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)]


Academic Arguments, Sports, and Urban Policing as ‘War’

In the introduction to The Social Construction of What? Ian Hacking writes:

Labels such as ‘‘the culture wars,’’ ‘‘the science wars,’’ or ‘‘the Freud wars’’ are now widely used to refer to some of the disagreements that plague contemporary intellectual life. I will continue to employ those labels, from time to time, in this book, for my themes touch, in myriad ways, on those confrontations. But I would like to register a gentle protest. Metaphors influence the mind in many unnoticed ways. The willingness to describe fierce disagreement in terms of the metaphors of war makes the very existence of real wars seem more natural, more inevitable, more a part of the human condition. It also betrays us into an insensibility toward the very idea of war, so that we are less prone to be aware of how totally disgusting real wars really are….Wars! The science wars can be focused on social construction. One person argues that scientific results, even in fundamental physics, are social constructs. An opponent, angered, protests that the results are usually discoveries about our world that hold independently of society. People also talk of the culture wars, which often hinge on issues of race, gender, colonialism, or a shared canon of history and literature that children should master—and so on. These conflicts are serious. They invite heartfelt emotions. Nevertheless I doubt that the terms ‘‘culture wars,’’ ‘‘science wars’’ (and now, ‘‘Freud wars’’) would have caught on if they did not suggest gladiatorial sport. It is the bemused spectators who talk about the ‘‘wars.’’

Two quick responses. First, Hacking is correct to note that the invocation of ‘gladiatorial sport’ in the recounting of academic debate is an integral part of the rhetorical arsenal deployed to describe academic debate. This is presumably meant to indicate the extent of the disagreement extant between the parties in the debate, but over time it has come to characterize debate itself in too many disciplines. In philosophy, as I’ve already noted–much to the detriment of women philosophers–this has become the norm. An argument is an opportunity not to move toward discovery and edification but to destroy a putative opposing position. The conquest of one’s intellectual ‘opponent’ becomes our primary, normatively assessed responsibility.

Second, Hacking is also correct in indicting the usage of the language of ‘war’ to describe academic disagreement: it simultaneously trivializes war while dangerously lowering the standards of discourse in academic debate. In general, wherever the language of ‘war’ and ‘battle’ is thrown around freely, the standards of behavior in that domain decline.  Consider sport, where the all-too frequent reliance on military tropes results in the condoning of illegitimate play and questionable sportsmanship, and more generally, the attitude that games, like wars, must be won by any means necessary. Or consider urban policing, where the constant reference to ‘war zones’ results in a ‘shoot or be shot’ mentality that takes the lives of innocents each year. The trigger-happy policeman is already convinced he is a soldier on patrol, well behind enemy lines, surrounded by hostiles ready to take him out. The outcomes that result are grimly foretold.

Babies and Gender Construction

When I look at my daughter, my baby girl, I don’t detect her gender. I am aware of her sex, for it was announced to me, rather loudly and emphatically, by nurses and surgeons, when she was born, ‘It’s a girl!’ I am aware of her sex too, when I change her diapers. Other than that, I do not know if I’m dealing with a boy or a girl. At eleven weeks, it’s all baby all the time; no sexual difference manifests itself. Perhaps I’m not expert enough to know the difference between a boy’s wailing and a girls’ wailing, or perhaps there is some magic marker that I am not aware of. But I think I possess sufficient expertise in this domain; I am the child’s father after all. Why would anyone else know better than me? My daughter’s mother, my wife, agrees; for now, it could be just as well a boy; we don’t see the girl yet.

But there are times when we have seen my girl, accompanied by her gender. My mother-in-law, her grandmother, bought her a frilly white dress, sleeveless, complete with white fur stole. My wife dressed her up in it for an outing to a wedding. She was cooed and gushed over, and everyone told us how adorable she was. It was the first time I had seen her look so ‘feminine’; the clothes had clothed her in a gender. And then, just the other day, she wore a pink skirt, also a gift. Again she looked, suddenly, as never before, ‘like a girl.’ The clothes magically transformed her; immediately, the collected set of impressions associated with white and pink dresses, ‘pretty’ and ‘delicate’, forced themselves to the fore. We were looking, amazingly enough, not at a gender-neutral baby any more but at a creature with a very distinct gender. We had participated in an act of gender construction. (I had noticed inklings of this when her first pink gifts came rolling in after birth; before that, as we had asked the asked the ultrasound clinic to keep her sex a secret, her gifts had been gender neutral.)

I have been told for a long time that gender is a social construct. I have both read and taught feminist theory. (In Fall 2007, at Brooklyn College, I taught ‘Philosophy and Feminism’ using Ann Cudd and Robin Andreasen‘s anthology; I also assigned Ursula Le Guin‘s ‘Left Hand of Darkness‘).  But I don’t think I have ever experienced the truth of that theoretical claim quite as viscerally as I have in the past few weeks, by something quite as simple as my interactions with this gurgling, bawling, cooing creature, recognizably human for sure, and certainly of the female sex as far as her biological inheritance is concerned, but lacking any other mode of definition that would allow her to be slotted into our socially determined categories of ‘boy’, ‘girl’, ‘man’, or ‘woman’. Right now, she’s just a baby; she awaits definition, a process in which she will participate, and hopefully, leave her own distinct imprint.