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328 Pages·2018·1.89 MB·English

by  John Gardner

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law as a leap of faith
OUPCORRECTEDPROOF–FINAL,7/8/2012,SPi
OUPCORRECTEDPROOF–FINAL,7/8/2012,SPi
law as a leap of faith
Essays on Law in General
JOHN GARDNER
1
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PREFACE
In this book I have collected nine essays published over the past
fifteenyears,addingtwopreviouslyunpublishedones(Chapters8
and 11). It is hard to know where the subject ‘law in general’
ends,1 but I have taken quite a strict view of it in compiling this
material. I have left out a few essays on the borderline of the
subject,aswellasacouplethatIjustdon’tlikesomuch.Mostof
the previously published essays have been slightly corrected for
inclusion in the book. Those forming Chapters 7 and 10 have
been subjected to some more material changes.
My attempts to write an introduction that would paint the
bigger picture were unsuccessful, because there is no bigger
picture. I don’t have a theory of law, let alone what Ernest
Weinrib calls a ‘comprehensive theoretical position...[with]
broad philosophical vistas’.2 I have quite a lot of thoughts about
law in general and I can only hope that they turn out to be
consistent with one other. That they form any more perfect
union than that is neither likely nor desirable. Philosophy is not
theartofcompilingasmanylittlethoughtsaspossibleintoasfew
big thoughts as possible, but the art of wearing every thought
down to its rightful little size and then keeping it in its rightful
little place. So the main mission of this book, as I see it, is
unbundling: separating out disparate thoughts that have often
been regarded, mistakenly, as part of some package deal.
The marketing of ideas in package deals appeals to many law
students, at any rate in the English-speaking world. Quite apart
from making it a lot easier to come up with boilerplate text that
canbelearntfortheexam,thepackagedealapproachallowsone
to think of philosophy on the familiar model of an adversarial
trial,whetherindividuallitigationsuchasHartvDworkin,Posnerv
Weinrib,andRazvFinnis,orclassactionssuchasPositivismvNatural
1 GostraighttoCh11tofindoutwhatImeanbyit.
2 ErnestWeinrib,‘WhyLegalFormalism?’inRobertP.George(ed),Natural
LawTheory(Oxford1992),at352.
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Law and Formalism v Realism. This whole way of thinking about
whatisgoingonisablightonoursubject,andthesourceofmany
miserableexamanswers.Itryheretobreakfreefromit.Although
I donot hesitate, in what follows,toengage in a cross-examiner’s
ruthlessexposureoffalsehoods,especiallyperniciousones,youwill
alsofindmescouringassiduouslyfortruthsacrossmanysupposedly
rival positions and traditions, including some that the lawyers
among you may imagine to be those of my ‘opponents’.3 I am
such an intellectual squirrel (way beyond a mere fox) that I don’t
careatallwhereorhowIgetthelittletruthsthatIhoardawayinthe
followingpages. Imay evenoccasionallysnatchthemfromunder
thehedgehog’sverynose.4
As these remarks suggest, many of the essays included here
were originally written with pedagogical objectives in mind,
responding to perennial misconceptions on the part of my stu-
dents. You will struggle to find any conspicuously novel ideas
aboutlawinthebook.Mostofthenoveltythatthereisliesinthe
wayinwhichtheideasareexplainedandcombined.Alotofmy
thinking is owed, directly or indirectly, to H.L.A. Hart.In what
follows, I often attempt to elaborate Hartian ideas, to remove
Hartian hestitations, and to reformulate Hartian misstatements.
Sometimes (eg in Chapter9) I even give Hart a long-overdue
makeover. But the book is not a defence of Hart’s thinking as
such, and indeed begins as far away from Hart as it is possible to
go, with some Socratic and Kierkegaardian theological medita-
tionsonnormsandnormativity.Whysooutré?Harterred,inThe
Concept of Law, in thinking of all norms on the model of social
norms. In Chapter1 I am bending over backwards not to make,
or encourage, the same mistake. I am shifting the paradigm of
normativityasfarawayfromHart’s‘hatsinchurch’normasitis
possible to go. ‘Sacrifice your first-born son’ is the one that gets
3 See, notably, my attempts to settle the totally cross-purposes class action
knownas‘PositivismvNaturalLaw’inChs2and6.
