art and science, which rends the two apart as areas of culture in order to make them jointly manageable as areas of cultures, finally causes them, through their internal tendencies as exact opposites, to converge. Science in its neopositivist interpretation, becomes aestheticism, a system of isolated signs devoid of any intention transcending the system; it becomes the game which mathematicians have long since proudly declared their activity to be.  Meanwhile, art as integral replication has pledged itself to positivist science, even in its specific techniques. it becomes indeed, the world over again, an ideological doubling, a complicated reproduction.

Physics and mathematics are often said to find a merger of sorts in string theory, whose speculations dabble in dimensions galore and disdain empirical confirmation. Here, physicists may be found approaching registers of speech only thought to be found in ‘pure’ mathematicians; their work appears to be exclusively concerned with, and expressed through, sign and symbol; the beauty of their creations could be assessed as works of theoretical art. Within such an evaluative dimension might lie string theory’s most coveted prize, once it has disdained the grubby business of verification and correspondence. The arc nears completion here. Elsewhere, art is condemned to realist reproduction, censured for flights of irresponsible fancy. It is asked to leave behind its critical and absurdist and skeptical being in favor of one more firmly anchored in the here and now, all the better to clone it, and faithfully and apologetically do its bit for its continued propagation; art is informed of the need to be reactionary. Such critiques might sound old-fashioned to the worldly-wise in the twenty-first century, but they are never too far from the surface when worries about self-indulgent or narcissistic or navel-gazing art are periodically expressed.

As can be seen, the situation that Horkheimer and Adorno described is as present today as it was when their words were originally penned. Realist art and aestheticist science still converge; the former is urged to stick to the sensible and the apprehensible; the latter seeks to move away from tedious correspondence and to go on flights of symbolic fantasy.  Horkheimer and Adorno urged this observation upon us to make us notice its ideological import: science becomes exclusively positivist, unconcerned with intervention; art becomes implicated in the ‘realities’ it seeks to depict. The standpoint of critique is  lost; science and art are enlisted as allies through various understandings that are not normatively neutral. This ideological maneuver is especially acute because science aspires to epistemic hegemony via its apparent commitment to realism and art aspires to radical critique through its lack of fidelity to that same standpoint. The ‘real’ aspires to fantasy; the fantastic is instructed to conform to the ‘real.’ Both are defanged and removed from the realm of critical theory and its interjections into the world of politics and society.