The Dynamics of Law and Morality

A Pluralist Account of Legal Interactionism

Wibren van der Burg

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138246126
• eBook ISBN: 9781317035046
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book investigates the dynamic intertwinement of law and morality, with a focus on new and developing fields of law. Taking as its starting point the debates and mutual misunderstandings between proponents of different philosophical traditions, it argues that this theoretical pluralism is better explained once law is accepted as an essentially ambiguous concept. Continuing on, the book develops a robust theory of law that increases our grasp on global legal pluralism and the dynamics of law. This theory of legal interactionism, inspired by the work of Lon Fuller and Philip Selznick, also helps us to understand apparent anomalies of modern law, such as international law, the law of the European Convention on Human Rights and horizontal interactive legislation. In an ecumenical approach, legal interactionism does justice to the valuable core of truth in natural law and legal positivism. Shedding new light on familiar debates between authors such as Fuller, Hart and Dworkin, this book is of value to academics and students interested in legal theory, jurisprudence, legal sociology and moral philosophy.

PART I
UNDERSTANDING THEORETICAL PLURALISM

Chapter 1

Two Basic Models of Law and Morality

Theoretical Pluralism

There is hardly any other discipline where the central concept is as controversial as that of law. The broad variety of definitions is just an illustration, as is the fact that many authors have resisted presenting a strict definition and prefer a more general approach of conceptual analysis. Some authors have described law as a practice or an activity: ‘the enterprise of subjecting human conduct to the governance of rules’ (Fuller); an argumentative practice and an interpretive enterprise (Dworkin); a practice oriented towards the ideal of legality (Selznick).¹ Others have described it as a hierarchical or institutionalized system of norms (Kelsen and Raz), or as the union of primary and secondary rules (Hart).² And it is not only legal theorists that have trouble defining the law. If we ask ordinary citizens, some refer to the collection of rules found in statutes, others to law-enforcement institutions like courts and the police. Some may also make reference to ideals of justice.

Even for legal theorists, it is difficult to fully understand this controversy. What precisely is at stake in dividing the different camps? Many suggestions have been made to structure the debate in terms of one central issue that divides the parties, but none of these suggestions have succeeded in obtaining full acceptance from all the battling parties. One reason may be that, on close inspection, there is not just one divide, but a plurality of them. They partly overlap in the sense that most positivists tend to be in one camp on all of the issues and the nonpositivists in the other. I suggest that we discern at least four issues that keep the parties divided.

The first issue that divides the parties is whether or not law can and should be described in morally neutral terms (or whether it can be described as separate from morality). The interpretations regarding what this means vary greatly. Some natural lawyers argue that law has an essential or conceptual connection with morality, others that in order to qualify as law, it must meet certain substantive or procedural standards that have moral implications.³ Interpretivists have a different angle: they argue that it is impossible to separate legal and moral arguments in legal discourse.⁴ Positivists similarly have offered scores of formulations regarding what the difference precisely consists of.⁵ I will leave this discussion here, and will elaborate upon it more fully in Chapter 4.

The second issue of contention is whether some reference to legal ideals or purposes is to be included. For Gustav Radbruch, law is oriented toward justice as it is ‘the reality the meaning of which is to serve the legal value, the idea of law [i.e. justice]’.⁶ For Philip Selznick, it is the practice oriented towards the ideal of legality.⁷ And Lon Fuller characterizes law as a purposive enterprise.⁸ Most positivist authors, however, differ from Radbruch (who for that reason sits, even in his early positivist period, uneasy in the positivist camp) in emphatically excluding any reference to ideals.

A third dividing issue is whether law is always connected, directly or indirectly, to the authority of the state. Most positivists have held that it is and, thus, have found it difficult to recognize international law in its emerging stages as law. Moreover, the presumed connection of law with the state has blocked legal positivists from accepting legal pluralism. Many nonpositivists have suggested, as do Lon Fuller and Philip Selznick, that we should leave behind the idea that all law must be connected to the state. Consequently, they find legal phenomena emerging in schools, factories and even among a group of friends, and argue that our society consists of a plurality of legal orders.

