Category Archives: Jurisprudence

Philosophy of Language and Legal Interpretation

May 29, 2017 Brian BixJurisprudence

Brian Bix

Law is pervasively interested in the proper understanding and application of texts: contracts, wills, trusts, agency regulations, statutes, constitutional provisions, etc.  Legal interpretation is obviously central to legal practice, and it is not surprising that legal scholars would come to look to literary interpretation and philosophy of language for insight. The discussion of literary interpretation, and what lawyers, legal scholars, and judges might learn from it, has been one of the themes of the Law and Literature movement. The recourse to philosophy of language has been slower and less well publicized; however, there is now a growing literature applying philosophy of language to problems in law (e.g., Alessandro Capone & Francesca Poggi (eds.), Pragmatics and Law (Springer, 2016); Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law (Oxford, 2011)).

Brian Slocum is one of the most important scholars working at the intersection of legal interpretation and philosophy of language, as exemplified by his recent book, Ordinary Meaning (University of Chicago, 2015). In that book, Slocum contrasted one of judges’ favorite touchstones when interpreting documents, “ordinary meaning,” with the idea of “communicative meaning.” In the present article, Pragmatics and Legal Texts, Slocum offers a parallel contrast: between “literal meaning” and “communicative meaning.” To understand the “literal meaning” of a text or statute, one need only understand the meanings of each constituent term and how they fit together grammatically and logically to express a proposition. This process is meant to be independent of any considerations of the context of utterance. The article defines “communicative meaning” differently, as “what an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context.” (P. 2, footnote omitted.) This meaning can differ from the literal meaning because communication is a cooperative activity, which presupposes several further norms that can affect the communicative meaning of a statute or text in the context of utterance. Continue reading "Philosophy of Language and Legal Interpretation"

Interauthority Relationships

Apr 28, 2017 Michael GreenJurisprudence

Michael Green

For too long the focus in philosophy of law has been the national legal system. As some have already observed, this ignores public international law. But it also ignores private international law, or (as Americans would call it) the conflict of laws. Private international law is less about creating laws and judgments that bind nations than it is about coordinating nations’ existing laws and judgments. Philosophers of law also tend to ignore similar coordination within a national legal order. Not much is said about federalism, subsidiarity, and administrative law.

The focus on the unitary national legal system extends to how philosophers of law use the concept of authority. As Joseph Raz has argued, an authority provides a service: those subject to the authority are better able to comply with their reasons for action by doing what the authority says than by considering the reasons directly. For example, a doctor will be an authority for me if I am better able to do the right thing medically by following the doctor’s orders than by acting on my own reasoning about medical matters. Simply because lawmakers are considered to be authorities does not mean they are. But because lawmakers claim authority, even if they may not have it, authority is considered essential to understanding the law. Because of the focus on the unitary national legal order, however, philosophers have concentrated on the relationship between a single authority and its subjects—how the authority mediates between its subjects and their reasons for action. Continue reading "Interauthority Relationships"

Law and Virtue

Mar 30, 2017 Sean CoyleJurisprudence

Sean Coyle

In this interesting and clearly argued article, Kimberley Brownlee investigates the extent to which the law can serve as a model of virtue. She rightly points out that many ethicists understand law deontologically, as a set of principles that determine rights and duties: in other words, that for law to embody a morality, this morality must be essentially law-like. The article observes that the law’s various concerns cannot be entirely reduced to deontology (P. 5), but there is in any case room for dissatisfaction with the idea that deontology and “virtue ethics” are opposing conceptions of morality. Aquinas, for example, devotes the entire secunda-secundae of the Summa Theologiae to a discussion of the virtues, but does not hesitate to identify duties to be performed (including the human being’s duties to God).¹

One interesting observation at the outset of the article is that the law “tends toward injustice.” This is a very arresting comment, and it is a shame that there is no discussion of it. For one thing, it runs contrary to the much-repeated idea of Lon Fuller that the law “works itself pure,” that is, tends toward justice over time, or to the classical common law philosophies of writers such as Hale or Coke, which regarded the law as the accumulation of reason. One could also point to the natural law content of positive law: the suppression and punishment of criminality, maintenance of the inner tranquility of the state, the restraint of fraud, sexual crimes and civil wrongs, regulation of contracts and so forth. In all such cases the tendency of the law seems to be toward justice rather than its contrary. Continue reading "Law and Virtue"

What Law Do Legal Theorists Need to Know?

