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November 3, 2007

John Gardner's skepticism about "the distinctiveness of legal philosophy"

I have been reading around the interesting interview/essays in Legal Philosophy:  5 Questions, and thought I would post some interesting excerpts over the next few weeks.  Here is John Gardner (Oxford) answering the question about the "distinctive" issues of legal philosophy (pp. 50-51 of the book):

I should begin by expressing my doubts about the distinctiveness of legal philosophy.  It is best to think of legal philosophy as part of political philosophy, which in turn is part of moral philosophy, which in turn is part of the philosophy of practical rationality, which in turn is part of the philosophy of rationality in general (to which philosophical aesthetics and epistemology also belong).  The partitioning involved in this nested structure is, however, somewhat arbitrary.  Except for the purposes of designing, recruiting students, and hiring colleagues, it doesn't really matter which issues are classified as belonging to the philosophy of law or any other branch of philosophy.  What matters is that good philosophers do interesting work on deep puzzles in a way which shows sufficient sensitivty to ther interrelations with other deep puzzles.  One of the pitfalls of attemping to demarcate different areas of philosophy...is that it encourages a bureaucratic approach to academic life:  those who do primary work in moral philosophy, for example, may feel that it is legitimate to borrow ready-to-wear theories from the 'epistemology' rack, rather than tackling epistemic theories for themselves.  They may look comical dressed in these borrowed theories, since they lack an original creator's sense of how the theories are supposed to be used and developed.  The philosophy of law is not immune from this comedy.

When I suggested that the philosophy of law is part of political philosophy, you may have heard echoes of Ronald Dworkin.  Dworkin criticizes those (including me) who try to tackle conceptual problems about law in a way that leaves open what poliitcal actors, including judges, should do....Dworkin is right to insist the philosophy of law cannot be autonomous of political philosophy, for it is part of it.  His mistake lies in his view of political philosophy itself.  Political philosophy is not exhausted or even dominated by questions about what political actors should do.  Just as epistemology includes the conceptual question "what is belief?", the answer to which does not determinate or even suggest what beliefs anyone should hold, so political philosophy includes numerous conceptual questions (what is legislation?  what is a state?  what is an election?), the answers to which do not determine or even suggest what anyone should do.  We need to answer these questions if we are to make sense of the proposed political principles in which the concepts in question figure....By denying that there are any such prior conceptual questions, or at least that there are any such prior conceptual questions about law, Dworkin is not campaigning for a greater integration of legal philosophy into political philosophy.  He is campaigning for those of us who already regard legal philosophy as part of political philosophy to change our understanding of political philosophy, maybe indeed philosophy as a whole.

Posted by Brian Leiter on November 3, 2007 in Meta-Jurisprudence | Permalink


Gardner writes: "[P]olitical philosophy includes numerous conceptual questions (what is legislation? what is a state? what is an election?), the answers to which do not determine or even suggest what anyone should do."

Maybe. But it seems "conceptual" questions cannot really be answered without also grappling with questions about "what political actors should do."

For example, the question "what is a state" would seem to require an understanding of what the function of a state is, which comes awfully close to the question "what should political actors do [or provide for those govered]."

A Hobbesian understanding of the basic function of a state (to maintain order) -- even if styled a "conceptual" question -- has normative implications as to the design of that state (a hierarchical authoritarian regime), and how individuals shall behave with respect to the state's authority (provide absolute deference).

Even if the details of the Hobbesian view above are inaccurate, the point it tries to make is that Dworkin is likely right to the extent that first order normative questions of "what to do" both shape and are shaped by putatively "conceptual" questions.

Apologies if my reponse is based on a misunderstanding of Gardner's post.

Posted by: Erik E. | Nov 5, 2007 2:48:29 PM

I find it hard to respond directly to Erik since, unlike him, I don't think the state is a functional kind. But election is, so let me take that example from my original list instead.

It is the main function of an election, as the idea figures in political thought, to confer membership of a political institution. One does not understand what an election is without knowing this. Nevertheless one may understand what an election is without approving of this way of conferring membership, and without believing that anyone should participate in it.

More generally, not all functions are good ones, and some should be resisted. It is the function of a poison to bring about sickness or death. It does not follow that anyone should use poisons to bring about sickness or death. Quite the contrary. The function of poison means that poisions are things to look out for and avoid.

So it is a long way (contrary to Erik's claim) from knowing the function of some political mechanism or activity to establishing that someone somewhere should serve it.

