Michael Green

In his rich and carefully argued book, Rights and Right-Holding: A Philosophical Investigation, Matthew Kramer seeks to articulate the essence of any entitlement (whether legal or moral) that can be classified as a right and the essence of an entity’s holding that right (P. 5). He does so both concerning rights in the capacious sense — which includes all four entitlements identified by Wesley Newcomb Hohfeld (claim-rights, liberties, powers, and immunities)¹ — and concerning rights in the narrower sense of claim-rights only.

The book is a (qualified) defense of the fundamentals of the Hohfeldian analysis of rights — in particular, what Kramer calls the correlativity axiom, under which each duty is correlated with at least one claim-right with the same content (and every claim-right is correlated with at least one duty with the same content). And it defends an interest theory of the holding of a claim-right against the so-called will theory. Under the will theory, A holds a claim-right if and only if A has the power to control the existence and enforcement of the correlative duty (through waiver, demand, and the like).

I have elsewhere criticized the book’s discussion of liberties (and their correlative, no-rights).² My goal here is to praise the bulk of the book — and particularly Kramer’s non-justificatory approach to claim-rights and their correlative duties. An example of a justificatory approach is Raz’s interest theory of rights. Under this theory, to say that A has a claim-right is to say that A has an interest that is a ground for holding another to be subject to a duty.³ For example, you have a moral right to privacy if your interest in privacy justifies my moral duty not to open your mail. Under Raz’s theory, rights are dynamic in the sense that they justify more particular duties. The justified duty is not the right’s correlate, for it has more particular content than the right does.

An essential part of Hohfeld’s project was distinguishing what necessarily follows from a legal right’s existence from conclusions that might be justified from its existence. The cardinal Hohfeldian sin is to misconclude from A’s legal liberty-right vis-à-vis B to φ that A necessarily has a legal claim-right against B to non-interference in A’s φ-ing. Sometimes the claim-right is justified, and sometimes it isn’t. No claim-right follows as a matter of deontic necessity. In this sense, Hohfeld offered a non-justificatory theory of legal rights.

Kramer carries on the same tradition. Although he is skeptical about Raz’s justificatory theory, he freely concedes that Raz’s theory is compatible with his own (P. 129). Your Razian right to privacy would be correlated with non-specific duties on me to respect that privacy — duties that have the same non-specific content as your right. And when one concludes that my particular duty not to open your mail is justified, it necessarily follows that you have a claim-right with the same content — a claim-right that I not open your mail (Pp. 124-27).

Much of Kramer’s book spells out how claim-right correlates for duties or duty correlates for claim-rights can be found, both in morality and law. Using analytical maneuvers well beyond those Hohfeld envisioned, Kramer identifies deontic positions that have previously been ignored. This makes his project, in a curious sense, the converse of Hohfeld’s. Whereas Hohfeld sought to keep justificatory views from leading us to misconclude that certain claim-rights and duties necessarily exist, Kramer seeks to keep justificatory views from leading us to misconclude that certain claim-rights and duties do not necessarily exist.

The most significant part of Kramer’s book is its defense of his interest theory of the holding of a claim-right:

Individually necessary and jointly sufficient for the holding of a claim-right by X are (1) the fact that the duty correlative to the claim-right deontically and inherently protects some aspect of X’s situation that on balance is typically beneficial for a being like X, and (2) the fact that X is a member of the class of potential holders of claim-rights. (P. 179.)

When seen from a justificatory perspective, many elements of this account look like non sequiturs. Consider the typically requirement in section (1). How can the fact that B’s duty protects some aspect of A’s situation that is typically beneficial for a being like A (but not actually beneficial to A) explain A’s claim-right vis-à-vis B? It can’t if the goal is justification. Or consider the beneficial requirement, also in section (1). According to this requirement, officials can hold a claim-right against the public that the public not interfere in the officials’ carrying out their responsibilities only if the officials benefit from the public’s correlative duties of non-interference. The reason they benefit, Kramer argues, is that the public’s duties allow the officials to better execute their chosen job (P. 228). But how can that incidental benefit explain why the officials hold the claim-right when the claim-right’s justification is the benefit to the public, not the benefit to the officials? Again, if the goal is justification, it can’t. These problems evaporate, however, when Kramer’s theory is understood as non-justificatory.

Similar (apparent) problems arise concerning Kramer’s theory of what it takes to be a possible holder of a claim-right, in section (2) of the formulation of his interest theory above. For the record, I am skeptical about the details of Kramer’s theory. But some aspects of his theory only appear problematic because one has adopted a justificatory perspective. The fundamental criterion for inclusion in the class of possible holders of a claim-right is being a creature with ultimate value (P. 312), which is the case if and only if one has the capacity for self-reflection and the furtherance of one’s interests is intrinsically valuable (P. 316). But membership in the class is not a matter of simply identifying entities that satisfy the fundamental criterion (which would exclude, for example, fetuses and the comatose). Rather, the goal is the identification of a community with ethical ties (P. 330).

Due to considerations that space restrictions keep me from elaborating here, the result (which Kramer himself acknowledges) is speciesism. Kramer’s theory is speciesist in two senses. First, all members of the human species are admitted into the class of possible holders of a claim-right, despite the fact that some members (such as anencephalic infants) will never have the capacity for self-reflection during their life (P. 326). Second, even though Kramer includes some non-human animals within the relevant community, he excludes vermin (such as cockroaches and tsetse flies) (P. 345).

Seen from a justificatory perspective, these conclusions look suspect, for they seem to generate duties protecting anencephalic infants that are equivalent to those protecting competent human adults and to reject duties protecting vermin. But because Kramer’s theory is non-justificatory, that isn’t the case. There is nothing about Kramer’s theory that excludes the possibility that we have more stringent duties to protect vermin than we have to protect anencephalic infants. The point is simply that the claim-rights correlated with the duties that protect vermin cannot be held by the vermin, whereas any claim-rights correlated with the duties that protect anencephalic infants can be held by the anencephalic infants.

Because Kramer’s theories are divorced from justificatory matters, the rights and right-holdings they identify seem curiously epiphenomenal. They accompany our justificatory enterprises but perform no work in them. Nevertheless, Kramer’s theories have succeeded in capturing an important set of everyday patterns of usage of the term right (and associated terms). Of course, the fact that his theories track such patterns is not a sufficient reason to accept them. They must articulate meaningful concepts of a right and of an entity holding a right. But I think Kramer’s theories do. They are the concepts, like Hohfeld’s, that are employed after justificatory work has been completed. And, like Hohfeld, Kramer has shown that sensitivity to these concepts is essential to keeping justificatory concerns from interfering with our deontic reasoning about the rights and right-holdings that are justified.