Mar 17, 2017 Andrew HalpinJurisprudence

Andrew Halpin

A question seldom asked is what actual legal knowledge legal theorists require in order to theorize about law, or, indeed, what areas of law they should visit in order to confirm their theories. Without wishing to suggest there might be a mandatory list of legal subjects, or a set of legal treatises that amount to required reading, my present purpose is to draw attention to an area of law and its treatment in a recent book by M. Sornarajah that would not obviously fall within the purview of legal theorists but which offers them particularly stimulating material.

The area of law is international law on foreign investment, an area Sornarajah is well positioned to write about, being commonly regarded as one of the founding expositors of a specialist sub-discipline of international law,¹ whose rapid development in recent decades is a significant manifestation of the fragmentation of international law. This area of law, whose development has centred on the place and role allowed to arbitration on international investment treaties, accordingly provides an extraordinarily accessible set of data regarding the creation, recognition, and development of law. Continue reading "What Law Do Legal Theorists Need to Know?"

Property and the Rule of Law

Mar 3, 2017 Robin WestJurisprudence

Robin West

Paul Gowder’s article Equal Law in an Unequal World is an exceptionally fine piece of scholarship, and a terrific addition to the growing philosophical and jurisprudential literature on the Rule of Law. It sets out to accomplish several tasks—and largely succeeds. The first and major goal of the piece is to introduce a novel conception of the Rule of Law that is grounded in the widely accepted norm that law must be general. This is a familiar understanding of the meaning of the “Rule of Law,” but Gowder gives it distinctively unfamiliar—but ultimately quite compelling—content. Any law, Gowder argues, drawing on an emergent moral-philosophical literature elucidating related concepts, to be “general” and therefore compatible with the Rule of Law, must be backed by public reasons that can be rationally understood by all citizens, but most important, by all citizens it directly targets. Those reasons, in turn, must be consistent with each such citizen’s basic equal worth and equality (among other requirements as well: the law must also be justified by reasons that are aimed at a sound public policy, and third, by reasons that reflect loosely the community’s self-conception and values). A law justified by reasons that can be understood by the law’s presumed targets only by first accepting the claim that they are inferior to others—such as a law requiring black citizens to sit in the rear of buses, or a vagrancy law forbidding both rich and poor from sleeping under bridges (etc.) in the face of widespread homelessness, or theft laws that forbid the theft of food, given the existence of severe poverty—therefore, violate the Rule of Law. These laws can only be understood by those whom they target as resting on or justified by reasons that in turn presuppose affective commitments of the lawgiver and of the community to the inferiority, or unacceptability, or indeed the contemptibility of black people, or the homeless, or the poor. Particularly for those who have no choice but to commit the prohibited act—such as homeless people who must after all sleep somewhere, or poor people who are hungry and must eat to survive—the laws prohibiting these acts cannot be understood in any way other than as resting on a claim that their very existence is offensive, or at best that their status is lower. This claim is in turn inconsistent with the generality required by the Rule of Law, when that generality is properly understood as requiring not any formal or linguistic property, but rather, a commitment to the general equal worth of all citizens. Therefore, Jim Crow laws, and literacy requirements for voting, but also quite ordinary laws prohibiting theft or vagrancy, are violations of the Rule of Law because in each case, they are premised on reasons that in turn rest on affective attitudes that presuppose the inferiority of the groups they target—and, thus, their lack of “generality.”

