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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On Bad Memories And Moving On

A few weeks ago, while stumbling around on Facebook, I found an old ‘acquaintance’ of mine: a man who, over thirty years ago, went to the same boarding school as I did. I poked around further; his page was not guarded by his privacy settings from snoops like me. On it, I found a group photograph taken in my boarding school days: a dozen or so familiar faces stared back at me. I hadn’t seen them in thirty-five years. I poked a bit further, as I clicked on their tagged faces in the photographs, and visited their friends’ lists. On one of them, I found a Facebook profile of a ‘senior,’ someone who used to be a member of the class that had supplied the prefects for my last year in boarding school. (I left my boarding school after the tenth grade, after two short years there; this gentleman was the member of the graduating class that year.) On his page, I found photographs of a class reunion, conducted on the campus of my old boarding school. There they were, the members of that graduating class, the ‘Sixth Form,’ ex-prefects included, lounging about in suits and ties,  all of them grey-haired, some pot-bellied, reenacting their glory days by posing in front of various school locations, swapping tall tales about the good ‘ol days.

I stared and stared. Here they were, the officially sanctioned bullies of the senior class in school, the ones given license to enforce the school’s draconian disciplinary code in their own particular style: they could make you run punishment drills, the dreaded ‘PD’s, for a wide-ranging list of offenses; they could hit you with cricket bats or hockey sticks, or just slap you hard across the face if you were deemed insolent; they could tell you to go get your trouser pockets stitched up by the school tailor if you were caught walking around with both hands in your pockets; and on and on it went. They could, and they did. Power of the absolute varietal was granted them, and they exercised it; here, there was no shyness to be found. And it corrupted them, if their interactions with those below them, their subjects, the ones who dreamed of becoming abusers themselves when their turn came, was any indication.

I was tempted to write, as a lurker, in the comments space, “Did you guys reminiscence about the time when you were bullies and beat up those younger and weaker than you?” But I didn’t. They’d moved on; they had to. My memories remained; they had been stirred up by the photographs I had just viewed, and I’d already found other ways to integrate them into my life. (Including writing a book, in progress, about my boarding school days.) The academic philosopher in me also said that these were not the same persons I knew; they had changed, they wouldn’t know what to make of my gate-crashing remark.

I clicked out, and moved on. And wrote here instead.

Bertrand Russell On Deterrence By Making ‘Freedom More Pleasant’

In ‘What I Believe,’ an essay whose content–selectively quoted–was instrumental in him having his appointment at the City College of New York revoked¹, Bertrand Russell wrote:

One other respect in which our society suffers from the theological conception of ‘sin’ is the treatment of criminals. The view that criminals are ‘wicked’ and ‘deserve’ punishment is not one which a rational morality can support….The vindictive feeling called ‘moral indignation’ is merely a form of cruelty. Suffering to the criminal can never be justified by the notion of vindictive punishment. If education combined with kindness is equally effective, it is to be preferred; still more is it to be preferred if it is more effective….the prevention of crime and the punishment of crime are two different questions; the object of causing pain to the criminal is presumably deterrent. If prisons were so humanized that a prisoner got a good education for nothing, people might commit crimes in order to qualify for entrance. No doubt prison must be less pleasant than freedom; but the best way to secure this result is to make freedom more pleasant than it sometimes is at present.

Russell was a logician, so he cannot resist making a simple logical point here: if you want prison to represent an uncomfortable alternative to ‘the world outside’ that constitutes an effective deterrent to crime, you have two choices: make prison conditions much worse, or make the state of ‘the world outside’ much better. Our reactions to the world we encounter rely on contrasts and conditioning; it took a princess used to the utter luxury of royal palaces to find the pea under the pile of mattresses unbearable; the parched wanderer in the desert finds the brackish water of a dusty oasis the sweetest nectar of all. It is not inconceivable that many who are used to endemic and grinding poverty, hunger, and violence might find prison not such a bad alternative, and find that its supposed terrors, when viewed from afar, are entirely lacking in deterrent effect. (That sad old saw about criminals committing crimes in order to get three square meals and a roof over their heads perhaps bears repeating here.)

Unsurprisingly, the vindictive and retributive mentality of societies informed at heart by the “theological conception of ‘sin’,” entirely unconcerned with the actual and effective amelioration of social ills, chooses the former of the options listed above. Moreover, the emphasis on retribution acts as a powerful distraction from clear thinking on what might have made criminals act the way they did–perhaps if ‘the world outside’ were improved, some of the causal chains leading to the commission of crime could be disrupted.

