A New Beginning

Legal theory needs a new beginning.  Over the past few years, I have watched, largely as an observer, as the information technology revolution has come to law. Sure, its been coming for a long time, but over the past few years the changes have become unavoidably obvious, even to the most dower disbelievers. It’s here now, and like the titanic waves of the ocean, it is reshaping the landscape of the law and its role in society.  The waves of change are harbingers of the future of law, which promises greater social justice by aiding in redistribution of power and wealth through access to justice and new economic alliances. But, it also holds the potential for unbalancing the structures of democracy, encouraging faction, and distorting democratic discourse. The changes occuring now undermine traditional communities, even as they encourage new forms of sociality that scarcely resemble the familiar and seem to limit the day-to-day quotidian acts of courtesy and kindness that have long been viewed as building blocks of civil society.

Tracking changes like these and commenting on their meaning seems to be the natural work of legal philosophers. Understanding the philosophical implications of law in an information society entails investigation into the informational nature of law as it has traditionally existed, and speculative consideration of the possibilities for its future.  Even more significant, perhaps, is the need for competent normative guidance. Philosophical ethics has much to offer in the analysis of the present moment in legal philosophy.  Beyond the positivist description of law, a new generation of legal philosophers are recovering normative jurisprudence, freed from natural law theories rooted in naive medieval metaphysical realism, to consider anew the foundations of morality that are capable of guiding law and communities into the future. (For example, see Robin West, Normative Jurisprudence: An Introduction (2011)).

The current state of affairs in legal philosophy has left it ill-equipped to take on these tasks, despite the obvious need.  Two features of Anglophone legal philosophy contribute to this impasse. The first is legal positivism, which has two interelated foundational claims made by Thomas Hobbes and David Hume, respectively: that law is what ever the legitimate authority has promulgated; and that a normative claim cannot be derived from factual propositions. Ultimately, both claims are captured in the claim that law is determined by social facts. Although this basic claim of positivism has taken many forms, the influence of the philosophers that Richard Rorty identified with the “linguistic turn” (notably Russell, Moore, and Wittgenstein in the UK, and Quine in the US), left a legacy that today is recognizable in the lineage of John L. Austin, HLA Hart (and even the natural law philosopher, John Finnis), which marks the mainstream of Anglophone legal philosophy.  That mainstream is defined by elements of coherentist epistemology and  conceptual analysis that have earned this label of “analytic” jurisprudence for the Anglophone tradition. Its current shape has been defined by philosophers like Brian Leiter, Dennis Patterson, and Brian Bix,  who collectively have done much to set the agenda of American legal theory. Of course, sociologists, like Brian Tamanaha, have contributed to legal philosophy as well by challenging the philosophers’ methods and conclusion, but if there is a mainstream of American jurisprudence today, it is defined more by the analytic philosophy of law than by any other approach. (On this view, for example, Hans Kelsen is not mainstream because, although agrees with legal positivism, he derives his theory more from Kantian sources than do the Anglophone theories.)

Despite its broad acceptance, analytic jurisprudence no longer meets the needs of contemporary legal theories. The epistemological concerns of the linguistic turn are increasingly irrelevant in the contemporary era. Neither the naturalistic turn described by Quine and applied by Leiter nor the “post-modern” Wittgensteinianism defended by Patterson, are capable of explaining the informational nature of law or providing normative guidance for the evolving informational environment in which law is both operative agent and outcome.  This means that the legal philosophers have left the field to sociologists, who are making gains, particularly in empirical legal research. As impressive as these are, sociology alone cannot displace philosophy, nor can it “position” philosophical discourse as a second-order analysis. I will have much more to say about this later, but for now, let me rest on an obvious observation that philosophy deals with foundational concepts and presuppositions, including those of the social sciences. A part of its work involves holding the sciences to the limits of those foundations. The information revolution rests on foundations that are new for law. A part of the work of the legal philosopher is to act as an engineer who specializes in understanding the new concepts and is capable of creating new conceptualizations and new possiblities for understanding.  New philosophical concepts  have enormous significance for legal theorizing. The way ahead for legal philosophy, I believe, lies in the philosophy of information, which I understand to be the attempt to understand the significance of the information revolution for traditional philosophical questions.

