HARVARD LEGAL THEORY FORUM

8 responses so far ↓

• Jonathan Gingerich // Feb 26th 2009 at 12:15 am

  I enjoyed reading your paper on “Positivism and Normative Inference: Two Key Legal Problems of Late Modernity.” As I read it, I had several thoughts and questions.

  1. “The problem with universal discourses such as ‘modernity’ and ‘progress’ isn’t that they motivate demagogues and blind masses (the usual poMo complaint). The problem is such claims are by definition indemonstrable.” There seems to be some tension between this claim and your comment in the previous paragraph that, “I am still willing to put Kennedy in the modernist camp.” How does your classification of Kennedy as “modern” (or, for that matter, Aristotle and Cicero as “classical”) avoid collapsing into the inherent indemonstrability of phenomenological periodizations?
  2. Throughout your paper, you make references to “science” and “scientificity,” commenting, for example, that Duncan Kennedy’s history of legal thought is not scientific. It would help me to wrap my head around some of these claims if you briefly and clearly stated what it means for a theory of law to be scientific.
  3. “The late modern Americans, aside from the occasional isolated now marginalized and thus insignificant neo-con aren’t even looking at Aristotle.” My sense, which certainly is not derived from an eagle-eyed view of legal theory, is that Aristotelian conceptions of justice, while by no means dominant in legal academia, are growing in importance and already are a force to be reckoned with. See, e.g., Martha C. Nussbaum, The Supreme Court, 2006 Term—Foreword: Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism, 121 HARV. L. REV. 4, 33–41 (2007) (discussing Aristotle as providing a political theory congenial to a “capabilities” approach to constitutional theory).
  4. As I understand your argument regarding positivism and natural law, it runs roughly as follows:
  When judges and law professors in the contemporary United States talk about natural law, they generally say that “law is made” by judges (or legislators, or bureaucrats, etc.). When they say this, they also suggest (at least implicitly) that any law that is made is not a necessary outgrowth of “reason” or “human nature.” With respect to many laws, these judges may be right. There is nothing about human nature that compels courts or legislatures to decide that jaywalking must be a crime that is subject to a five-dollar fine. Such decisions are purely discretionary (or purely political). On the other hand, some laws are the necessary outgrowth of a particular conception of reason or human nature. On almost any conception of human nature, certain acts will be crimes (e.g., premeditated, random killings with no discernible political motive committed by an individual who is not considered unable, because of some reason outside of her control, to reasonably control her actions). When judges deny that such laws are necessary, they are either talking nonsense or are relying on a very bizarre understanding of human nature. This is why “[f]ascism proved the normative folly of divorcing law and morality” (14). Fascism and Nazism made properly legal questions into political or discretionary questions. On this account, the Prussian judiciary’s loss of power in the 1930s went hand in hand with the collapse of morality in Germany.
  In some ways, this offers a powerful response to positivist critiques of natural law. For instance, this makes inroads against H.L.A. Hart’s sixth critique of “thick” accounts of natural law. On Hart’s view, thick natural lawyers “exclude from ‘law’ . . . morally offensive rules.” H.L.A. HART, THE CONCEPT OF LAW 209 (2d ed. 1994). If natural lawyers ever do make proclamations like “lex injusta non lex est,” it is just a way of saying that a particular claim that something is a law carries with it an incoherent (or, minimally, wrong) conception of human nature or rationality. As John Finnis points out, “the central tradition of natural law theorizing in which the ‘lex injusta non est lex’ doctrine is embedded has not chosen to use the slogans attributed to it by modern critics . . . . On the contrary, the tradition, even in its most blunt formulations, has affirmed that unjust LAWS are not law.” JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 364 (1980). The only way that a judge or legislature could say that murder was not a crime is by adhering to a bizarre conception of human nature.
  It is not clear to me, however, that this argument cuts against positivist claims more generally. Hart distinguishes between Natural Law as a theory that founds law in morality and the minimum conception of natural law, both of which positions stand in opposition to the positivist doctrine that “the law may have any content.” The more grandiose and more challengeable version of natural law, in Hart’s mind, refuses to recognize evil laws as valid for any purpose, seeing positive law as emanating from an objective Natural Law. HART 193. The minimum conception of natural law, on the other hand, accepts that there are certain basic truisms (but not necessary truths) about human nature that make it necessary for legal systems to have certain content to the extent that they succeed at advancing “the minimum purpose of survival that men have in associating with each other.” Id. As Hart sees it, survival is the one most fundamental aim of human life; he does not belief that there is an aim