Note 1: The details of this shameful scandal and its gross violation of academic freedom  are still worth reading after all these years (especially because, as the Steven Salaita affair reminds us, academic freedom remains under assault.) Paul Edwards‘ ‘Appendix’ in Why I Am Not A Christian (Allen and Unwin, New York, 1957) contains the sordid and infuriating details. Edwards’ essay is in turn based on The Bertrand Russell Case (eds. Horace Kallen and John Dewey, Viking Press, 1941).

Mass Incarceration And The ‘Overfederalization’ Of Crime

America’s mass incarceration is the bastard child of many. Among them: racism, the War on Drugs (itself a racist business), the evisceration of the Constitution through ideological interpretive strategies, prosecutorial misconduct, police brutality, and so on. Yet other culprits may be found elsewhere, in other precincts of the legal and political infrastructure of the nation.

In ‘The Balance of Power Between The Federal Government and the States’ (in: Alan Brinkley, Nelson W. Polsby, Kathleen M. Sullivan eds., New Federalist Papers: Essays in Defense of the Constitution, WW. Norton, New York, 1997), Kathleen M. Sullivan writes:

[T]here may be reason for the courts to draw outer limits to federal power when the structural, political, and cultural safeguards of federalism break down and the federal government encroaches needlessly upon areas traditionally and sensibly regulated by the states. The worst example in our recent politics is the overfederalization of crime. The Constitution names only three crimes: counterfeiting coins or securities, piracy on the high seas, and treason. But Congress has created more than three thousand federal crimes under the power to regulate interstate commerce. There are many crimes that should be federal, such as bombing federal buildings or sending explosives through the mail. But should it also be a federal crime to grow marijuana at home or to hijack a car around the corner? Federal crimes have proliferated not because it is good crime policy but because it is good politics: as Chief Justice Rehnquist has observed, “the political combination of creating a federal offense and attaching a mandatory minimum sentence has become a veritable siren song for Congress,” loud enough to drown out any careful consideration of the comparative advantages of state and federal crime control.

Shifting crime control from the states to the federal government in purely local cases diverts the work of federal investigators, prosecutors, and judges from areas of greater federal need. It also fills federal prisons with non-violent and first-time offenders who occupy space that could better be used for violent, career criminals whose operations cross state lines. There is no reason why the new federal crimes may not be handled by the states, as they have been traditionally, unless they involve multistate enterprises or intrastate enterprises so vast as to overwhelm the resources of state authorities.

The federalization of a particular crime acts as a ‘promotion’ of sorts: it elevates the perceived undesirability and dangerousness of the crime; it thus clears the way for harsher sentencing. As Rehnquist’s remark above suggests, the legal system’s response to a particular crime may be viewed as qualitatively and quantitatively inferior till the time it federalizes it and adds a harsh minimum sentence; only such a combination will assuage the retributivist impulse that so seems to animate the punishment policies of our penal system. Moreover, the current state of affairs lends itself to a situation where a conservatively inclined Supreme Court could, under the guise of tilting this balance of power back to the states, strike down progressive legislation. As Martin Garbus noted in Courting Disaster: The Supreme Court and the Unmaking of American Law (Henry Holt, New York, 2002, pp. 128-130) the Supreme Court struck down, precisely as part of an ideological anti-federalist strategy, in United States vs. Lopez“the first United States Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution“, an act of Congress criminalizing possession of a handgun at school.

The Supreme Court’s Commerce clause rulings helped unite the nation, but as the history of mass incarceration shows, it has helped create a nation within a nation too, one locked up and discriminated against for life.

 

Angela Davis On Reparation, Reconciliation, And Prison Abolition

In Are Prisons Obsolete? (Seven Stories Press, New York, 2003, pp. 106) Angela Davis writes:

It is true that if we focus myopically on the existing system–and perhaps this is the problem that leads to the assumption that imprisonment is the only alternative to death–it is very hard to imagine a structurally similar system capable of handling such a vast population of lawbreakers. If, however, we shift our attention from the prison, perceived as an isolated institution, to the set of relationships that comprise the prison industrial complex, it may be easier to think about alternatives. In other words, a more complicated framework may yield more options than if we simply attempt to discover a single substitute for the prison system. The first step, then, would be to let go of the desire to discover one single alternative system of punishment that would occupy the same footprint as the prison system.

