The “Missing Jurisprudence”
posted by Michelle Dempsey
It is a great honor to participate in this online symposium, discussing Robin West’s Normative Jurisprudence: An Introduction. Last month, I was delighted to participate in an event at Georgetown University Law Center, discussing this important and groundbreaking work.
At that event, I was asked to summarize and comment upon Professor West’s first chapter, “Revitalizing Natural Law.” (Mark Murphy, whose comments were posted yesterday, presented on the same panel and offered an illuminating commentary on Chapter 1 and natural law methodology generally.)
In this first of two posts, based on my comments at the Georgetown event, I will offer a partial summary of Chapter 1 of the book and comment on the aims of Professor West’s project.
Professor West’s principal thesis in Chapter 1 is that American liberal and progressive jurisprudence has, to its own detriment, failed to take up the questions that ground the natural law tradition: namely, “What is the common good that law ought to promote?” and “How can law and legal systems best serve the common good?” This failure has created what Professor West calls a “missing jurisprudence”: that is, a liberal or progressive jurisprudence that takes natural law concerns seriously.
So… what would be the practical effect of infusing a natural law inquiry into a progressive jurisprudence? How would the focus of this heretofore “missing jurisprudence” differ from that of the progressive jurisprudence we currently have? What, in other words, is the pay-off for developing a progressive natural law jurisprudence?
According to Professor West, the pay-off is six-fold:
First, we might expect that a progressive natural law jurisprudence would focus far more on the moral obligations of legislators to create law to promote the common good, and to focus comparatively less on the obligations of judges in adjudicating existing law. In this sense, the missing jurisprudence would provide an impetus to the creation of new laws, where such laws may be needed, in order to promote the common good (for example, by legislating to protect the vulnerable, impoverished, those in need of care, etc).
On this point, I am in full agreement with Professor West. By friendly amendment, however, I would add that a progressive natural law jurisprudence might also ground arguments regarding the proper exercise of discretion in the executive branch – such as prosecutorial or police decision making – where no posited law provides guidance. (I hope to have made some movement in this direction in my book, Prosecuting Domestic Violence: A Philosophical Analysis (OUP 2009), by grounding my arguments in the values that prosecutors can realize through prosecutorial pursuit action, and the disvalue that might be realized when prosecutors fail to pursue cases.)
Second, insofar as this “missing jurisprudence” would provide a progressive account of basic human goods, it could ground a more robust moral and political critique of the US Constitution – a critique that would be grounded in an understanding of the moral purpose or point of law, which the Constitution, as posited law, should serve. In this way, the new jurisprudence that Professor West envisions would alleviate the need for our current Constitution to do “double duty” – both “serving as the source of justification of the laws we have, and also largely, the source of critique of the laws we have.”
Again, I find myself in full agreement. Having spent 7 years studying and teaching law in the UK – where there is, of course, a “small-c” constitution (as any legal system must have), yet no “big-C” Constitution (such as we have in the US, in the form of the document that replaced the Articles of Confederation in 1789), I find the American veneration of the US Constitution peculiar. In particular, I find it troubling that the question of whether a law is good or bad is so often debated at the level of whether the law is Constitutional – as if the answer to that question fully resolves the matter of the law’s moral merits. The Constitution, itself a posited legal norm, might be morally justified – but then again, it might not be morally justified. Professor West is thus correct to note that we ought not regard the US Constitution (a humanly posited and thus potentially morally fallible law) as the sole, or even primary, source of critique of the other posited legal norms.
I will consider the third and fourth points together and comment jointly below. According to Professor West, the third pay-off we might expect to realize from developing a progressive natural law jurisprudence is that it would provide us with a rich moral vocabulary of basic human goods. She argues that “this way of talking about the legislative product” would provide a welcome and appealing alternative to the vapid discourse offered by public choice theory and economic analysis of law. By drawing on considerations grounded in an account of the basic human goods, the “missing jurisprudence” would thus invite consideration of whether posited law serves the genuine interests of the governed, not merely their stated or revealed preferences. Fourth, insofar as this “missing” jurisprudence would be informed by a description of human nature, human well-being, and ultimately, human flourishing, it would “provide a context within which liberal and progressive lawyers could challenge prevailing (incorrect) views regarding our true nature, well-being and flourishing.” Rather than remaining silent when confronted with the liberal myth of the independent, autonomous individual, who prizes liberty above all else and perceives the bonds of community and dependency as burdensome, the new progressive natural law jurisprudence Professor West envisions will enable us to recognize more clearly that this view of human nature is incorrect – or at least, profoundly incomplete – and it will go some way toward providing the resources needed to offer an alternative, more complete account of human nature, well-being and flourishing.