or telos antecedent to survival. Hart counts it simply as “a mere contingent fact which could be otherwise, that in general men do desire to live,” and by calling survival an end, he means only that humans desire it. Id. at 192. So, Hart’s problem with natural law might not be a problem with the argument that the dichotomy between positive law and natural law is false as much as it is with particular conceptions of human nature advanced by natural lawyers (and particularly by Catholic natural lawyers with long laundry lists of all of the components of human flourishing). It is possible that this attack on positivism can be further developed: perhaps by failing to incorporate a full-blown account of human nature into his description of law, Hart undermines the rhetorical efficacy of claims regarding the type of laws that thick conceptions of human nature suggest are necessary. The same may be true of contemporary U.S. jurists—by saying that judges “make,” rather than “discover,” law, they politically weaken natural lawyers claims. If laws are just “made” rather than “discovered,” it might be much harder to convince courts that there children have a right to receive a quality education (although many accounts of human nature, and perhaps most mainstream accounts of human nature, might suggest that such a legal provision is necessary).
  5. “The state, as I was saying, is a plurality which should be united and made into a community by education; and it is strange that the author of a system of education which he thinks will make the state virtuous, should expect to improve his citizens by regulations of this sort, and not by philosophy or by customs and laws, like those which prevail at Sparta and Crete respecting common meals, wherby the legislator has made property common” (11 n.15). I’m somewhat unclear on what regulations in particular “regulations of this sort” refers to. Is it regulations of education? Or regulations regarding the commonality of property? Or regulations providing for aristocratic governance?
  6. “For Aristotle, such would be a physical impossibility . . .” (13). I think this takes Aristole a bit farther than it is necessary to take him. Aristotle acknowledges the historical existence of individual family units and villages as (temporal) predecessors to city-states. ARISTOTLE, POLITICS 1252a24–1253a1 (C.D.C. Reeve trans., 1998). Further, Aristotle’s suggestion that any human who lives outside of a city-state is “either a beast or a god,” suggesting that it is not physically impossible to live outside of the city-state. Id. at 1253a30.
  7. Aristotle “was a sexist” (13). My reading of Aristotle’s account of human sociality is that Aristotle’s sexism doesn’t necessary implicate his account of whether humans are social or not, though I agree that this is a somewhat open question.
  8. “Consequently, the only plausible argument was that the accused were guilty of violating laws unwritten in the law books but inscribed on every human heart” (15). I think that a somewhat less ambitious account of international law could still provide a basis for such prosecutions. You quote the Sosa court as saying that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations . . .” (15 n.27). I think that the “customs and usages of civilized nations” might not be as universal as rules that are “inscribed on every human heart,” in that “customs and usages” sound much less universal (they’re what most people follow, not what everyone follows), and less epistemically problematic (they can be ascertained by studying what most people do most of the time).
  9. “Roughly simplified, positive law corresponds to social justice and natural law corresponds to justice in particular, i.e., individual transactions among physical persons” (17). How do you confront the epistemic problems associated with the claim that natural law provides answers to some legal questions but not others? Where is the line drawn between natural and positive law, or between traffic ordinances and prohibitions on premeditated murder? And, once we find the line, how does reasoning about the issues that fall on the natural law side of the line differ from reasoning about issues on the positive law side? It also seems to me that individual transactions among physical persons inevitably shades into social justice (rules about contracts can have important distributional effects, even leaving aside contracts with legally created persons).
  10. As I understand your argument regarding normative inference, it is roughly as follows:
  Hume said that when people claim that an “ought” statement follows from an “is” statement, they should explain why it follows. Many people, including Kelsen, have misinterpreted Hume, thinking that he argued that “ought” statements cannot be derived from “is” statements. In actuality, there are moral facts, and statements about these moral facts are no different from any other “is” statements.
  I am curious about the intersection between this argument and normative claims in the law. It seems that in most fields of law there is a significant difference (at least rhetorically) between political reasons for adopting a particular rule or standard and legal reasons that judges find persuasive in determining the outcome in particular cases. Is this difference in types of arguments associated with moral dualism? Or would it exist even if judges and lawyers and legislators and bureaucrats adopted moral factualism?