There are several, by now familiar, components to such reform then. Among others: decriminalizing some activities currently deemed illegal (ending the ‘War on Drugs’ would be an exceedingly good start); reviewing and revising sentencing guidelines (and investigating racial disparities in sentencing); increasing oversight and monitoring of penal facilities to diminish abuses like assault and rape within its confines; restoring the rehabilitative and reformatory capacities of prisons by facilitating the education of inmates; etc.

Yet others call for more radical reconceptualization in the direction of “a justice system based on reparation and reconciliation rather than retribution and vengeance.” In the reparative dimension Davis cites the work of the Dutch criminologist Herman Bianchi whose work on restorative justice includes suggestions that “crime needs to be defined in terms of tort” i.e., turning it into an offence against a person rather than the state, and thus replacing imprisonment with other impositions that would attempt to make good the harm done to the victim. In the dimension of reconciliation, Davis recounts the powerful and moving story of Amy Biehl, who was murdered by young South African men in Capetown in 1993. (Biehl’s killers apologized to her parents during the review of their amnesty petition to the Truth and Reconciliation Commission; later, her family reconciled with two of the killers–Easy Nofemela and Ntoboko Peni–and even employed them in administrative positions in their memorial Amy Biehl Foundation.)

Implicit in such discussion of reform are, of course, a set of questions pertaining to punishment, revisiting which is an essential step to this process: Why does a social group punish? How does it select those it punishes? What punishment is suitable and appropriate for a particular crime? It is in exploring the space of possible answers to these questions that a society’s most fundamental presumptions about punishment, morality, and justice will be made visible; and it is in exploring alternative answers to the ones currently given that more creative opportunities for reform will present themselves. These opportunities to explore and evaluate alternatives will only be possible, of course, if those who intend to reform heed Peter Biehl’s words, that “sometimes it pays to shut up and listen to what other people have to say, to ask: ‘Why do these terrible things happen? ‘ instead of simply reacting.”

Prisons And Boarding Schools: The Informer Phenomenon

I’ve made note here, on this blog, on some interesting similarities between prisons and boarding schools: the discipline, the regulation of time, the uniforms, the social dynamics. Yet another similarity may be found in the ubiquity of informers: moles, spies, double-agents, leakers, snitches–call them what you will–conduits for the passage for information to administrative and disciplinary authorities on inmate (student) activity.

In my boarding school, where discipline was enforced by schoolboys themselves–the so-called ‘prefects,’ drawn from the ranks of the graduating class, the ‘sixth-form‘–informers were feared and despised alike (as they always are.) Complaints and mutterings about heavy-handed punishment–perhaps via the dreaded punishment drills–all too often, and mysteriously enough, found their way to the ear of the prefects concerned, and reprisals and crackdowns against those who had dared question authority quickly followed. The identities of the informers remained artfully hidden: they never informed carelessly enough to allow their cover to be blown;  “there were only three of us present when we talked about X; you and I were punished, so the informer must be Y.” Instead, these informers only informed when they were sure they had enough obfuscatory cover. (Shades of crypto crackers not making it too obvious that a particular cipher had been cracked by not acting too expeditiously or efficiently on the revealed information.) On one occasion, a large group of students in a classroom made some bitter comments among themselves on how some prefects had been a little too heavy-handed in their dishing out of corporal punishment during punishment drills; a day later, two of the students in that group found themselves dragged out of a basketball game and forced to perform a particularly exacting drill supplemented with occasional slaps to their faces and the back of their heads. (The informer’s most valuable reward–over and above any material benefit–was to be free of the worst of these disciplinary crackdowns.)

My post today is prompted by the note on self-policing in response to pervasive surveillance that I posted over the weekend; the methods change, the effects are the same. For of course, all too soon, we, the inmates, suspected each other to varying degrees and the quality of our conversations and interactions suffered as a result; we were not sure what would be reckoned as subversive or offensive. Planning for illegal activities like sneaking off for a smoke was obviously problematic, but what about saying something rude about a prefect or a teacher? Better to be safe than sorry; better to zip it.

The informers’ cover was not perfect, of course, and sometimes, by dint of informal detective work, a pattern of sorts of emerge, and a suspect or two would be identified. Reprisals against them were brutal; they came at the end of the year, when all scores were to be settled. Sometimes these consisted of beatings on campus; sometimes these took place off-campus. If this sounds horrifying, it should be. But then, so was the system of penal discipline imposed on the students in the first place.