The post Non-Justificatory Theories of Rights appeared first on Jurisprudence.

Thomas Bustamante

Bentham’s account of political authority is often deeply misunderstood. Legal theorists too easily buy Hart’s critique of imperativist jurisprudence, as presented in The Concept of Law, without bothering to check what Bentham said about language, perception, fictitious entities, analysis, paraphrasis, inference, judgment, universals, norm expression per adoptionem, the logic of imperatives, or the very notion of a “habit” of obedience. Nonetheless, in recent years, we have seen more careful reconstructions of Bentham’s work. In one of these works, Postema highlighted the connection between Bentham’s epistemology and the expressivist theory of language on the one hand and the principle of publicity and the rule of law on the other.¹ Given Bentham’s departure from the Cartesian representationalism that is still found in several accounts of meaning and reference, I have argued that “Postema interprets Bentham … as a linguistic pragmatist avant la lettre.”² But anticipating a substantial part of the most sophisticated forms of linguistic pragmatism is not the only remarkable achievement of Bentham’s philosophy of law and politics. The notions of command and political authority, for Bentham, cannot be understood apart from the practice of criticizing the acts of those in power and keeping the code of laws of a political community under a “perpetual commentary of reasons.”³ The legitimacy of a legal system rests on the existence of accountability mechanisms, such as the Public Opinion Tribunal (POT) and certain institutional structures for the appropriate interpretation and criticism of law – not only through court procedures and governmental acts, but fundamentally through the judgments of ordinary people. According to Bentham, “the catechism of reasons is worthless, if it cannot be made the catechism of the people.”⁴

Crucial for this public critical scrutiny of the law is Bentham’s notion of laws in principem – the laws that apply to the sovereigns, or those in power. Xiaobo Zhai’s recent essay, Bentham on Laws in Principem, Judicial Review, and the Public Opinion Tribunal, shows that the idea of laws in principem is not only immune to Hart’s objection that imperativist theories of law are unable to make sense of power-conferring rules and laws imposing official duties, but also gives form and determinate content to a republican ideal that is usually overlooked.

Zhai argues that one should not confuse the notion of laws in principem with the idea of “limited government” as Hart understands it. The nature of a law in Bentham’s jurisprudence is determined in accordance with two elements: first, “a law has a sovereign for its source”, and second, “it expresses a will regarding the conduct of a person or persons” (P. 430). The first element is what gives “authenticity” to a given law (P. 431). Like the laws that apply to the people in general – the so-called laws in populum – laws in principem must emanate from, or be adopted by, a sovereign to be valid (P. 431). In the case of rules deriving from international law, for instance, it is fundamental to track the attitudes of the sovereigns who participate in the process of instituting these norms, because treaties, conventions, or other sorts of norms belonging to international law ultimately stem from the “act of entering into agreements” about these norms. It is this kind of act, which is a form of expressing a sovereign’s will, that can “give authenticity to otherwise merely moral norms, and transform them into laws in principem” (P. 431).

Hart’s reading of Bentham misses this important point. “In Hart’s view, Bentham thinks that laws in principem ‘are simply the correlative of a limited habit and disposition to obedience’” (P. 436).⁵ Zhai convincingly argues, however, that Hart’s reconstruction of Bentham’s account of leges in principem is defective. These laws should not be interpreted as a synonym for “limited sovereignty”, in the sense of a law-making power overseen by courts. It is wrong to suppose, as Hart does, that “the legal status of the people’s obedience depends upon the attitudes of the courts” that determine the features of a legally limited form of sovereignty (P. 437). On Bentham’s account, if a legal system endorses an institutional structure in which courts have the last word on certain matters, the right way to explain this phenomenon is as a form of shared sovereignty in which two different bodies exercise some law-making powers but neither of them is supreme; rather, “they together form a conjunctive sovereignty” (P. 435). The status and efficacy of laws in principem, therefore, have little to do with the activity of the courts.

While this point was recognized by Gerald Postema in Bentham and the Common Law Tradition (P. 437), Zhai argues that Postema wrongly assumes that “laws in principem are correlative to the people’s disposition to limited obedience”, thereby committing to a “conventionalist” or “interactionalist” account of the people’s attitudes toward the law (Pp. 437–38). In contrast to that view, Zhai explains the validity and the efficacy of laws in principem in different ways. While the former is explained by the satisfaction of the two elements mentioned earlier (the element of authenticity and the element of willful expression or endorsement by a sovereign), the latter makes sense by a different disposition of the people, namely the disposition to criticize the government for its failures to comply with them (Pp. 444–47).

The key to understanding laws in principem lies in Bentham’s notion of the POT. A sovereign power limited by laws in principem is, for Bentham, “a power under obligations; otherwise, it would be a ‘power without obligation’, which for Bentham is ‘the very definition of despotism’” (Pp. 431–32).⁶ While the efficacy of laws in principem “cannot stem from legal sanction in the same way as laws in populum” (P. 432), it is still the case that they work as an “external force” imposing obligations upon the sovereign. The POT – “composed of all people across the whole world who happen to be interested in and capable of forming an opinion about the law in principem in question” (P. 433) – is the most efficacious forum for rendering a political sovereign accountable under the law. According to Zhai, these laws “impose duties upon sovereigns. They are valid laws because they receive determination from sovereigns; and they are efficacious because they are backed by the POT” (P. 433).