This is, Gowder shows, a far more ambitious and robust understanding of the “generality” required by the Rule of Law than the “formal” interpretation one more commonly finds at the heart of dominant interpretations of the Rule of Law and the Equal Protection Clause both—interpretations that typically require (at least in the legal literature) only that “likes be treated alike,” with no substantive reference to either substantive equality, or the equality of citizens. An interpretation of the Rule of Law that requires the latter, Gowder argues, rather than the former, is both more consistent with the history of the ideal itself (drawn from English legal history) and more consistent with the politically and morally ambitious goal of a substantively equal and fair society—a goal that is least arguably at the heart of this country’s reconstruction amendments, as well as our history of progressive politics. Continue reading "Property and the Rule of Law"

A Revival of Historic Jurisprudence?

Feb 2, 2017 Brian TamanahaJurisprudence

Brian Tamanaha

Of late there has been a notable burst of attention to the interaction between history and legal theory generally, and historical jurisprudence specifically. This includes a symposium in the Virginia Law Review last year on Jurisprudence and (Its) History, and a forthcoming book, Law in Theory and Jurisprudence, both with contributions from prominent scholars. What makes this noteworthy is that decades ago historical jurisprudence itself was consigned to the dustbins of history. As Brian Bix declares in his leading Jurisprudence text, “historical jurisprudence has largely disappeared.”

Historical jurisprudence emerged in the nineteenth century in the influential writings of Friedrich von Savigny and Henry Maine. It revolved around the insight that law evolves over time in connection with surrounding social, cultural, economic, political, and technological influences. Law at any moment in any place is the cumulative product of the history of its society (including interaction with external influences).¹ At the turn of the twentieth century, historical jurisprudence and legal positivism were the two main rival branches of jurisprudence, with natural law theory a distant third. Writing in 1906, prominent American jurist Melville Bigelow observed, “Two distinct schools have in succession held the field, more or less, of legal education in English and American law, the analytical of Bentham and Austin and the historical school.” Soon after Bigelow uttered these words, however, historical jurisprudence seemingly expired, not to be heard from again—until now. Dan Priel’s Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence and Markus Dubber’s New Historical Jurisprudence: Legal History as Critical Analysis of Law explicitly advocate a revival of historical jurisprudence. Continue reading "A Revival of Historic Jurisprudence?"

The Zeal of Our Age

Jan 3, 2017 W.A. EdmundsonJurisprudence

W.A. Edmundson

Privatization is a phenomenon that legal theorists and legal philosophers have begun to notice and to stake out positions on, for and against. Privatization is defined with reference to the (too?) familiar distinction between public and private actors. Privatization happens when a good, service, or a function that is typically supplied by state government, through the efforts of its officials and personnel, comes to be provided by private actors, perhaps still at state expense. In a pair of recent articles, Avihay Dorfman and Alon Harel have singled out private prisons and mercenary armies as paradigm examples of privatized public goods. Dorfman and Harel lament the fact that both advocates and opponents of privatization conceive the normative issue in purely “instrumentalist” terms. Which type of actor, public or private, can provide a given good or service more efficiently? Discussions therefore deal in contingencies, and at retail level. Dorfman and Harel argue in their 2013 article that this sort of approach fails to engage the intuitive sense that there is something intrinsically worrisome about privatization that pervades it wholesale. It isn’t centrally a question whether private prisons, say, are more or less likely to do the job efficiently (without compromising prisoner rights). It is rather a conceptual question whether there is a category of goods—“intrinsically public goods”—that can only be provided by the state, directly, by its officials; and, for instance, whether criminal punishment is among them. The answer to conceptual question, and the answer’s retail application might allow the possibility of privatization: in which case, but only then, they say, it is proper to go on to the contingent question about the relative efficiency of public and of private delivery. Continue reading "The Zeal of Our Age"

Brink on Dworkin’s Originalism

Nov 18, 2016 Connie RosatiJurisprudence

Connie Rosati

What was Ronald Dworkin’s relationship to constitutional originalism? One might think that Dworkin rejected originalism. After all, he famously advocated a normative approach to constitutional interpretation—indeed, a “moral reading” of the Constitution—an approach seemingly at odds with the historical approach favored by originalists. Moreover, he was explicitly critical of appeals to the intentions of the framers; in particular, he was critical of appeals to the framers’ expected applications of constitutional provisions. The latter criticism figured centrally in his commentary on Justice Antonin Scalia’s Tanner Lectures, A Matter of Interpretation. But in Originalism and Constructive Interpretation, David Brink offers a novel interpretation of Dworkin, arguing that, in fact, Dworkin subscribed to a version of originalism. This originalism differs markedly, however, from Scalia’s form of originalism, as well as from other contemporary versions of originalism. For what Dworkin advocated was an originalism of principle.