Posted by: John Gardner | Nov 6, 2007 5:01:30 AM

Gardner's point is actually a cautious one: "Political philosophy is not *exhausted or even dominated* by questions about what political actors should do." This requires, at most, that there be *some* questions in political philosophy answering which does not require that we work out what some political actor ought to do. There are, of course, also other kinds of questions.

Which sort of question is this one: "What is a state?" Erik suggests, "the question "what is a state" would seem to require an understanding of what the function of a state is..." Max Weber did not take that view. He writes,"the state cannot be defined in terms of its ends. There is scarcely any task that some political association has not taken in hand, and there is no task that one could say has always been exclusive and peculiar to those associations which are designated as political ones: today the state, or historically, those associations which have been the predecessors of the modern state."

Why is Weber's claim wrong, or, if right, irrelevant to the thesis that in trying to answer the question, "What is a state?" there is no need first to figure out "how individuals [ought] to behave with respect to the state's authority..."? (Indeed, one can imagine someone thinking the priority runs the other way round: we have to know something about what a state is and what sort of authority it claims before we can give content to the question of how individuals ought to behave with respect to those claims.)

I took the spirit of Gardner's observation to be a pluralist one: some folks have said that all major conceptual questions in political philosophy can be answered without making normative judgements (e.g. Felix Oppenheim); other folks have said that no major conceptual questions in political philosophy can be answered without making normative judgements. (e.g. Ronald Dworkin). Another view--one that I myself find plausible--is that they are both wrong. There are a variety of different sorts of conceptual questions in political, and therefore legal, philosophy.

Posted by: Les Green | Nov 6, 2007 5:21:48 AM

Given that the spirit of John G's observation is indeed pluralist - as Les G suggests and as it seems to me to be as well - then hear hear. Also if so, though, then it isn't yet clear in just how much tension Erik E's comment stands with it. Erik's 'maybe' (second para) suggests less tension, his apparently categorical 'cannot really be' (same para) would seem to suggest more tension.

I've no catalogue of all or even most important politico-philosophic questions, so am in no position to suggest any specific partition of the class. Nevertheless Erik's point seems to me well taken in at least this sense: It is at least initially tempting to suppose that there are *some* politico-philosophic concepts that are not thoroughly explicated, hence some politico-philosophic questions that are not throughly addressed, until their action-guiding properties are imaginatively grasped or appreciated from an 'internal,' not simply behaviorally or otherwise described from an 'external,' point of view. That's not to say that one cannot intelligibly address the 'what is it' question *at all* without addressing the 'what ought we [the theorists] do' question, as Erik seems to me on at least one plausible reading to be suggesting. But it *would* seem to entail that one cannot adequately address the 'what is it' question without at least appreciating the way(s) in which 'what ought we do' questions that *others* [those, potentially but not necessarily including ourselves qua citizens or subjects rather than qua theorists, whose institutions we are attempting fully to characterise] will often find themselves posing are unavoidably *associated* with or *implicated* by such 'what is it' queries. The 'what' in each 'what is it' question, that is to say, must surely correspond to a characteristic class of 'what ought I do' questions that we will view the 'what' in question as implicating in the action-determining deliberations of those whose institutions we are considering. And in appreciating those 'what ought I do' questions as being thus implicated, we shall effectively be assimilating them to questions that we ourselves, in our roles as citizens or subjects, oft in all likelihood find ourselves posing to ourselves. At least in that minimal sense, the 'what is it' questions seem inseparably bound up with 'what ought we do' questions.

Example: What ever the merits of Weber's claims about the state and its ends cited by Les G, it would seem difficult to distinguish the ranges of application of such terms as 'state' from those of such terms as 'most effective armed gang' (as presumably we wish to do, right?) without recourse to some such concept(s) as authority, recognition, or legitimacy. And that would seem so even if we limit ourselves to 'externalist,' 'as if'-style deployments of such concepts. (E.g., 'the state is that monopolist of force which those over whom it wields force treat or "recognise" *as* authoritative or legitimate.') And the intelligibility of such externalist deployments would seem in turn to be parasitic upon 'internal' grasp of the concepts at least in this minimal sense: In using such terms, we appeal to the reader or listener's appreciation of what it is to act upon reasons recognised as binding, at least prima facially, in virtue of the identity or status of the obligor as distinguished from punishments or rewards administered by the same. Otherwise we fail to distinguish states from effective force-wielders, and speak of nothing more than behavioral regularities not rules, right? So at the very least Erik seems to be right in suggesting that at least some conceptual distinctions that doubtless many political theorists are inclined to draw require recourse, if they would be fully explicated, to the distinction between 'internal' grasp of an 'ought' and 'external' description of an 'is.'

Posted by: Robert | Nov 26, 2007 3:35:27 PM

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