A sovereign that disregards laws in principem, in Bentham’s political writings, “can and will be punished by the popular sanction imposed by the POT, which is ‘the only force which is not included in the force of the government’” (P. 444). The POT is the only actor capable of imposing constraints on a government “operating in a sinister direction,” providing a sort of “impediment to its course” (P. 444). In Bentham’s utilitarian account of law, this is neither a purely moral demand nor a weak or insignificant form of social pressure on the government, as Zhai explains in an insightful paragraph:

According to Bentham, in a society possessing laws in principem, where official decisions are made public, political communications are free, and citizens and officials are public-spirited, laws in principem can contribute and shape people’s expectations about the acts of the sovereign, and thereby generate the popular sanction against the sovereign in the event of their being violated. In this way, the sovereign is effectively limited by laws in principem. “On what did the maintenance of the standard of constitutional law, as Bentham saw it, depend?” Long answers, “[o]n the strength and steadiness of the habit of censure on the part of the populace and on the sense of moral responsibility (or “shame”, as Bentham put it) of the legislator” (Pp. 444-45).⁷

These are central aspects of the principles of legality and accountability, which lie at the heart of the notion of the rule of law as interpreted in the most developed and sophisticated literature on that principle.⁸ This crucial reflexive or critical aspect of the value of the rule of law depends not only on institutional settlement or expert assessment, but more fundamentally on the legal subject’s responsibilities toward the law and toward their own communities and co-citizens. A habit of obedience to laws, in Bentham, was never understood in the dehydrated and caricatured way that Hart described. As Postema wrote in an analysis of the POT, “law exists”, for Bentham, “just in virtue of the ‘habit of obedience’ of subjects, but this ‘habit’ is not a thoughtless, rote, or strictly singular responsiveness to commands, but rather a coordinated collective response to the efforts of those in power”.⁹ For the law to rule, one needs more than an active and critically reflective attitude from officials and courts. Crucially, a similar recognitive attitude is required from citizens with regard not only to what Hart calls the “rule of recognition” but also to the rules that impose obligations upon the government.

Unlike Hart, Bentham’s jurisprudence does not allow for a passive attitude of obedience on the part of citizens, but presupposes their capacity to assess, appraise, and demand accountability on the basis of law. Rather than a “purely descriptive” legal theory, Bentham’s jurisprudence was intimately connected to his political theory and expressed a sophisticated account of legal judgment and the role of law in practical reason, both for citizens and for professionals and officials in their dealings with the law. In contrast to Hart, Bentham offers a more profound and critical grasp of the critical attitudes of ordinary citizens toward the law. Zhai’s analysis of laws imposing duties on sovereigns, which is a central aspect of Bentham’s jurisprudence, brings this dimension to the fore, offering an insightful and illuminating rendering of Bentham’s thought. According to Bentham, it is everyone’s duty to criticize the government when it fails to fulfill its promises and abide by its laws. This is more than Lon Fuller’s demand of congruence between official behavior and the law,¹⁰ because it makes sense of our power and responsibility to hold the government accountable for the laws of the political community over which it claims authority. Jurisprudence could use more works with the historical and analytical rigor that Zhai demonstrates in his analysis of Bentham’s thought.

The post Bentham on the Citizen’s Duty to Hold Political Authorities Accountable appeared first on Jurisprudence.

Alma Diamond

In early twentieth-century South Africa, the Gordonia School Board refused admission to two children on the grounds that they were not of “European parentage.”¹ In determining the validity and meaning of the relevant empowering legislation, Chief Justice Lord De Villiers invoked “public history”: the first “civilized” legislators in South Africa regarded its indigenous peoples as “an inferior race” whom they were “entitled to rule over.” The legal order De Villiers was reasoning within presupposed that European legislators had the legal right to rule over all inhabitants of South Africa,² and the society of which he was a part continued to accept the soundness of that proposition. In his personal capacity, he might have disagreed. But, qua judge, he could either accept that norm for purposes of legal reasoning or abandon legal reasoning altogether. And if South African society came to disagree with that foundational norm, it would face the same choice: accept the norm while reasoning within the legal order or reject the norm along with the legal order itself.³

That, at least, is the standard view: a legal order’s highest norm might be changed by social and political processes, whether through outright revolution or via a series of “pious fictions.”⁴ But there can be no legal authorization for changing the highest norm of a legal order. To revise a legal order’s highest norm is to abandon it in favor of a new one. As Stephen Sachs has written, adhering to our current law means rejecting unauthorized changes to it.⁵ Manish Oza invites us to reconsider this standard view in his recent Article, Can We Legally Revise the Highest Legal Rule?.

Oza targets a conceptual puzzle: if legally valid change must be authorized by a higher legal norm, every legal order must contain a highest legal norm that cannot itself validly be changed (P. 273).⁶ We could try to dissolve this puzzle in several ways, but Oza addresses each attempt convincingly. First, we would avoid the puzzle if law emanates from an extra-legal sovereign lawmaker. If so, all laws can change at their say-so. Oza sets this view aside (P. 271), with good reason. Hart’s critique of the command theory of law is convincing on this front: lawmaking authority must be understood as a consequence of law, not a precondition for it. Second, we might argue that the highest legal norm provides for its own amendment. But this either implies that, once amended, the norm authorizing that amendment no longer exists, or that there was an even higher norm governing the validity of such amendments—thereby reproducing the puzzle at a different level.

Third, we might deny that there is a highest legal norm. Two routes are available. One is to posit an infinite series of ever-higher legal norms. The other is to argue that a legal order has a non-hierarchical “circular” structure in which no norms are immune from revision. Oza argues that we should reject the former route: on this approach, our account of law loses all connection to the knowledge and attitudes of those whose law it purports to capture (P. 274). And on the latter route, the puzzle persists: even if all law is revisable, there remains a distinction between legal and non-legal revision calling for explanation (P. 287).

A final strategy doesn’t dissolve the puzzle but seeks to minimize it: why care about legal change at all? Either the legal order changes or it doesn’t. Nothing turns on whether that change is legal. Oza responds by pointing to the political value of legal change in a society characterized by deep disagreement (P. 290). He might also have cited the influence of originalist theory and practice as evidence of the political salience of the distinction between legally authorized and politically efficacious change.

We are left, therefore, with the puzzle: can a legal order authorize changes to its own foundations? Oza draws a parallel between this question and one in logic: whether it is possible, while using a given logic, to rationally conclude that one ought not use that logic. Hartry Field argued that it is,⁷ and Oza offers a parallel argument for law. The solution lies in distinguishing between two steps in the reasoning. The first is concluding that the highest norm ought not to be followed. This is possible: one can validly derive, in a logic, the conclusion that one ought not reason according to that logic. Similarly, Oza suggests, one can conclude by legally valid reasoning that the highest norm of a legal order ought not to be followed. He writes, “There’s nothing impossible about using Canadian legal reasoning to conclude that Canadian law is invalid. If a legal order includes rules about the conditions of its own validity, then it may also include the conclusion that those conditions are not met” (Pp. 281-282).⁸

The second step is to replace the highest legal norm with a new norm while still reasoning legally (or rationally, in Field’s case). Clearly, the replaced norm can’t be dictated by the previous highest norm. But, Oza argues, the previous norm can “ground its own replacement” (P. 282). The conclusion that law is invalid is itself a legal reason, which in turn supports the adoption of a revised highest norm. That revision isn’t an extra-legal change: we are “responding to a specific legal reason that is generated by the legal rules” (P. 282). In other words: a change to the highest norm of a legal order can be legally grounded, even if not legally authorized.