  Thank you very much for presenting your paper to the Harvard Legal Theory Forum.

• Jonathan // Feb 26th 2009 at 12:18 am

  And here are a few additional, broader question:

  • What is the relationship between positivism and natural law in contemporary American legal theory? Is there a live controversy about how judges should approach determinations of what law is? Or has everyone settled into a largely positivist account of legal decisions by courts, and agreed that we have to have a political debate about background principles that provide legislative justification for laws?
  • What role do natural law principles in contemporary American debates about what law should be? Could greater appeals to natural law move legislative debates away from economic discussions where there are often few inroads for normative arguments?
  • Does moral realism suggest different solutions to decisions about what laws are desirable than are reached by dualists? Are there political stakes to our position on the possibility of inferring normative facts from non-normative facts? Is the rhetorical force of a claim to the legitimacy of law affected by our choice of theories about metaethics?
  • Is there a necessary connection between moral dualism and believing that there is a sharp split in natural and positive law? This doesn’t seem at all obvious to me. At the very least, it seems likely that natural lawyers can be moral realists or moral dualists. What about positivists? Can somewhat like Hart really say anything at all about morality?
  • Duncan Kennedy’s story about the history of legal theory is very procrustean, as he acknowledges, and very focused on specifically legal history. Is this a problem for his theory? Does he get big parts of the story wrong out of an excessive concern with law professors and judges, rather than broader economic conditions? Or is his a self-contained story that supplements and enriches historical narratives about economics or social history?

  Again, thanks very much to Eric for his great presentation!

• Eric Engle // Mar 28th 2009 at 10:15 am

  You ask so many questions, several of which are thoughtful, and others of which lead to more questions, that I will try to responde one by one.

  >>1. “The problem with universal discourses such as ‘modernity’ and ‘progress’ isn’t that they motivate demagogues and blind masses (the usual poMo complaint). The problem is such claims are by definition indemonstrable.” There seems to be some tension between this claim and your comment in the previous paragraph that, “I am still willing to put Kennedy in the modernist camp.” How does your classification of Kennedy as “modern” (or, for that matter, Aristotle and Cicero as “classical”) avoid collapsing into the inherent indemonstrability of phenomenological periodizations?

  Yes, there IS tension; I was trying to indicate the problem of measuring, in materialist terms, concepts like “progress”: when dealing with billions of people and hundreds of years in some ways it will be clearly possible to say “that happened” and in other cases it will be murky.

  I don’t think it’s always impossible to make such judgements; just sometimes — due to complexity.

  Though you are welcome to point me to a url to explain why you think phenomenological periodizations inherently indemonstrable.

• Eric Engle // Mar 28th 2009 at 10:20 am

  “what it means for a theory of law to be scientific.”

  Since Bacon empirical demonstrability (reproducibility) is clearly one criteria of scientificity; Aristotle would hold such to be the case of practical knowledge but not of theoretical knowledge.

  Reproducibility and demonstrability are two key aspects of science because demonstrable repeatable claims are much more certain than indemonstrable ones.

  Really the best bet would be to go straight to Novum Organum; and then to Aristotle’s Posterior Analytics.

  If you get deeply enough into Aristotle you will understand the dialectical nature of synthetic (theoretical) knowledge, how theoretical claims are adduced (generally inductively) from empirical claims.

  Basically, the deductive-inductive method taken together allow one to bridge the supposed gaps between Bacon and Aristotle. Though modernity tends to ignor Aristotle far too much for anyone’s good (partly because Aristotle was racist, sexist, and homophobic).