On a more cautionary note, I would add that the sort of jurisprudence Professor West envisions, one that “invite[s] a richer conception of the meaning of the good than that provided by our contemporary celebrants of the satiation of desire,” would also provide an alternative to our current reliance on liberal platitudes such as rights, autonomy, equality, etc. If Professor West’s project succeeds, we would be better positioned to draw upon a morally rich conception of the good in articulating what the law should be, rather than merely falling back on such platitudes. But, of course, as Deborah Helllman helpfully reminded us in yesterday’s post, there is not merely one conception of the good to which everyone will agree. There is instead a deep pluralism regarding conceptions of the good in our society – people hold vastly different views about what constitutes human flourishing and what sort of laws should exist to promote that flourishing. If our task is that of the philosopher – unpacking and clarifying what is genuinely at stake when we make arguments about what the law should be – then Professor West is right to encourage us to develop a morally rich account of human goods and to employ that account in articulating our claims. However, if our task is that of a political actor, a citizen in a liberal polity – then perhaps we should seek to maintain the plateaus of agreement developed through liberal discourse in terms of rights, autonomy, and equality. In the political realm, these thin principles of liberalism may serve us far better than rich conceptions of the good. Whether they are best understood as liberal platitudes or thin liberal principles, they have served us fairly well in establishing overlapping consensus and providing for at least minimal protections of basic human goods. Thus, my cautionary plea is simply that we not underestimate the risk we take as political actors when we embrace a rich moral vocabulary of basic human goods, and that we realize doing so may undermine our ability to make effective use of thin liberal principles such as rights, autonomy and equality.
Fifth, Professor West anticipates that this new progressive natural law jurisprudence will positively impact legal education – transforming it from what she characterizes as a “sort of basic training in the art of judicial opinion writing” to an education that is far more concerned with teaching students engage questions of the common good in order to help legislators write “decent, sophisticated, and morally ambitious laws.”
On this fifth point, I agree – but simply wish to note that pedagogical differences may exist across and/or within law school faculties. For example, at Villanova University School of Law, each student in this year’s 1L class will undertake a legislative drafting exercise in Criminal Law, in connection with the study of rape and sexual assault, with the aim of learning how to write laws that are not only morally ambitious, but administratively feasible and acceptable to contemporary legislatures. (The exercise is based on one created and compiled by Professors Ron Wright and Sara Beale, as adapted by my colleague, Professor Steven Chanenson.) Moreover, in Villanova Law’s Jurisprudence and Feminist Legal Theory courses, students read John Finnis’ account of basic human goods, Martha Nussbaum’s account of human capabilities, and Sabine Alkire’s comprehensive summary of related accounts – and give in-class presentations articulating and defending their own understandings of the basic human goods/capabilities/flourishing. (See comments below for links to some recent presentations.) Thereafter, the students are pressed to articulate their evaluative and normative arguments in terms of these accounts, rather than relying on claims of rights or equality. The point of this exercise is to get the students to avoid the platitudes of liberal neutrality – and to recognize that notions such as rights and equality are ultimately justified in terms of the values/goods that ground them. In driving this point home to my students, I find it helpful to recall Joseph Raz’s observation regarding equality:
“We only have reason to care about inequalities in the distribution of goods and ills: that is, of what is of value or disvalue for independent reasons. There is no reason to care about inequalities in the distribution of grains of sand, unless there is some other reason to wish to have or to avoid sand.” (J. Raz, The Morality of Freedom (OUP 1986) p. 235)
Finally, Professor West argues that this new, heretofore “missing” jurisprudence would, as the chapter titles suggests, “revitalize” jurisprudence – by putting human beings at the center of the jurisprudential inquiry. By focusing on the basic goods of human beings, and the common good of human communities, this new jurisprudence will reveal the folly of our current understandings of the goods that law should serve, an understanding that too often perceives the human being as akin to a utility maximizing corporate person (“human beings are not fallen corporate angels,” as Professor West puts it).
On this final point, I once again find myself in full agreement with Professor West. We should indeed centralize the person-as-human being in our jurisprudential inquiries, so that the question of to what law should be will be answered by reference to what law should be for human beings. For, human beings are not merely the law’s subjects, creators, and users – human beings are law’s proper point.
So, there we have it: the six-fold pay-off to developing the sort of jurisprudence Professor West has in mind. Given the benefits that might be realized by developing a progressive natural law jurisprudence, one might wonder why we haven’t seen greater movement in this direction already. Why have liberal and progressive members of the American legal academy failed to take up the questions of the natural law tradition and make them central to their jurisprudential projects?
My next post will address the question of why this “missing jurisprudence” has remained MIA for so long…