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Natural Law Redoux

The Gorsuch nomination provides a good opportunity to write about something that’s been on my mind for a while, the so-called “new natural law.”  I know that some of the defenders of the Finnis project dislike that name because, like Finnis, they believe that there is nothing new about it. The Natural Law of Aquinas is not that different from the Natural Law of Finnis, they claim, because they both are practical reason that proceeds from self-evident claims that Finnis calls “basic goods”, which are  intuitions that are not derived from theoretical (metaphysical) claims.  I have not bought into that argument because it is obviously false if one considers the foundational claims of the two theories.

The separation of fact and value that Finnis accepts as given was a modern development that antedates Aquinas by several centuries. The separation of fact and value as distinct types of claims would not have been possible for him. The nature of a moral teleology merges fact and moral purpose. Aquinas believed that knowledge of the moral purpose of a thing is understood through the act of perception. In Finnis’ commentary of Aristotle’s de Anima, he makes that point unambiguously. Perception is a faculty of the mind whereby the form of the thing perceived is copied into the mind. Aquinas’ naive realism follows Aristotle in believing  that the mind gains knowledge of the formal essence of the thing perceived and thereby its moral teleos. Finnis denies precisely this by accepting the fact/value dichotomy and attributing it to Aquinas’s distinction between spectulative and practical. This is interesting today because Gorsuch studied Finnis and was presumably influenced by him.  I admittedly have not yet delved into his legal philosophy, but I will be looking for this move in it.

It seems to me that the intuitions that Finnis identifies as Basic Goods are drawn from  different levels of abstraction and operate at different levels from the the types of claims that are made in the law. This demands some consideration. Let’s take friendship as an example. Friendship is a basic good, such that no rational person could deny that it is good in itself. That’s Finnis’ claim. But, neither “friend” nor “good” are self-interpreting concepts. What is a friend? There have always been debates about this question. What constitutes a true friend? What can one hope for one’s friends? What can a friendship achieve?  And, so on.  And the “good” is even more vague. If the good is an absolute judgment–that it is some universal destination of category against which all concepts might be judged–then it would seem to contain a much larger set of possiblities than the term Friend. A friend is some sort of judgement about a person. The good is an absolute moral category. So, then to say that the membership of Friend in the set of things that are Good is an immediate intuition, begs the question: how is this intuition possible? How does one come to know that a Friend belongs in the set of Good things? Finnis says it is an immediate intuition. But, this is not much of an answer.

He is quick to argue that the Basic Goods cannot be derived. And, so we will grant him that this knowledge does not arise through a priori reasoning. Presumably it is an a posteriori judgement that one has from having had Friends and some familiarity with the Good. But, how do these experiences happen? To judge someone a friend, one must have already a concept of friend and some notion of how to use that concept. And, to assign the concept Friend to the category of Good, one must have some concept of Good and know its ordinary use. That is to say, the immediate intuition is possible only because of a semantic system of meaning that already presupposes it.  On this reading, then, the Basic Goods are in fact artifacts of a system of semantic meaning. This was, of course, what Neurath and Quine argued. And, what Wittgenstein developed into his anti-philosophy. Viewed in this light, Finnis is veiling a cultural conservatism behind a claim of self-evidence. The New Natural Law simply justifies maintaining the cultural norms and power relations.

This is not to say that law is indifferent to moral purposes. Indeed, I think that legal theory needs to recover some moral foundation for judging purposes and that the lack of the ability to speak about moral purpose and human nature has greatly hampered the effectiveness of the rule of law and undermined the foundations of the American democracy.  But, simply accepting the traditional cultural norms is precisely what cannot be done in a period of enormous cultural and technological change. We need to do better. I am looking forward to delving into Gorsuch’s legal philosophy, but I suspect that he will not have overcome these shortcomings.

As a footnote, let me add that Jean Porter’s sorry work on jurisprudence is much weaker than Finnis’. She too accepts Hart as a starting point and does not appreciate the epistemological issues between Hart and the natural law. And, since she lacks legal knowledge which Finnis has, her work also lacks clear examples and the a posteriori judgments that might have led a better thinker to make more sound analysis.