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Robert C.

I hope you're planning to continue this thought sometime and not leave us hanging wondering whether essences ever really exist, esp. in a legal context. And to what extent intent is important in the philosophy of law. Many legal situtations seem to hinge on intent (murder cases most dramatically), but how does the legal process itself depend on the perceived intent of the law?

At least say something about the connection between intentions and conventions (as pertaining to your social contract post a while back, which I'm still trying to digest...). Or, from your intent vs. essence internal dialogue, which of the issues you think are easier to handle and which (if any) are more dificult to handle.

Robert C.

...social construct, not contract, I accidentally pressed post not preview....

Nate Oman

Robert C.: Holmes would say that legal concepts have no content apart from the practical goals that they serve. For example, he would say that it is senseless to ask the question of whether a lisence is a contract. Rather, we ought to ask the question of whether treating a lisence as a contract advances the goals that we want to pursue. The appeal of this is that it offers us a hard-headed, pragmatic way of cutting through some very difficult problems of legal interpretation.

The problem with it, in my view, is that it leaves the authority of the law dangling. If we believe that the rule of law is a meaningful idea, then it seems to me that we are committed to the notion that legal concepts have some conceptual bite independent of the goals the law is pursuing. Hence, we will need at least some cases in which it DOES make sense to speak about what a contract is independent of the goals that we see contract law as pursuing. Without this, we lose the idea of law and are left with nothing but official behavior and/or open-ended policy decisions.

Robert C.

Are there any areas of positive legal theory that are not subject to this same criticism?

In Holmes' view, or any positive theorist for that matter, how is it proposed that we decide which laws are good and which are bad? Does it boil down to consequentialism? If so, then who decides what consequences are desirable? "The people"? Then what's to prevent this from degenerating into majoritarianism then? What room does this leave for saying anything useful about something like constitutionalism?

Clearly, I have little understanding of the positivist approach to the philosophy of law. Of course I know you don't have time to explain it all to me, but I'd appreciate a couple hints as to where to get started in answering these questions have been nagging at me for a long time. As an economist, I think I'm not alone in keeping positive theory and philosophy completely compartmentalized. Positive theory seems a useful tool, but it's only a theory, right? How can one speak to philosophy (esp. phil. of law) with positive theory?

Robert C.

Or maybe it'd be easier to give a taste of how a positivist would answer the following Crime & Punishment question (with a twist): What's wrong with a system of laws that would excuse murder if, say, a super majority (of jurors or the public) decided it was, after all, in the best interest of society that this burden on society was in fact murdered?

Am I on the right track at least seeing questions like this as more problematic for the positivist than for the naturalist, counterbalancing the simplicity gained by what you mentioned above? (I guess I may just be restating what you already said about leaving the authority of the law dangling and legal bite, in which case you can ignore me with an easy conscience....)

Nate Oman

Robert C.: I am not quite sure what you mean here by positivist. I take it that you are borrowing the term from economics, where it refers to descriptive rather than normative theorizing.

It seems to me that we have two different kinds of inquiry with the law. Both are to some extent normative. One is the question of what makes this or that law a good or bad thing. It is about evaluating the desirablity of particular rules.

The second is about the contours of the law itself. One way of thinking about this question is whether or not legal reasoning is autonomous. Is it actually possible to have legal arguments that are different than simple policy arguments. Holmes thought not, which has some potentially scary implications.

As for Holmes's actual views on what makes for good policy, he held a fairly uber majoritarian, social Darwinish kind of view, which is ironic given his later apotheosis as a prophet of free speech.

Robert C.

Nate, having done a little more reading, I think my problem above is not blurring the lines between positive legal theory and positive economic theory, but not taking the similarities far enough. That is, I was construing legal positivism (as described in the SEP article linked above) as a complete philosophy of law (making evaluative claims), which apparently it is not and doesn't claim to be. I took comfort in the SEP article suggesting that this is a common misconception and going to some length to emphasize that legal positivism does not take an evaluative stance on the desirability of different rules/laws. (I'd be curious about your take on the article if you ever get a chance to read it--I think he discusses the terms in the first section.)

But even if the positivist approach (esp. a la Hart) doesn't explicitly address evaluative issues, I think there is an evaluative danger implicit in the sidestepping of the issue. Which I think is similar, or at least related, to the criticism of Holmes you're making above. I guess this is the heart of Dworkin's critique too, that the positivist approach makes a mistaken separation of law and morality.

I worry though that Dworkin's interpretive approach runs into similar kinds of problems with his disinterest in the ultimate morality of law. As economists, we very explicitly leave normative issues regarding, say, economic prosperity vs. distributive equality/fairness to the philosophers, but I'm a bit surprised to see as many big name legal philosophers (or at least legal theorists) as agnostic on these issues as they appear to be....

Robert C.

The link to the SEP aritcle didn't seem to work (do html tags work for these comments?): http://plato.stanford.edu/entries/legal-positivism/

Robert C.