4 An allusion to Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass
2011),itselfalludingtotheversebyArchilochus:‘Foxknowsmany,/Hedgehog
one/Solidtrick’or(morefreely)‘Foxknows/Eleventythree/Tricksandstill/Gets
caught:/Hedgehog knows/One but it/Always works’. Guy Davenport (ed &
trans),CarminaArchilochi:TheFragmentsofArchilochus(Berkeley1964).
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most of the attention here. This opens the way, I hope, to a
cleaner understanding, later, of the (limited but crucial) ways in
which specifically social norms figure in law, and also of the
various kinds of non-social norms that also have their part to
play in a full understanding of the law’s modality.
The quest for that cleaner understanding becomes a major
preoccupation in Chapters 3 and 4, reprised for new purposes
inChapter11.Chapter11reflectsbroadlyonthesocialaspectsof
law, those which allow sociologists to claim ownership of it
as subject of study. The chapter mounts a defence of Hart’s
(in)famousclaimtohavebeendoingbothsociologicalandphilos-
ophical work. Chapter3 explains, more specifically, how
customary law (and case law) can be accommodated in (and
cannot be accommodated without) an understanding of law as
‘positive’(iemadebypeople).Chapter4,undercoverofstudying
the nature of constitutions, investigates the essential place of a
customary ‘ultimate rule of recognition’ in every legal system.
Hereweconfirm(andeventoughenup)Hart’sclaimthatthereis
no legal system without at least one social norm.
In Chapters 5–10, by contrast, social norms as such are not so
muchintheforeground.Theconcerninthesechaptersismainly
withotherwaysofclassifyingnorms,andinparticular,overand
over again, with the contrasts between (a) norms that exist
because they are good and norms that exist because they are
made (of which social norms are only one sub-type); and (b)
general norms (aka rules) and particular norms (especially the
ones that I call ‘rulings’). These distinctions are introduced in
Chapter2, along with several others that recur throughout the
book.Chapter2isindeedabigunbundlingexercise,towhichthe
readerwhoonlywantsawhistle-stoptourofthemainthemesof
the book should now turn. Then, for another bout of aggressive
unbundling, she should move straight to Chapter6. These twin
essays, in a way the signature essays of the volume, ironically
invoke and preserve the infernal textbook classifications ‘legal
positivism’ and ‘natural law’ that they also attempt to deflate.
This is also a pedagogical move. Labels like this are pretty
arbitrary. But how can anyone be cajoled to stop thinking of a
‘legalpositivist’ora‘naturallawyer’asanall-purposebogeyman
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ifwepuritanicallyrefusetousethebogeyman’snametodesignate
anything at all?
Here are some other ways of combining chapters, for those
with more specific fish to fry. Chapter3 and Chapter5 both
explore aspects of the role of collective agency in the law.
Chapter3 considers the collective agency of legislatures and
courts. Chapter5 considers the agency of the law itself, through
its officials. I am not sceptical about either the agency of legisla-
tures or the agency of law itself. But they call for very different
analyses, which I try to provide. Chapter1 could also be read
with Chapters 5 and 6 for those attempting to delve deeper into
thevexedquestionofhowitispossibletotreatlawas‘normative’
(ie made up of norms) while regarding it as risible, immoral,
despicable, etc. This requires some definitive contrasting of law
with morality (Chapter6) but also some reflection on the defini-
tive way inwhich law invokes morality (Chapter5). This invoca-
tion (‘law’s moral claim’) represents, I argue, an important
necessary connection between law and morality.
So do the connections explored in Chapters 7 to 10. In
Chapter7 the attention shifts to one particular moral ideal, that
oflegality(or‘theruleoflaw’)anditsnecessaryconnectionwith
law. Chapters 8 and 9 explore some misunderstandings of this
same ideal, which are associated with misunderstandings of the
very nature of law. From the end of Chapter9 and into
Chapter10, we move to a different moral ideal, that of justice,
andwedosomemoredeflatingandsomemoreunbundling.Yes,
there is a necessary connection between law and justice, but (a)
not the big one that some people hope for; and (b) not to be
confused with the more intimate connection between law and
legality. Perhaps whistle-stop tourers finished with Chapters 2
and 6 would find Chapter9 the quickest way to sample this part
of the book.