I am unsure of Oza’s solution. I worry that the parallel with rationality and logic is being asked to do more than it can. Field is intervening in a complicated debate about the relationship between logic and rationality. And even if that relationship were straightforward, I worry that the idea of “rational thought” does not sufficiently illuminate the idea of “legal thought” in Oza’s parallel. Do legally valid norms relate to legal reasoning in the same way that logic relates to rational thought? I don’t know. I am left with this question: What makes reasoning appropriately legal? It is in foregrounding this question that Oza’s article is especially welcome, and I hope it will prompt further discussion.

Oza argues that legal reasoning is not exhausted by drawing valid inferences from existing legal norms. A formally coherent system of norms can generate the conclusion that its own norms ought not to be followed. If such conclusions are to have any legal significance, that significance must come from some further standard of legal reasoning that is not itself captured by formal validity. Articulating that standard is an important theoretical task.

There are two further implications of his argument that merit attention. First, Oza’s argument exposes a problem for theories of law that identify what judges ought to do according to the law with valid legal content. If the law’s content can include self-undermining directives, then what is legally required might not be exhausted by what valid law directs.

Finally, Oza’s argument invites us to rethink a prevalent but overly crude picture of the relationship between judicial lawmaking and “gaps” in the law. In that picture, judges are authorized to make law only where the law explicitly directs them to, or where it is silent. Oza’s argument suggests this framing is incomplete. Judges might be legally directed to change the law not because it is silent, but precisely because it speaks against its own foundations.

The post Can Law Speak Against Itself? appeared first on Jurisprudence.

Erik Encarnacion

The rule of law matters. But what it requires is, as Jeremy Waldron famously observed, “essentially contested.”¹ There’s no shortage of scholarly work on the topic;² harder to find are accessible, article-length treatments that accomplish more than map entrenched positions or presuppose mastery of technicalities. We should therefore welcome Felipe Jiménez’s article, The Rule of Law.

The piece’s stated aim is modest. Jiménez seeks to restate and clarify existing ideals that, in his view, explain why the rule of law matters. But this modest enterprise delivers a user-friendly and philosophically serious account that distinguishes the rule of law from nearby concepts and explains why it remains so valuable.

The article accomplishes far more than I can convey here. Jiménez addresses, among other things, whether the rule of law favors particular institutional arrangements, the role legality played in facilitating Chile’s transition from Pinochet’s regime, the distinction between law-and-order rhetoric and the rule of law, and how the state-of-nature tradition illuminates the value of legality. He also offers a memorable suggestion that governing without legality amounts to governing like an “asshole,” in the technical, philosophical sense.³ Any one of these points is worth the price of admission.

My review will instead focus on what I’ll call the weightiness problem for certain theories of the rule of law, and how Jiménez has alleviated some of my concerns about the problem.

Some background. Consider two schools of thought about the rule of law. “Thin” approaches insist that, to understand the rule of law, we must not conflate it with the rule of good law. Joseph Raz, for example, once asserted that the rule of law requires only that the state rule by law, that people be guided by it, and that the law be capable of being followed.⁴ On this view, the rule of law consists of formal virtues but remains compatible with grave injustice. “Thick” accounts resist this conclusion. They embrace formal principles of legality. But they also insist that the rule of law exists in a community only if it secures substantive goods like basic human rights.⁵

Thin accounts are conceptually tidy and theoretically well motivated. But there’s a problem. The rule of law’s value is often taken to be weighty—so weighty, in fact, that it can require officials to adhere to law even when justice appears to demand the contrary. But it is not obvious why formal virtues should prevail against countervailing demands of substantive justice. This is the weightiness problem. Thick views seem to have a ready answer to this challenge that thin views seem to lack.

Against this backdrop, Jiménez aligns himself with the thin school, while also agreeing with proponents of thicker accounts that the rule of law cannot be normatively toothless. On Jiménez’s formulation, the rule of law requires “the subjection of political power to the discipline of law.” From this core idea flow two familiar requirements: that individuals be able to conform their behavior to law, and that officials themselves be bound by law. Neither claim is novel. But the way that Jiménez elaborates on these themes brings into focus a possible answer to the weightiness problem.

He does so, first, by drawing attention to the rule of law’s intrinsic value. Republicans have long emphasized freedom as non-domination, which in turn opposes arbitrary and capricious exercises of official power that subject persons to official whim. Jiménez shows how this conception of freedom flows naturally from subjecting official power to legal discipline. As he puts it, “The fact that public officials are constrained by law means that we are not subject to their whim, and that we can plan and decide what to do by relying on public, general legal rules.” (P. 16.) One could, of course, question this formulation.⁶ But the deeper point stands: robust republican freedom and a relatively thin conception of the rule of law fundamentally demand the same thing. True, the striking overlap between republican freedom and certain thin views of the rule of law has been glossed before. But rarely have the two been drawn together so clearly and explicitly. This maneuver, if successful, would render the normative stakes of the thin conception’s “merely” formal values higher than one might have initially expected.

The rule of law also has instrumental value. Although it does not guarantee substantive justice, democratic self-governance, or any other social good, Jiménez reminds us that these goods are extremely difficult to achieve or maintain without the rule of law, even if they don’t strictly speaking require it. He also cites empirical work that connects the rule of law to economic flourishing. Other thin accounts, by contrast, tend to downplay instrumental value in emphasizing the rule of law’s intrinsic value or lack thereof. (Raz himself once denied that the rule of law had overriding importance as a political value,⁷ in part because its relation to substantive goods was only contingent.) Taken together, these intrinsic and instrumental considerations strengthen the case for normally embracing the rule of law even when it seems to collide with the requirements of substantive justice.

This paper is rich. As I warned earlier, I couldn’t address everything worthy of attention. Yet for all its richness, The Rule of Law remains highly accessible—and already appears on my jurisprudence syllabus, as a result. I liked it (lots).