So, to see if I'm understanding the various legal theories correctly, let me try to answer my hypothetical above: Suppose Irat, a newly formed legal democracy, passes a law saying that anyone who is a superman may kill someone they think is a detriment to society.

Frankolnikov is an obvious superman (doesn't have the same self-doubts as his brother Raskolnikov) living in Irat and kills a grumpy old lady.

The gumpy old lady's family is looking for legal representation and stops by the positivist firm. Hart opens the door and says, "the primary law says Frank was within his rights, and there are no secondary laws that prevent applying this primary law to his case, so we can't help you. But there are some moral philosophers across the street who might be able to help." The family makes eye contact with Holmes in the background who has overheard this conversation, but he simply shrugs his shoulders in a "sorry, I can't help either" gesture. On the way out, Mr. Economics, steps out of the elevator (holding coffee for everyone else) apparently having overheard, and nods his head in agreement with Hart and, before the elevator doors are closed to carry the family back downstairs, is excitedly talking to Hart about starting a campaign for a similar law in the U.S. which would surely lead to a greater utility on average (Mr. Econ has no understanding and no opinion about morality, so he's deferring to everyone else on those issues, he's just salivating over so much potential of greater expected utility....)

Next, the family stops by the interpretivist firm and Dworkin answers. "Well," he says, "if you can prove that your grumpy old grandma was actually a nice person, then we can invoke a greater good principle and say that Frank overstepped his bounds by killing someone who wasn't a detriment to society. Even though the law says he has that right, the law is subject to higher moral principles. However, if there is no precedent in Irat's history that establishes a relevant higher principle, then you're SOL."

Then they stop by the Natual Lawyers office and Rawls answers. "Sure, we've got a great case here" he says, rubbing his hands together, "the law is clearly unjust because it's obvious that from the non-superman's perspective, this is not a desirable law, so all we have to do is show that if someone weren't a superman (or hypothetically didn't know they were a superman), there's now way they'd agree that this law was just." Kant, Rosseau, and Locke are all nodding in agreement in the background--even though they might not argue the same way, this is surely a case they think is winnable because the law clearly violates the natural rights of the grumpy old woman.


Nate Oman

Robert C: I think that you have things about right. I would just make a couple of points:

1. Your hypothetical law incorporates two potentially moral concepts -- superman and detriment to society. There is a big debate among legal positivist about how we should interpret terms like these. So-called inclusive legal positivists would say that we should treat these terms as referring to actual moral concepts, and hence the correct legal answer hinges on the objectively correct moral answer to the questions posed by the terms -- ie is the old lady really a detriment to society? In other words, the inclusive legal positivist would say that this law involves actual moral judgment. The exclusive legal positivist would say that you can't have actual moral concepts in the law, and that therefore we should take the moral terms contained in this law -- superman and detriment to society -- as referring to social understandings of those terms. Accordingly, the judge and lawyer in applying the law does not make any moral judgments only sociological ones.

2. To understand why philosophy of law spends so much time muddling over what the law means rather than what it ought to be is to understand the distinction between legal and political philosophy. Lots of overlap between them, but they are not quite the same beast. Furthermore, once one strays from non-obvious legal cases to more difficult ones, the debates of the legal philosophers become much more relevent than they might appear at first blush to be to a layman.

3. Your economist -- it seems to me -- is a little delusional. The notion that we ought to maximize utility cetirus paribus is a moral claim. Furthermore, I suspect that his focus on positive economic analysis and his insistance that he leaves evaluative questions to philosophers will frequently tempt into the equivocation of assuming that utility as a measure of welfare and utility as the maximand of a function designed to model behavior are the same thing. There is actually some very, very interesting stuff that has been done on the normative use of efficiency and utility in legal arguments by law & economics scholars. I think that the most interesting critic of the economists is Jules Coleman, especially the essays collected in _Markets, Morals, and the Law_. Currently, the most ambitious normative law & economics scholars are Louis Kaplow & Steven Shavell, especially their book _Fairness v. Welfare_.

4. You might be interested in what many legal philosophers regard as the failure of Dworkin's jurisprudential project. Check out Brian Leiter's paper "The End of Empire."
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=598265)

Robert C.

Thanks, for the comments and esp. the book and paper references (I'll probably have some questions about them for you later...).

About the economist being delusional, I think if you pressed most theoretical economists, they would be agnostic about all "oughts". That is, most positive theories (http://www-rcf.usc.edu/~etalley/Oxford.pdf) are simply showing the consequences of particular assumptions. This gives economic theorists a nice default to fall back on: "My model only shows what will happen IF certain assumptions are met. And I only look at what you need to do IF you want to maximize utility...." With this approach, economists can claim to be as objective and amoral (and irrelevant?) as mathematicians.

Of course, there's a latent belief that maximizing utility is the right thing to do (else why is it such an interesting question to study?), which is why economics is dangerous and not completely irrelavant. So I definitely share your concern about the obfuscating temptations raised via positive economic analysis. In particular, I think it de facto tilts the scales toward a consequentalist moral stance.

My point is simply that you shouldn't underestimate economists' affinity for the CYA principle!

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