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Tagged: Symposium (Normative Jurisprudence)

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This is Water

It is both an honor and a great pleasure to participate in this discussion of Robin West’s brilliant book, NORMATIVE JURISPRUDENCE. There are so many ideas to laud in this work, many of which have been ably raised by other commentators within this conversation. But reflecting upon this work, I have been particularly struck (as I first was as a student) by Robin’s extraordinary capacity to illuminate aspects of our legal landscape that, while foundational and ubiquitous, remain invisible. Robin’s chalk-outline of a missing progressive normative jurisprudence calls to mind a parable told by the too-soon departed David Foster Wallace. In a commencement address at Kenyon College, Wallace told the story of two young fish out for a swim who happen upon an older fish. The older fish says: “Good morning boys. How’s the water?” After the older fish passes by them, one of the young fish turns to the other and says: “What the hell is water?”

In NORMATIVE JURISPRUDENCE, Robin offers us an opportunity to rethink the “water” of our analytic practices. Most significantly, she presents the possibility of a jurisprudence in which normative argument constitutes the “water” of our analytical practice. Normative argument, she argues, should occupy a central rather than marginalized role in our jurisprudence. Moreover, she observes that progressives’ absence from the normative table has relegated our jurisprudential conversations to an unduly narrow and adjudicatorally-obsessed preoccupation with explicating the law that we already have. This positivist analytic jurisprudence (or, in Robin’s helpful Benthamite parlance, “expository” jurisprudence) has consciously and perhaps even aggressively eschewed normative argument to the peril of the project of legal reform and the promotion of social justice. Robin’s point is not that the project of exposition should be set aside in favor of a project of developing normative/critical (or, again in Robin’s Bethamite vocabulary, “censorial”) jurisprudence, but rather that room should be made in the center stage of our jurisprudential tradition for normative/critical/censorial jurisprudence.

Yet within Robin’s rendering lies room for the hypothesis that the agnosticism that we take as a matter of course to be a basic precept of analytic jurisprudence is itself a tacit manifestation of a conception (or, more accurately, varying conceptions) of the good. Robin’s argument raises potential doubts about the capacity of our conventional analytic jurisprudence to maintain agnosticism about conceptions of the good. In this rendering, competing conceptions of the good are the “water” that our various jurisprudential projects are already immersed in. While we may have become acculturated to understanding and explaining the law in a way that is formally divorced from conceptions of the good (e.g. whether wise or not, our tort law is committed to a principle of corrective justice), is it nonetheless possible that we have, all the while, been swimming in it?

Of course this is not Robin’s principal point. Whether or not our existing analytic jurisprudence is capable of the moral agnosticism it formally espouses, Robin would have us draw our foundational moral conceptions (whatever their source or origin) out into the light where they could serve more prospective and ambitious (rather than merely descriptive and thereby modestly – in the service of continuity to past practice – prescriptive) ends. Nonetheless, the question of whether our analytic jurisprudential practices necessarily depend upon a conception (or conceptions) of the good seems to me to be an important one in light of Robin’s thesis. Not only does the question seem to be intimately tied to her overall picture of progressives’ commitment to neutrality that figures centrally in her argument, but if this hypothesis bears out, it strikes me that it has potential to significantly undermine potential pragmatic objections to Robin’s thesis. It is, therefore, a question that I think merits some attention. Read More

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Take that Constitution and…

…forget about it.  I understand that some folks must continue to fight Constitutional battles, inside and outside the courtroom, even if just to try to hold the line against Supreme Court precedents and federal legislation that encroach on the most basic interests and freedoms people need. Note that I can mention these without reference to rights.  Rights – another term that legal academics of all stripes tend to obsess about to the point of distraction from considering the very goods that recognized rights foster and protect.  The goods are not the rights.  Rights shelter goods and interests.  If they are the only form of cover your adversaries will acknowledge, then you better pitch a rights tent.  If representing the good or interest as covered by a right does not help further the good or interest, then don’t use the representation.  Rights and “rights” are neither objectively problematic nor objectively wonderful.  What’s important is which interests and goods we decide to foster collectively,  how we decide this, and whether law is a suitable social method for fostering any given worthwhile interest or good.  If law is an appropriate mechanism for the task, then there are interesting empirical questions about whether the law should be strongly interventionist, requiring very specific conduct to facilitate and foster these goods or interests, or whether it should be more subtle, creating background institutions and norms which increase the chance that these goods and interests will flourish.