Forthosewhodon’thavetimeevenforthewhistle-stoptour,
hereistheslideshow.Inotherwords,hereisalistofsomeofthe
principalthesesthataredefendedorsupportedinthebook,with
brief location information.
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} All law is made by people (Chapters 2 and 7), but not all is
made intentionally, or even knowingly, and in particular not
all is made by legislating (Chapters 2, 3, 4).
} Some sound legal reasoning (usually by the higher courts) is
capableofmakingnewlaw,oftenaccidentally(Chapters2,3,7).
} Thecontentofalllawisthecontentitwasgivenbyitsmakers
and changers (including those who make and change law by
applying it), never mind what content they ought to have
given it (Chapters 1 and 2).
} Thisincludesthelawthatdetermineswhocountsasanultim-
atemakerorchangeroflaw(whatHartcalls‘rulesofrecogni-
tion’) (Chapter4).
} There are therefore no moral criteria (necessary or otherwise)
for establishing what the law on any given matter says
(Chapters 2 and 8).
} Nevertheless,therearenecessary(conceptuallynecessary)con-
nections between law and morality (Chapters 2 and 5–10).
} A necessary connection: law by its nature holds itself out as
morally binding, even though that may be a mistake or a
pretence (Chapter5).
} Another necessary connection: legal reasoning is moral
reasoning with one or more legal premises (Chapters 2, 7).
} Also, there is a moral ideal for law, the ideal of legality or the
ruleoflaw,law’sanswerabilitytowhichisconceptuallydeter-
mined (ie is part of the very concept of law) (Chapters 7–9).
} And there is also, although more indirectly, a conceptual
connection between law and justice (Chapter10).
} Both the connection between law and legality, and that
betweenlawandjustice,confirmthatlawisamodalasopposed
toafunctionalkind;ieitisdisinguishedbyhowitdoeswhatit
does, not by why (Chapters 8–11).
} All of this, and more, is true of law in general (Chapter11).
For valuable conversations about and comments on the various
topics, mostly at the time of original writing but some more
recently, my thanks go to Larry Alexander, John Attanasio,
Nick Barber, Jes Bjarup, Bruno Celano, Jules Coleman, Sylvie
Delacroix, Michelle Dempsey, Julie Dickson, Sionaidh Douglas
Scott, Luís Duarte d’Almeida, Doug Edlin, Richard Ekins,
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Timothy Endicott, John Finnis, Robbie George, Les Green, Ken
Himma, Elisa Holmes, Tony Honoré, Matthias Klatt, Maris
Köpcke Tinturé, Matt Kramer, Niki Lacey, Grant Lamond,
BrianLeiter,thelateNeilMacCormick,TimMacklem,Margaret
Martin, José Juan Moreso, Mark Murphy, Hans Oberdiek, Peter
Oliver, Joseph Raz, Charles Silver, Nigel Simmonds, Tomasz
Stawecki, Shiv Swaminathan, Victor Tadros, John Tasioulas,
Massimo la Torre, Isabel Trujillo, and Wil Waluchow.
Les Green, Tony Honoré, Niki Lacey, Tim Macklem, and
JosephRazeachdeserveafurthermentionfortheircontributions
to my wider jurisprudential education over the years. Tim in
particular has been a source of endless intellectual support, for
which I am very grateful. Alex Flach has helped patiently and
beyond the call of duty with the process of turning all that
jurisprudential education into a book, and I benefited from
the hard work of Bethan Cousins, Briony Ryles, Emma Brady,
Binesh Hass, and Janet Walker during the book’s production.
Thebiggestthanksofallgotomyfamily,Jenny,Henrik,Annika,
and Audra, who have tolerated the whole business with good
humour and, in the case of the younger members, with exactly
the kind of wild indifference to all rules and rulings that a
philosopher of law needs to keep him on the level.
Initsoriginalversion,Chapter4wasdedicatedtothememory
of Neil MacCormick, and I renew that dedication here.