The post The Rule of Law, through Thick and Thin appeared first on Jurisprudence.

Nina Varsava

In Sustaining Stare Decisis as a Post-Merits Determination, Peter Povilonis offers an insightful and novel analysis of the U.S. Supreme Court’s stare decisis jurisprudence. He characterizes stare decisis as a procedural doctrine that, in its proper form, is separate from merits determinations. Just as some doctrines, including statutes of limitations and jurisdiction, are pre-merits matters, stare decisis, Povilonis argues, is meant to be a purely post-merits analysis.

This means that, in the horizontal context, stare decisis has effect if and only if the Court first determines that the precedent at issue is erroneous (or assumes for the sake of argument that it is erroneous, e.g., because the Justices disagree about that): the analysis “comes subsequent to a determination on the merits” (P. 671). The important upshot is that, once the Court makes the merits determination and moves on to the stare decisis inquiry, it can’t go back to re-assess the merits or improve the holding of the precedent. That, argues Povilonis, would be inconsistent with the post-merits methodology of stare decisis.

Why should we insist that stare decisis be implemented in a post-merits way? Povilonis argues that otherwise the doctrine would fail to serve its purpose, which, broadly put, is to serve values related to stability and efficiency. If the Court “upholds” a precedent only to revise the precedent’s reasoning, subsequent courts will have to figure out what the original precedent has come to mean, given the more recent decision.

This is exactly what has happened, explains Povilonis, in the wake of Kisor v. Wilkie (2019), where the Supreme Court proclaimed that it was upholding Auer v. Robbins (1997) and related cases while substantially altering the rule of deference to agency interpretations of regulations that those precedents stood for. This has resulted in confusion in the lower courts and even a circuit split about the meaning of Auer in light of Kisor. “The problem,” says Povilonis, “is that the Court engaged in a merits-based correction when deciding a post-merits question. This implementation of stare decisis in name only has created uncertainty about whether the aspects of the old doctrine now limited by Kisor’s new rule—like deference to unambiguous regulations—are still good law” (P. 683).

Povilonis’s view seems to assume that a decision either upholds the precedent at issue and we get the policy benefits of stare decisis, or the decision overrules the precedent and we get none of those benefits. The Court has to choose between issuing “a better legal rule but sacrificing other policy interests,” says Povilonis, or “uphold[ing] the case, obtaining the policy justifications but affirming an erroneous legal rule. The Court cannot have it both ways” (P. 693). I’m not sure about that. Even if a decision is based on substantially different reasoning from a precedent, it might maintain some consistency with the precedent and serve the stare decisis values to some extent. Further, I’m not sure that the Court is always in the best position to ascertain the extent to which it is overruling a precedent. That might be best worked out by lower courts as they encounter new facts.

For example, Povilonis invites us to imagine that, in Dobbs,

Instead of overruling Roe v. Wade, the Court claimed to uphold Roe. Yet, while ‘upholding,’ imagine the Court nevertheless laid out a new test which allowed for states to ban abortions [after] 15 weeks. Would Roe have truly been upheld? This example is not so imaginary, as it resembles the approach of a concurring opinion. See Dobbs, 597 U.S. at 352. (Roberts, C.J., concurring) (arguing that a state law prohibiting abortions [after] 15 weeks should be constitutional without having to overrule Roe). (P. 686, n.201.)

I’m not convinced that Justice Roberts’s position is untenable, nor that his opinion isn’t better for stare decisis reasons than the majority’s in Dobbs. It’s not implausible to think that an important part of the Roe/Casey holding involved protection of a meaningful opportunity to choose to have an abortion. And, as Roberts noted, if people were relying on those decisions, what they were relying on was that kind of protection—i.e., of a meaningful opportunity obtain an abortion—and not the specific details of the trimester framework or undue burden standard, technicalities with which few non-legal experts would have been familiar. Further, we can imagine a decision that upheld the abortion precedents but on entirely different grounds—for example, of equal protection rather than substantive due process. A decision like that, it seems to me, would have served some of the stare decisis values. Casey itself substantially revised Roe’s reasoning and holding, and yet I don’t think that decision completely undermined the purposes of stare decisis. It seems that Casey did protect reliance interests, certainly more so than a decision like Dobbs.

In any event, Sustaining Stare Decisis as a Post-Merits Determination is a welcome contribution to the literature on adjudication, legal reasoning, and the Supreme Court, bringing clarity to the fraught and often confusing practice of stare decisis. I think an important lesson to be taken from the article is that we should not take the Court at its word regarding whether it’s overruling a precedent; as Povilonis nicely illustrates, the Court sometimes effectively overrules a decision not merely without saying so, but even while insisting that it is upholding it. I would add that, likewise, perhaps sometimes the Court proclaims to overrule a decision when it really doesn’t have the power to do so, because the question before it is narrower. Just as we shouldn’t take it for granted that the Court is exercising as little law-changing power as it purports to, we should question whether the Court is exercising as much law-changing power as it purports to.

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Carlos Bernal

In The Object of Interpretation, Professor Urbina offers a comprehensive exploration of this topic. He addresses the nature of the object of interpretation, the different senses of the term “object of interpretation”, the alternative candidates for objects of interpretation, and how to determine which should be the object in practice. The paper claims that there is no single correct object of legal interpretation. Text, lawmaking choice, practice, and order are suitable candidates. None of them are necessary objects of interpretation. Ultimately, the object of interpretation is what is treated as a precise source of law, namely, facts that are recognized as generating law. Which candidate is the object of interpretation in any given context is contingent on descriptive considerations on what is regularly treated as a legal source in that legal system and on normative considerations on what officials should treat as a legal source. In this sense, officials cannot presuppose what the object of interpretation is. They should ground what that object should be. Furthermore, in many instances, the object of interpretation is legally unsettled. When this is the case, legal interpreters must exercise discretion in choosing an object of interpretation. But they must also deliberate morally about whether to follow a legal settlement when there is one, and about which settlement they will help bring about when one is needed. Hence, the “‘correct’ object of interpretation is, then, a function of positive law and moral judgment”.