• Anonymous // Apr 6th 2009 at 1:01 am

  Question 4 looks more like a statement than a question:
  My effort to answer it is this : I am developing a materialist theory of the complementary character of natural and positive law. Defensible versions of positivism exist for the very reason that some laws are positive – but others are not (which is the real lesson of Nuremberg).

• eric engle // Apr 6th 2009 at 1:26 am

  Question 4 seemed more like a statement than a question:
  1) There are defensible versions of positivism precisely because positive law and natural law play complementary roles (some laws are natural and thus universal, other laws are conventional and local)
  2) However there are defensible versions of natural law – Aristotle presents the most defensible version, in my opinion. I did get Duncan to look again to Aristotle as part of what he would consider contemporary law’s tendency to neo-formalism. Currently, there is lots of controversy about how to judge properly because of the politicization of the judicial function which politicization Kennedy thinks is inevitable and is a response to what he calls the “death of reason” critique. I criticize his d.o.r. critique, the stronger he makes the critique the more I criticize it. Legal reasoning isn’t indeterminate or capricious, in my opinion.

  5) Aristotle refers to Platos educational prescription from The Republic: communal living, no parenting, coed naked sport training. Really. Plato wanted to replace the family with the state.

  6) Aristotle obviously didn’t think men could be anti-social and unreasoning beasts – or God’s. I think he was using that as a trope. Aristotle wasn’t trying to force the development of homo superior, the next man, a new evolutionary stage (evolution didn’t exist). He thought man the most perfect of beasts. He is saying, basically, that men outside the state would no longer be men.

  7) Aristotle is correct when he argues that people are social by nature, but undercuts that due to his sexism.

  8) Genocide was no crime under positive (conventional) international law prior to the genocide convention. Really, the only way to get to the Nuremburg prosecutions in an international rule of law system is via natural law.

  9) Aristotle Book V Nicomachean ethics; there are FEW universally true laws but there are a few.

  10) I can’t answer questions about moral dualism well because I am not a moral dualist. Where people’s erroneous propositions lead them is their problem. You could justify anything with moral dualism, in my view, just as you could with moral nihilism.

• eric engle // Apr 6th 2009 at 1:26 am

  8 with a parenthesis makes an emoticon. spiffy.

• eric engle // Apr 6th 2009 at 1:37 am

  “Duncan Kennedy’s story about the history of legal theory is very procrustean, as he acknowledges, and very focused on specifically legal history. Is this a problem for his theory? Does he get big parts of the story wrong out of an excessive concern with law professors and judges, rather than broader economic conditions? Or is his a self-contained story that supplements and enriches historical narratives about economics or social history?”

  “Duncan Kennedy’s story about the history of legal theory is very procrustean, as he acknowledges, and very focused on specifically legal history. Is this a problem for his theory?”

  Yes.

  ” Does he get big parts of the story wrong”
  No.

  Though, I disagree with his account of what he calls CLT – I must read Morton Horwitz on that point.

  I do agree with the rest of his historical account, roughly; his views don’t have to be “procrustean” or phenomenological and I’ve said that to him.

  I don’t agree with his epistemology: laws are not indeterminate, or at least don’t have to be.

  Probably I will wind up helping him refine his theory to make it more accurate.

  “out of an excessive concern with law professors and judges, rather than broader economic conditions?”

  That’s basically my view, he pays very close attention to scholars and not enough to economic and military facts on the ground. Though together with Horwitz, who seemed to have been his mentor, that critique fades, because Horwitz seems very much concerned with facts and footnoting them.

  ” Or is his a self-contained story that supplements and enriches historical narratives about economics or social history?”

  His theory isn’t self contained but when juxtaposed with other better founded theories becomes potentially unstoppable.

  Basically, he regards things I take seriously as convenient fictions, and that fact makes it harder for me to take him seriously.

  This really is the critique of cls, that it didn’t get taken seriously due to making esoteric and outrageous claims. And the world’s poor and oppressed and exploited all deserve much better than that. Progressive jurists must make credible arguments that win both within the system and to change the system. In that sense, at least, Kennedy is being outpaced by MacKinnon.