The fourth and most fundamental issue of contention concerns a difference in categories. Most legal authors, and especially legal positivists, focus on law as a doctrine, as a set of rules and principles, or as a collection of texts. Law is seen as an object, either in the physical sense of texts, or as a mental object, a thought construction. Most sociological authors as well as most nonpositivists focus on law as a practice or institution, as an interaction, or even as a dimension of interaction. Again, this distinction overlaps largely with the usual distinction between positivists and non-positivists, but not completely. The most influential legal positivist, H.L.A. Hart, emphatically claims to defend a practice theory of law (I will show later that this is only true in part). And many classical natural lawyers discuss natural law as a doctrine of timeless precepts.

There are some additional controversies that complicate the scene, for example, regarding whether law is connected with sanctions or whether its focus is on external actions rather than on intentions. I will leave these issues aside here, however, as they are not relevant to the central argument of this book – even though they may be important in other contexts. The camps on the four issues overlap in part, though not completely. This is one of the reasons why it has been so difficult to understand the nature of the controversy and, for example, to classify an author like Radbruch (even in the period when he self-identified as a positivist) as he sometimes belongs to the positivist camp, and sometimes defends a position that nearly all other positivists eschew.

We may conclude that the concept of law is irreparably controversial. Of course, we could have the ambition to unravel the Gordian knot and come up with the conclusive distinction that everyone could accept. However, it is highly implausible that we would succeed where all others have failed. The only solution to the Gordian knot seems to be not to untie it, but to cut it through with some more or less arbitrary exercise of power. In fact, this is what almost all authors have done, even if most did not acknowledge it explicitly: they suggested or stipulated a definition of law that was incomplete or in other ways unsatisfactory, but that would work for their purposes.

It may be that in the end such an arbitrary exercise of power is the best we can come up with. However, I will choose a different strategy: to accept the fact of theoretical pluralism, and try to understand it. How can it be that the controversy (or better yet, the four controversies) seems intractable? There must be some more fundamental explanation. It is this explanation that I am after in this and the next chapter.

Two Basic Models of Law

The explanation for the existence of intractable controversies in legal philosophy is to be found in the fact that phenomena such as law can be modelled in at least two partly incompatible ways. Each model can offer good insights to some aspects of law, but cannot do justice to some other aspects. Thus, we need both models to fully understand law. However, as I shall argue in this chapter and the next one, the two cannot be combined into one coherent and complete model.

Before elaborating upon the two basic models of law, it may be helpful to illustrate the idea behind the models with an example from a completely different field, that of physics. In school most of us learned that an electron may be regarded as a tiny particle and as a wave. Yet, it cannot be regarded as both at the same time because a combined theory results in contradictions. Each of the models allows us to understand some aspects of the electron that the other model cannot explain. It is possible to translate ideas from the wave model into the particle model and vice versa, but there is usually some loss of meaning and elegance. Every attempt to try to do with only one model leads to partial and incomplete theories. Thus, to obtain a full theoretical understanding of electrons, we must alternate between the two models.

This is also the idea behind the two models of law. Each of them focuses on certain characteristics of law to which the other model is blind or has less-than-perfect vision. The first model focuses on statutes and judicial rulings, and on law systematized as a doctrinal body of rules and principles. The second model focuses on the practices by which law is constructed, changed and applied. Each model can partly incorporate the insights of the other model, but not all: they are not fully compatible; nor are their respective insights translatable into the other model without a loss of meaning and elegance. The practice model should not be seen as replacing the product model completely, but should instead be seen as a second, alternative model that will enable us to study dimensions of law that remain hidden in the product model. Therefore, we should alternate between the models to develop a full understanding of law.

Various authors have suggested similar distinctions between different types of knowledge. Gilbert Ryle has made a well-known distinction between knowing that and knowing how.⁹ Knowing that involves theoretical knowledge of an activity, usually in the form of propositions formulating rules or criteria. Knowing how is practical knowledge of how a certain task must be executed. Ryle argues that it is a mistake to believe that theoretical knowledge is the basis for practical knowledge.¹⁰ It is rather the other way round: ‘Efficient practice precedes the theory of it’.¹¹ Knowing how to execute a certain task does not imply that someone can explain in theoretical terms how to do it or that she simply applies theoretical knowledge. Someone may perfectly know her way around a city but may be unable to draw a correct map or even to understand a map, let alone follow it.