For his analysis, Professor Urbina understands a legal source as a “thing that contains or generates legal norms”, and legal interpretation as the activity of determining what legal norms are generated by legal sources. According to his point of view, a legal source is a fact that generates legal norms that either (i) has been issued according to the rules of the legal system; or (ii) that has been recognized as a legal source in legal practice by officials. In any of these cases, the legal system could recognize a source more or less “precisely”. Thus, it could recognize, for example, “What the Queen in Parliament enacts” as law or “The text that the Queen in Parliament enacts” as law. The latter recognition is at the level of precision of the object of interpretation. Thus, the law here settles the object of interpretation by sanctioning one of the possible alternatives. These two features can break a possible circularity problem, namely, that a legal source is a fact that can generate legal norms, and, at the same time, a legal norm is a determination grounded in a legal source.

Moreover, Professor Urbina conceptualizes the task of “determining the object of interpretation”. From his perspective, this task is twofold, namely, it requires attending to the legal sources that are recognized as law in a legal system and to practical reasons bearing on an interpreter’s choice of an approach to interpretation. Even when a legal system settles on an object of interpretation (“the text that the Queen in Parliament…”), individual legal interpreters still face a choice of either going along with this legal settlement or not. The law may provide a reason for the choice of object, but it need not be a conclusive one. In turn, the choices of legal interpreters may alter the legal settlement, and thus, through individual interpretations, the legal system may settle on a different object of interpretation—or on none. Thus, one can think of the “correct” object of interpretation in three—equally valid—senses. First, as legal correctness, that is, as what “corresponds to either what the legal system recognizes as a source of law in that legal system or is mandated by a legal rule”. Second, as practical and individual correctness. This is about what an interpreter should treat as the object of interpretation, and it depends on “the moral and prudential reasons bearing on that choice”. Third, as practical and systemic correctness, namely, what a legal system should recognize as a precise source of law, thus settling on an alternative on the object of interpretation.

Prof. Urbina’s contribution to the topic is both highly original and illuminating. It also opens a big field for future interpretation. How should officials undertake a process of choosing the object of interpretation? Should they always begin with the socially recognized text and then assess the relevance of lawmaking choice, practice, and order? Or should they proceed the other way around? Namely, should they begin with interpreting the practice, then order, lawmaking choices, and finally, the text? Furthermore, how to articulate descriptive and normative reasons? In case of conflict, what sort of reasons should prevail? Should officials operate with normative reasons in all cases or in cases of open-textured texts? All these questions can lead to deconstructing the field of choosing the object of interpretation to an uncharted territory of topoi. The value of Prof. Ubina’s article is to highlight the complexity of choosing the object of interpretation that, in the work of many other authors, remains hidden.

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Sean Coyle

The Nature of Law is an insightful and engaging book that challenges almost every touchstone of modern jurisprudence. Proceeding from the thesis that laws must be understood after all as commands rather than rules, the book defends the thesis that law itself must be understood by reference to the common good. The view that the law consists of commands does not take us back to the Austinian jurisprudence that preceded H. L. A. Hart’s (the author maintains that John Austin’s theory is indeed radically defective), but challenges the modern consensus that Hart’s conception of law as a system of rules is really the advance it is supposed to be.

The book’s central sections deal with the question of whether there is an obligation to obey the law, not (as Joseph Raz maintains) merely because the law consists of reasons for action that apply to the subject anyway (P. 199), but because the law secures the common good in ways that cannot be successfully contemplated or advanced by multitudes of individuals, even if those individuals steadily wish to act for the common good. This thesis is linked to that of command, for the author argues that commands generate genuine obligations, and do not simply, as Hart suggested, oblige (Pp. 93-96, 204). In fact, it is Hart who runs into trouble, for his argument is based on the idea that rules are to be theorised as practices, but these can be shown to lack a normative element.

Here, the author seems to run aground, for Hart in this sense follows the lead of Aristotle and Aquinas, in supposing that a function of law is to coerce un-virtuous people to act virtuously until they come to love virtue and act for its sake. The un-virtuous can be described as engaging in a practice, yet continue in that practice only in order to avoid punishment, or merely ‘conform’, and not because they have ‘internalised’ the values that structure the practice. But practices can be moral, too: the virtuous also engage in a practice (in extensional terms, the very same practice as that of the un-virtuous), but they do so because they deem the practice to be good, even if only good on the whole. Furthermore, is not ‘acceptance’ normative? (P. 62.) Whatever the relative merits of commands vs. rules, the central thesis of the book is, to repeat, that law in the proper sense is orientated to the common good. Individual laws that do not serve the common good “remain law, but [weigh] down the system and potentially erode its legitimacy” (P. 15). It is unfortunate that the book does not offer a finely calibrated account as to the various ways in which a legal rule erodes the legitimacy of the system, the significance of these, and at what point legitimacy disappears under the weight of evil laws. The only worked-out example given is that of Nazi law, which is well-trodden and too well-known to offer any substantial new insights (P. 140).

Having progressed from the controversy of commands vs. rules, the central chapters of the book concern justification (Ch 3) and authority (Ch 4). Both of these chapters critically discuss Raz’s jurisprudence, challenging his ‘service’ conception of authority. Chapter 4, which is the longest in the book at over 90 pages (Pp. 185-278), is the one about which I have least to say. It is somewhat repetitious and too long for even the most eager reader to maintain focus. But one thesis did stand out. The author asserts, like John Finnis and Robert George, that the law, in seeking the common good, consists in settling coordination problems (P. 196). This established thesis should be given up. For the foundational projects of the law in fact pertain to justice (e.g., in accidental and intentional harms, in transactions and rights of ownership) and in fairness (procedures and due process, delegated authority and legislation, and so on), and neither of these projects essentially aims at coordination.

There is much else in the book that is of interest, but I have confined myself here to what is most original in the author’s argument. I want to close this review by picking out a single sentence that has, in fact, great significance for the author’s project, implying as it does a methodological assumption. Stating that we need an account of why particular standards count as law, he asserts: ‘Any analysis requires a unitary definition at some stage’ (P. 131). Such a viewpoint, which drives many legal theories and not just the author’s, could itself be challenged on the ground that the concept of ‘law’ is one structured by family resemblance at most, there not being a single archetype or shining example against which all legal systems or practices are judged (for indeed we can ponder whether all law-practices are systematic above and beyond being consistent). The very idea that a unitary definition is possible in legal theory is one that should not be automatically assumed.

In conclusion, there is much of interest in this book, to agree with or dispute. It is a testament to the book’s originality that either of these eventualities will be extremely profitable.

