Tuesday, October 20, 2015

The Argument Against Conceptual Jurisprudence, Part 2: The A Priori Version

As I don’t just want to repeat what I said in my paper, I present here a somewhat different take on the issues. So here is a passage from an article Les Green published in 2008, which I did not discuss in my paper:
Law tells us what we must do, not merely what it would be advantageous to do, and it requires us to act in the interests of other individuals or in the public interest generally, except when law itself permits otherwise. Every legal system contains obligation-imposing norms and claims legitimate authority to impose them.
Green draws from this a surprising conclusion: “neither a regime of ‘stark imperatives’ that simply bosses people around nor a price system that structures people’s incentives while leaving them free to act as they please would be a system of law.”

The claim about the regime that bosses people around is inconsistent with Hart, who said that “In an extreme case the internal point of view…might be confined to the official world….The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.” This departure from Hart was probably intentional. After all, the whole point of Green’s paper was to argue that Hart was wrong to argue that there is no necessary connection between law and morality.

My aim here is not to defend Hart against Green. It is to argue that both Green’s claim and its negation cannot be defended as conceptual claims about the nature of law. I will demonstrate this point in relation to Green’s claim, but exactly the same argument can be made against anyone who holds the opposite view as a conceptual claim about law.

Green does not explain what he means by a regime that “simply bosses people around,” so it is hard to be sure what kind of regime he has in mind. It is quite clear, though, that he does not think that such a regime cannot exist, only that such a regime, if it existed, would not be governed by (or with) a legal system. Another important clarification is that to say that a regime that “bosses people around” is not law or a legal system is a perfectly plausible claim if jurisprudence is understood as a branch of political theory, if an account of the nature of law is not understood as conceptual. (I discussed the relationship between legal theory and legitimacy here.) But Green does not want to do that, of course. He wants his claim to be a purely conceptual, politically neutral, claim about the nature of law.

To make matters more concrete consider the following description of a real-world regime that sounds like it bosses people around. Under the headline “A Climate of Fear and Violence” the Washington Post recently reported that “The Islamic State uses its brutal and often arbitrary justice system to control the millions of people who live in its territory.” This brutality is the product of “Local people [being] ruled by the Islamic State are subject to the extreme laws,” because “militants make legal judgments based on an extreme interpretation of Sharia law.”

Did the Washington Post commit a conceptual error here? As I see it, Green would say yes. I say no.
How are we to know? Imagine that we conduct a survey to discover people’s attitudes about the matter and we see that all society thinks that the regime in question is law. The newspaper example is useful, because it shows this imaginary case is not so fanciful. After we see that some people use the word “law” in this way, with no scare quotes or by suggesting that their usage is metaphoric. All I ask to imagine is a community in which all people think the same.

Green must argue that all people within this community are wrong. They just don’t understand what law is. But what is it that they don’t understand? They can create a category that they call “law” according to which the regime that bosses people around is law. In fact, we have some evidence that this is what people actually do. Is it wrong of them to define and use this category as they please? I cannot see why not.

Green’s argument then must be that this category they created and which they refer to using the word “law” is perfectly fine, but that what it refers to is not the category of real law; that it refers to something else. Now, of course, the same must be true if the community in question consists of the entire human population. Their category is perfectly fine, and if they wish they can go on using it; it’s just that they are not talking about real law.

I hope you see why I called this view Platonism. For many, I suspect, highlighting the ontological commitments of this view will be enough to reject it. But my argument is not simply, “This is Platonism, and ipso facto false.” But this view still raises some puzzling questions:
  1. The category law (that is, real law, which is different from the category people refer to when they say “law”) is not a social construction. To be sure particular laws are a social construction, but the category itself is not. How is that consistent with the claim that “Law [note well: not laws] is a social construction” which opens Green’s Introduction to the new edition of The Concept of Law?
  2. The category real law exists, just like the category to which humans refer when they say “law” and literally an infinite number of other categories. Why should we care about real law if all of humanity manages by, and apparently prefers, to use another category? Why is this category the category that captures the entity of law? 
  3. What singles out the category real law for investigation from the infinite other categories that humans do not refer to? If the answer is that people in fact do refer to this category when they say “law,” we would ask for the evidence for that claim. Moreover, even if we were shown the evidence, that would imply that the category deserves our interest becuase (and only to the extent?) humans actually use it.
  4. If people do not, in fact, use this category, the only answer proponents of this view can provide for our interest in it (and it is, sort of, the answer hinted by Julie Dickson) is that people are groping for that category, but due to their confusions are failing to capture it. If that were the case that might explain why we might be interested in the category real law even if most or all of humanity fails to accurately refer to it. But, once again, there is the same catch: this claim, namely the claim that people are striving but failing to understand law in this way, is an empirical claim.
  5. Of course, no supporting evidence for this claim is provided. Quite the contrary, the only available evidence comes from legal philosophers (other people are thoroughly uninterested in the question), and the evidence coming from them does not support the argument. Unlike in other contexts in which people are willng to change their categoririzations after being presented with evidence or an explanation (people, for example, are typically willing to change their categorization of whale from fish to mammal) they are not willing to change their categorization in the context of law. That challenges the groping-but-failing thesis.
To summarize: Green suggested that until I deliver the goods with quantitative studies about the sociology of jurisprudence, we need not worry about alternatives. I explained that this charge misunderstands my critique. Here I showed that it is actually the conceptual theorist, supposedly engaged in a priori reflection, who needs empirical evidence to vindicate her approach.

1 comment:

  1. It's funny how the positivists are now the platonists! The way the basics of jurisprudence are taught, it's supposed to be the natural lawyers who have some idea of "true law" existing out there. But these days, it's the positivists who have this kind of essentialist ontology.