Now, consider areas of law that start not from rights but from duties, areas like tort (publicly created duties, originating in common law or in legislation) or contracts (privately created duties, originating at the nexus of individual agreements and legal endorsement of certains types of agreement but not others – some agreements are endorsed or disqualified by courts, some by legislatures).  Not coincidentally, torts, contract, and restitution have historically been grouped together as the law of obligations, in both Anglo and Continental traditions.  And not coincidentally, these bodies of law presuppose interconnectedness and relationships. The foundational or mythic state of nature that animates contracts, torts, and restitution is one that assumes that people are always and inevitably embarking on relationships, sometimes on purpose sometimes accidentally.  But whether they mean to get involved with each other or not, whether they set out to affect other people or not, people connect.  Connection is basic.  Then the question becomes, which sort of connections engender which sorts of obligations?

Obviously, one can argue for thinner and thicker versions of legal obligation and sometimes such arguments rely on philosophical theories like liberalism (neo or otherwise) or conservativism (neo or otherwise).  But it is interesting to note that reflective legal scholars and lawyers engaged (knowingly or not) in normative jurisprudence regarding the law of obligations actually tend not to invoke the usual political philosophies that undergird and drive so much of the discourse about the Constitution.  A hypothesis about what why that’s so: if our starting point for thinking about and creating law is connection – the inevitable ties that will arise among social creatures – our starting point is already complicated and textured in ways that cry out for more particularistic arguments than those generated by wholesale political theories of any stripe.  Political theories that start from the individual rather than the connectedness of individuals can be more general and less nuanced because it is easier to oversimplify the individual than it is to oversimplify connection.  Likewise, areas of legal discourse and practice that answer to broad political theories tend to obscure particularities that matter tremendously in the course of actual lived experiences.

Mary Anne Franks’s discussion of creepshots and outing anonymous bloggers reveals the significance of starting from assumptions of connection rather than assumptions of individuality.  In our culture, the rhetoric of free speech and consent is premised on a particular Constitutional background.  The minute somebody invokes the phrase “free speech” they will be heard as invoking the First Amendment and the entire kit and caboodle of the Constitution.  This then spills over to and colors how “consent” and “privacy” get discussed – they are understood as subordinate matters, less important than and bounded by the explicitly Constitutionally acknowledged good of free speech.  It is ironic that these are the terms of the debate about an episode in an environment so often characterized as thoroughgoingly social – the web and websites where people go to interact.  If we all forgot about the Constitution, very different first questions might come to mind when thinking about creepshots. Namely, who is affected by the site and how?  What sort of connections does it foster or stunt?  Are these connections we collectively should concern ourselves with? Should we use law to structure the connections that inevitably arise from activity on the web?  If so, what do the parties (intended or unintended)  in  these connections owe to one another, morally, ethically, and legally?

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West’s Normative Jurisprudence and Law School Reform

I’d also like to extend my gratitude to Robin West for writing such an important book and to Danielle Citron and Concurring Opinions for hosting this terrific online symposium.  As a former student of Robin’s and now law professor myself, I have deeply appreciated her work and mentorship, and am delighted to take part in this dialogue dedicated to her latest project.

In Normative Jurisprudence, Robin makes a compelling argument for a renewed scholarly legal discourse that breaks free of the confines of what law is and has been, and takes up the essential question of what law ought to be in light of what justice requires.  We should engage in “deep criticism of law and legalism and legal ideals” and not simply study, or work within, the existing legal framework and system, which for legal scholars has been court-centered and therefore constrained by past judicial pronouncements.  She urges the legal academy to move beyond this past-dependent focus and instead take on the more forward-looking and creative task of exploring legislative and regulatory avenues to advance what we identify as the common good.  Speaking expressively yet directly, she encourages us to give attention and voice to this much-needed type of examination.  In one such passage, she asserts:

“. . . The absence of either philosophical debate over the nature of the good, or its implications for the value of legislative initiatives or regulatory regimes governing various areas of social life, in law schools and in legal scholarship generally, is striking.  Law schools study court decisions, largely on the basis of other court decisions, whereas other branches of the university study both legislative initiatives and competing conceptions of the good they ought to further.  This is an odd division of labor.  There is no reason other than inertia that law schools should not be central to debates over the value of proposed or existing legislation, as well as central to debates over the meaning and value of competing understandings of the good against which those proposals might be judged.  Law scholars, presumably, would have much to contribute: lawyers and legal scholars know a thing or two about law, about what it does well, where it fails, and why.  That knowledge of law and its value is oddly cabined, unengaged with debates over the possibilities of law’s contribution toward the quality of public life.”

As I see it, Robin’s challenge to law schools is particularly timely in light of the curricular revisions many schools are making in response to the changing legal economy.  To best equip students to be lawyers and problem-solvers in the 21st century, it is becoming increasingly clear that law schools need to prepare their students to do more than just adjudicative analysis.  Students will need a wider understanding of law and its uses and tools in various realms, and this training, I believe, can and should begin in the classroom.  As law schools’ raison d’être evolves, so too should our legal commitments and methods, and this rethinking should likewise extend to our scholarship.