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Izabela Skoczen

In the article, Lawful, But Not Really: The Dual Character of The Concept of Law, Brian Flanagan and Guilherme de Almeida challenge the traditional divides in jurisprudence as to the definitions of the concept of law as well as the concept of legal validity. The article intends to offer a novel, third-way approach between the two traditionally most populated camps in legal philosophy, namely positivism and natural law theory.

The novelty of the article does not consist only in its theoretical appeal, but also in adopting a relatively new methodology, namely the methodology of experimental jurisprudence (“xjur”). Xjur seeks to shed new light on traditional jurisprudential questions by employing the methodology of the psychological, sociological, or cognitive sciences. The methods include, among others, massive online surveys, corpus studies (analyzing a large collection of texts), neuroimaging, or decision-making in immersive virtual reality. Using these methods permits researchers to achieve a more accurate grasp of how people understand concepts such as, for example, intention, causation, rule, law, or reasonableness. Moreover, using such methods permits us to end speculation as to, for example, what the linguistic or conceptual intuition of a certain population is. See SEP entry on experimental jurisprudence.

The Authors employ the methodology of massive online surveys in a very rigorous way. They first preregistered their hypotheses, which consist of placing these hypotheses on an online platform that makes it impossible to alter them after running the experiments. The Authors performed a series of attention and comprehension checks, ensured that no participant would take the study twice, and that participants would be native speakers of the language of the survey.

Flanagan and Almeida argue that the concept of law is a dual character concept. But what is a dual character concept? Imagine that someone paints with a brush on canvas an incredibly kitsch landscape. There is a shallow, superficial sense in which it is art, as it is a painting. However, since the painting is empty and does not convey much of a message, one could say that it is not really, or truly, art in a deeper sense. By contrast, think of conceptual art – it may not be a painting on canvas, but it might convey a very powerful message. Thus, one could say that there is a superficial sense in which it is not art, yet in a deeper sense, this is truly art.

Analogously, think of the concept of a scientist: if someone performs a lot of experiments, yet has no curiosity or interest in the truth, are they a true scientist? Or only a scientist in a superficial or shallow sense? By contrast, think of a person who never performed any experiments, but has some innate, avid curiosity for the world. There is a sense in which this person is not a scientist, yet there is also a sense in which this person is a true scientist.¹

Flanagan and Almeida argue that the concept of law also has a dual character, just like the concept of art or the concept of a scientist. For example, imagine that a legislature enacts an incredibly unjust and immoral statute that enables slavery. You could say that there is a shallow sense in which this is a law as it was enacted by a legislature, but it is not a real or true law, because it is so immoral. Conversely, if slavery was never banned in a country, one could say that there is no law against slavery in a superficial sense, but slavery is not really or truly lawful.

The general idea is that certain concepts have two sets of application criteria. First, some descriptive, superficial criteria of application and, second, some normative or deep criteria. Flanagan and Almeida argue that, for the concept of law and the concept of legal validity, the superficial criteria could be, for instance, enactment by a legislature, while the deep criteria may be certain values, rights, or morality, be it substantive or procedural.

Such a manner of conceptualizing law presents a third way between the two biggest traditional jurisprudential camps of defining the concept of law, namely positivism and natural law. There are many varieties of positivism; however, roughly speaking, a positivist would claim that there is no necessary connection between law and moral value. Thus, a law in a superficial sense, but not in a deep sense, may be a valid law (though Hart acknowledged the need for a minimum necessary moral content of law; on the blurred divide between positivism and natural law theory, see footnote reference).² Conversely, a law not in the superficial but in the deep sense may not necessarily be a valid law.

By contrast, the proponents of natural theory doctrines would, roughly speaking, claim the opposite: a law in a shallow sense, but not in a deep sense, is not a law, while a law in a deep sense, but not in a shallow sense, may well be a valid law. This is a much simplified picture; I refer the reader to Flanagan and Almeida’s excellent paper for more nuance on the different stances on the concept of law. The Authors also discuss different candidates for the values underlying a dual character concept of law, one of them being Fullerian procedural morality.

The central question that remains is whether this stance is shared by the wider population, or is it just philosophical speculation? Flanagan and Almeida perform two preregistered experiments, arguing that the dual character intuition is indeed shared by a substantial part of the population. They tested scenarios in which a ban on a morally neutral or immoral behavior was either lifted or the behavior was never banned. In such cases, people tend to agree with the statement that “there is a sense in which [conduct-type] is clearly lawful, but ultimately, if you think about what it really means to be lawful, you would have to say that [conduct-type] is not lawful at all.” Check out their paper for more riveting details on the concept of legal validity!

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Brian Bix

Gregory Klass’s article, What Might Contract Theory Be?, was published in the collection, Understanding Private Law, a volume honoring Stephen A. Smith, the eminent Contract and Private Law Theory scholar who passed away far too young (shortly before this volume’s publication). Klass’s article focuses on an influential discussion in the first chapter of Smith’s influential work, Contract Theory.¹ In that chapter, Smith sets out the criteria he believes should be used to evaluate theories of contract law. In particular, Smith offers four criteria: fit, coherence, morality, and transparency.² In Klass’s discussion, he asks good, probing questions of each of Smith’s categories and the way that Smith applies them. (Pp. 183-89.) However, Klass’s most important challenge may be the following, general one: should a theorist of contract law (or other doctrinal areas of law) be essentially an outside spectator to the practice, or essentially a (kind of) participant in the practice?

Whether theorists should be (or should treat themselves as being) participants or observers has been an active dispute for some time in the related area of general theories about the nature of law. Many of the best-known theories of law take primarily an observer’s attitude towards the subject – law, legal norms, the legal system. At the same time, at least since the work of H. L. A. Hart, they have simultaneously given significance to the “internal point of view,” the fact that some of those in the practice accept the law (as giving them reasons for action).³ By contrast, Ronald Dworkin presented a theory of law, and an approach to theorizing about law, in which the theorist is a participant in the practice, and “no firm line divides jurisprudence from adjudication or any other aspect of legal practice.”⁴ Hart’s response to Dworkin on this matter was simple: that whatever value there might be to a theory built entirely from an insider’s perspective, “there is an important place for general and descriptive jurisprudence”.⁵

As Klass reports, Smith, in Contract Theory, takes Hart’s position for contract law theory: endorsing incorporating the internal point of view (P. 182),⁶ but combining this with a participant’s perspective. By way of critique, Klass argues that, at least for common law jurisdictions (like the United States), where judges have both the authority and the responsibility to alter and improve the law while resolving individual disputes, the theorist should take the participant’s perspective, not a spectator’s perspective. (P. 190.)⁷ The judge and the lawyer considering a question of contract law – in particular, if it is a question of first impression or if there is a reasonable argument for revising existing law – will argue in terms of a “rational reconstruction” of precedent. Rational reconstruction takes the prior decisions and re-characterizes them in a way that makes them as good as they can be relative to the justifications of that area of law, or relative to the justifications for law generally. Such rational reconstruction, it can be seen, requires, or at least benefits from, the sort of resources one could find in a theory of contract law: views about the overall objectives of contract law as well as the intermediate-level objectives of various contract law doctrines and principles. So the theorist of contract law effectively is doing the same thing as the advocate or the judge: “participa[ting] in the shared project of using available materials to achieve the best possible law of contract”. (P. 191.)