A similar point has been made by James C. Scott. He stresses the importance of mētis: ‘the knowledge that can come only from practical experience’.¹² He confronts this with formal epistemic knowledge, especially in the form of simplifications of social reality that involve written documentary, static, aggregate, and standardized facts.¹³ State policies based on such ‘maps’ of social reality pretend to be more rational but usually fail because they cannot do justice to the actual complexity of natural and social processes.¹⁴ Practical knowledge is often local and implicit rather than general and explicit. A good example is professional knowledge. An expression like ‘the clinical eye’ refers to this partly intuitive, experience-based type of knowledge. This professional wisdom is not easy to grasp in general theoretical insights, because it is so particularistic and contextual.¹⁵

Both Ryle and Scott present a rich analysis of the distinction between practical and theoretical knowledge, combining many themes. My suggestion is that the most fundamental difference between these types of knowledge may be understood as reflecting two partly incompatible models of dynamic phenomena, a practice model and a product model.

Law as a Product

The model of law as a product is probably the most familiar among lawyers and the public alike. A question concerning the law of intellectual property will usually be answered with a reference to statutes and judgments by courts, or with the formulation of some rules and principles. In most law schools in the Civil Law tradition, this certainly is the predominant model: students have to learn law from studying the substance of statutes and precedent. Most textbooks on subfields of law present legal doctrine on a subject as a coherent body of rules and principles. And despite repeated criticism in the US literature since Oliver Wendell Holmes, repeated by legal realists and sociological jurisprudence, most of the work of legal scholars is doctrinal study.¹⁶ Law is thus either a collection of texts or a coherent body of norms.¹⁷ Traditionally, this model has been referred to by phrases like ‘positive law’ or ‘law in the books’.¹⁸

This model may be called ‘law as a product’.¹⁹ Law as a collection of texts is the product of legislative and judicial activities. Law as a coherent body of norms can also be seen as a product. Legal doctrine is the product of constructive activity by scholars and legal officials, not in the ‘real’ world of texts but in the world of thought. Legal doctrine does not ‘exist’ as some kind of brooding omnipresence in the sky, of course. Nor does it exist in texts. It is merely a construction: a product of our minds.²⁰

The latter remark is not entirely self-evident. There is a tendency to reify law as if it had an existence of its own and, as a result, an objective status. We use phrases such as ‘The law states’, which suggest an unequivocal, authoritative meaning.²¹ We should always be sensitive to the fact that it rather reflects the subjective voices of its drafters and interpreters. Law as a doctrine is not something ‘out there’, but is the product of human interaction, and is inherently controversial in nature. Reification conceals this controversial nature and the ambiguity of legal concepts and, thus, gives legal doctrine an unwarranted objective status.²²

In philosophy of law, this model can be found in the work of positivist authors, especially those in the continental legal tradition, in which the great codification projects tried to formulate legal doctrine in statutes and codes as completely, authoritatively and unambiguously as possible. (Hans Kelsen is a good example, whereas in the English tradition Jeremy Bentham, with his advocacy of codification, stands out.) However, it is even more prominent in the way many legal textbooks present their materials, as one glimpse in the law section of a bookshop would demonstrate.

Law as a Practice

The model of law as a practice starts with the basic role of law in society. When we buy bread or when we teach at a university, law makes sense of what we do and sometimes even creates the possibilities for us to do what we do. The interaction between the baker and myself when I buy bread can only be fully understood by someone who understands the legal meaning of this interaction; moreover, the transaction can only take place because such an interaction has a legal meaning. In modern societies, law permeates social reality, and almost every action has a legal dimension. In some activities, for example, trading, the legal aspect is rather obvious, if only because these activities are based on legal concepts such as property and sale. In other activities, for example, raising children, the legal aspect is largely implicit or hidden, but still there is a legal dimension – for example, because children have certain rights and obligations towards their parents.

The legal, in this sense, is not some distinct element that can be separated from social reality.²³ It is not a specific characteristic or quality of actions – not even a supervenient quality. Rather, it is a way of looking at reality which guides both our actions and our constructive interpretation of those actions; sometimes the legal framework is even constituted by our actions. The term ‘aspect’ is helpful here: the aspect cannot be isolated from the whole; it merely offers one way of seeing and understanding the whole.²⁴ We can...

Table of contents

• Cover
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• Introduction
• PART I UNDERSTANDING THEORETICAL PLURALISM
• PART II LEGAL INTERACTIONISM
• References
• Index