We as legal academics, then, can help shed light on matters in need of sociolegal reform, whether or not we see ourselves as directly participating in the movement.  Although Brian Bix understandably wonders whether legal academics have the attributes and skills to best advance social justice causes, it seems to me that law professors, even if not especially activist-inclined, through their research and teaching help provide the building blocks for those who may be more so.  Legal scholars whose expertise tends to focus on deconstructing theories and unpacking doctrine certainly contribute by helping to light the spark for others who then reconstruct them toward change.  It is engagement in this kind of conversation, much like the one we are having in this online symposium, that plants the seeds for further thought and suggests different paths for reform.  The enterprise is ultimately a collective rather than solo one, but it builds on the efforts of each of us.

 

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Justice, Law, and Fellowship: From Coordination to Collaboration

“True peace is not the absence of tension: it is the presence of justice and brotherhood.” — Martin Luther King, Jr. (1955, 1958, 1961)

At the Martin Luther King Jr. Memorial, Washington DC

Dr. King spoke these words or similar ones on a number of occasions, usually when explaining the relationship between love, law, and civil disobedience. I invoke them here because of their affinity with the idea that law that successfully promotes the common good will not yield simply the absence of anarchy but the presence of fellowship.

In the first major chapter of Normative Jurisprudence, “Revitalizing Natural Law”, Robin West argues for “a reengagement of liberal and progressive lawyers with … the ethical inquiry into the nature of the common good furthered by just law.” This is a terrific project. But it is a more complicated project than either a casual reader or a sophisticated scholar might notice. There are at least two major kinds of complexity involved. One, to which West devotes some attention in the chapter, involves how to specify human good, common or individual. The other, which receives less attention, at least at this phase of the book, involves figuring out what is distinctively legal about a project to promote the common good. In this post, a bit about this second area of complexity. This is not to say that West herself does not appreciate the complexity of and need for sorting out the role of law in a quest for the common good.

West persuasively explains that just because the project of promoting the common good might also be a political one or an overall ethical one, that does not mean it is not also a legal one, a distinctively legal one, or one in which law plays a distinctive role. Throughout “Revitalizing Natural Law”, West emphasizes that achieving the common good, understood as arising from the demands of individual good, necessitates coordinated social action, of the sort law is uniquely positioned to bring about.

Individuals going it alone will not get very far in achieving their own good, notes West. A group of uncoordinated individuals who realize this problem need state-sponsored coordination, in the form of law, to ensure that each of them do better, which means that all of them will do better. Fair enough, as far as it goes. But there is a lot more to coordination, and to coordination implemented by law, than meets the eye.

“Coordination” can be understand more or less thickly. A law dictating whether to drive on the left or the right coordinates thinly. It solves a problem whose solution does not impact the good in question: keeping traffic flowing. The content of the law does not matter, what matters is having one. The activities and instrumentalities involved are understood, practically speaking, largely similarly by all the participants.

Most of the time, though, there is a thicker connection between laws governing collective action or social activity and the content of the laws themselves. Laws against polluting the environment presuppose or stipulate agreement on foundational matters, including what constitutes pollution and how to demarcate the polluters from the environment. Laws regulating research on human subjects presuppose or stipulate agreement on what is research, who is human, and what it means to be a subject of another’s study.

To approach jurisprudence as West urges means noticing and taking quite seriously the role law and legal institutions – all of them, not just legislatures, but courts and agencies and review boards and prosecutors and juries and so on – play in coordinating both the understanding and the lived actuality of the activities and instruments law references. The good is rich stuff, and to get us to it, law must make it possible for us to proceed from strategic interaction in a coordinated setting (e.g. driving on the highway) to substantive cooperation (e.g. creating a functional and legitimate banking system). That sort of cooperation rests on shared background understandings of matters basic, diverse, and particularistic. To enable such cooperation law must not only invite and permit, but also foster, collaboration on a worldview sufficiently shared so that law has a shared meaning for law makers, law appliers, law enforcers, and law abiders (not that these four actors are always distinct and separate).

The flight from ethical normativity that West identifies in Normative Jurisprudence is part of a larger flight from normativity in general – including the normativity of meaning. How much agreement on meaning do we need in order to achieve just law that furthers the common good? What sort of legal actors and institutions do we need to get that agreement? In future posts during this celebration of Normative Jurisprudence, I will continue to examine these questions. I take inquiry into them to be part of the project West urges. I also expect that there will be sharp disagreement among liberal and progressive scholars about how much shared meaning we need and what we are willing to do get it.