How we should best understand and evaluate theories of doctrinal areas of law remains an underdeveloped area of legal philosophy. Stephen Smith offered an important early analysis, and Gregory Klass has now contributed valuable refinements to Smith’s views. But Klass’s article also raises new questions. For example, if Klass’s argument is tied to the nature of common law decision-making, does that mean that one might (should) have an entirely different theory of contract law for civil law legal systems?

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Kenneth Himma

Luka Burazin’s Naturalized Jurisprudence is an elegant discussion of the various movements to naturalize legal philosophy. Burazin differentiates between substantive and methodological naturalism, further distinguishing two types of substantive naturalism: “Ontological naturalism is a view that philosophy should accept as real or actually existing only (in a broad sense) natural things, properties, entities and phenomena (i.e., those identified through the methods of empirical sciences)…. Semantic naturalism is the view that a philosophical analysis of a concept must show it to be ‘analyzable in terms that admit of empirical inquiry’” (P. 1).

In contrast, he explains methodological naturalism as “the view that philosophical theorizing should abandon armchair theorizing on the basis of philosophers’ intuitions and common-sense beliefs (‘truisms’), thought experiments (hypothetical situations), and a priori conceptual analysis, and use instead the (empirical) methods of successful (natural and social) sciences and the scientific style of explanation.” (P. 1.)

It is worth noting at the outset that ontological naturalism, as stated here, appears to be inconsistent with the existence of propositional and non-propositional abstract objects, such as law, sets, and objective moral rules, which our linguistic practices assume exist, because picked out by noun-terms. If ontological naturalism is concerned to explain the world that we construct with our conceptual, mathematical, and evaluative practices, it seems to be a non-starter from the outset. If it is concerned with identifying some mind-independent truth, it seems unequipped to do so.

While an ontological naturalist might, as Burazin points out, explain law in terms of human behaviour and mental states, there are two problems. First, since mental states are not publicly observable, an ontological approach would have to rely on verbal testimony that describes their mental states, evidence that might not always be available. Second, it is not clear that law and its associated practices can be adequately explained without relying on abstract non-naturalistic objects, like norms and systems.

Burazin goes on to characterize American Legal Realism (ALR) as a form of methodological naturalism that “advocates replacing conceptual and normative (justificatory) theories with empirical and descriptive theories (thus changing the goals of theoretical inquiries), or normative naturalism, which aims to regulate a certain human practice (e.g., of acquiring knowledge or adjudicating) but requires that normative theories be based on empirical findings on which normative recommendations can actually be followed by their addresses and can actually produce the desired effects” (P. 2).

In his view, ALR advocates abandoning normative theories of how judges should decide cases with empirical studies of judicial behavior that do no more than explain the judges’ decisions in terms of their beliefs and inferences they make.

Of course, this seems to require that we utterly abandon normative theorizing about legitimate judicial decision-making. If the goal of theorizing about law is to understand the notion as we construct it, which comports with a methodological naturalist approach, then a replacement naturalism of this sort will fail to explain the most important dimensions of our shared lives together – our normative and evaluative practices. While, I suppose, those practices might be objectively mistaken (assuming such talk can be explained within a naturalistic framework), not being able to explain or even address them comprehensively greatly diminishes the utility and value of a naturalistic explanation.

Related to this line of thought, Burazin considers Leiter’s proposal “to abandon a priori conceptual analysis of the concept of law and turn jurisprudence into an abstract and reflective part of empirical social sciences of law, with the main task of jurisprudence being to offer ‘greater reflective clarity about the concepts invoked in the most powerful explanatory and predictive empirical social-scientific research on law” (P. 4).

One concern about Leiter’s proposal is that it seems to require abandoning all a priori analysis, leaving us no way to explain logical and mathematical reasoning – even if it countenances the existence of norms.  Deductive reasoning is a matter of evaluating inferences under certain standards of reasoning and is hence a priori in character.

None of this should be taken to deny, of course, the altogether sensible suggestions that empirical experimental methods are useful in clarifying the content of our concepts – especially if one takes the position that the only concepts to which we have epistemic access are the ones that are manufactured by our shared practices for using words.

Sensing these issues, Burazin proposes a “conceptually methodological naturalism” that “retains the conceptual goals of traditional jurisprudence … but requires that conceptual analysis be based on the empirically ascertained usage of the relevant words” (P. 5).

Indeed, this is the very template that Hart and Raz adopted, as both were concerned with analyzing our ordinary concept of law. As Hart put this important point at the beginning of the Preface to The Concept of Law:

More over, at many points, I have raised questions which may well be said to be about the meanings of words.… Many important distinctions, which are not immediately obvious, between types of social situations or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself left unstated.¹

Similarly, as Raz explains:

The notion of law as designating a type of social institution is not … part of the scholarly apparatus of any learned discipline. It is not a concept introduced by academics to help explain some social phenomena. Rather, it is a concept entrenched in our society’s self-understanding…. It is part of our self-consciousness, of the way we conceive and understand our society…. That consciousness is part of what we study when we inquire into the nature of law.²

It is hard to do justice to Burazin’s essay with so few words, but I can say this: in six pages, he manages to provide an accessible, though philosophically sophisticated, explanation of many different naturalistic theses. Though many of these positions remain contentious, as my discussion of them suggests, this is a well-written, elegantly organized discussion of a topic that has many dimensions. It is a fantastic starting point for anyone – theorists, students, and laypersons – interested in understanding the naturalistic movement.

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