Brink’s defense of his interpretation of Dworkin proceeds in roughly three stages. The first stage defends a view of the semantics of legal norms, claiming that Dworkin (who defended the determinacy of law) would need something like this view in order to respond successfully to H.L.A. Hart’s argument for legal indeterminacy in hard cases. Hart argued that legal rules are formulated in general terms, that general terms are “open textured” (with a core determinate meaning, and an indeterminate periphery), and that for this reason, hard cases are legally indeterminate: they must be decided by an exercise of judicial discretion. As Brink depicts Hart’s semantic assumptions, Hart assumes that the meaning of language in a legal norm is determinate as long as the meaning and extension of its terms is uncontroversial. Where there is disagreement about criteria for the application of a term or about its extension, the term’s meaning is indeterminate. Continue reading "Brink on Dworkin’s Originalism"

What’s “Private” about the Rule of Law?

Oct 20, 2016 Lisa AustinJurisprudence

Lisa Austin

In their new paper, Is Rule of Law an Equilibrium Without Private Ordering?, Gillian Hadfield and Barry Weingast make a provocative claim about the rule of law: that private ordering is what produces and sustains it, not the institutions of government. This is an important contribution to rule of law debates, which are so heavily focused on public institutions and public law while leaving the role of private ordering and private law undertheorized. But see Private Law and The Rule of Law (Lisa M. Austin & Dennis Klimchuk eds.).

Hadfield and Weingast are social scientists, not legal philosophers. However, their work engages with many different strands of theoretical literature on the rule of law, including analytic jurisprudence, and generates interesting conclusions for theorists and not just social scientists. The heart of their argument is the claim that “[m]ost regimes with fully centralized enforcement do not predictably achieve rule of law as a consequence of the structure of the regime itself.” If the rule of law is achieved, it is not because of institutions but because of “the peculiar, historical and contingent facts of individual identity or the balance of power.” (P. 25.) In other words, if we think that government is “a single body with the power to both make and enforce the law” then we should not expect the rule of law to emerge. (P. 27.) What is needed for the rule of law to reliably emerge, they argue, “is an essential role for private, decentralized, enforcement of law.” (P. 27.) Continue reading "What’s “Private” about the Rule of Law?"

Whistling for the Dog in Affirmative Action

Sep 21, 2016 Daria RoithmayrJurisprudence

Daria Roithmayr

The link between race and class inequality is a hot topic. The top two anti-establishment movements of the year are Black Lives Matter and Bernie Democrats, and the relationship between them is complicated. In addition, Donald Trump has built a campaign appealing to white middle- and working-class voters by blowing the racism dog whistle. Figuring out why those voters continue to support Trump despite (or because of) his racism is the question of the hour on my Facebook feed.

Which is why I was excited to see Khiara Bridges’ latest paper on class-based affirmative action (from here on, I’ll call it “class-based AA”) pop up in my inbox. Far from the heat of the election, Bridges has written a wonderful article that explores the race-class divide among supporters of affirmative action. In this paper, Bridges argues that class-based AA enjoys widespread bipartisan support because its beneficiaries are white. More specifically, she argues that continuing support for class-based AA depends on differentiating between poor whites as people who deserve to benefit from class-based AA and undeserving poor people of color, who should not. Indeed, she concludes, support for class-based AA might well dry up if people of color were to become class-based AA’s primary beneficiaries. Continue reading "Whistling for the Dog in Affirmative Action"