Last week at the Juris North discussion group, I was lucky enough to hear Cosmin Vaduva of the University of Bucharest present a paper on “philosophical fantasies and their role in concept formation”, focusing on Wittgenstein and Hart. Vaduva’s seemingly unremarkable starting-point was the use made by both Hart and Wittgenstein of a particular kind of thought-experiment: the kind which involves imagining that the world was entirely different from the conditions we know. The obvious candidate in the work of Hart is the Giant Land Crab postulate, which I discussed on this blog some time ago. Wittgenstein’s Philosophical Investigations furnish many more examples. For instance:
if things were quite different from what they actually are ‐ if there were, for instance, no characteristic expression of pain, of fear, of joy; if rule became exception, and exception rule; or if both became phenomena of roughly equal frequency ‐ our normal language‐games would thereby lose their point. The procedure of putting a lump of cheese on a balance and fixing the price by the turn of the scale would lose its point if it frequently happened that such lumps suddenly grew or shrank with no obvious cause.
Or take this grotesque but illuminating example from Wittgenstein’s diaries:
Mutilate a human being all the way, cut off his arms & legs nose & ears & then see what remains of his self‐respect & of his dignity & to what extent his concepts of such things still remain the same. We have no idea how these concepts depend on the ordinary, normal, condition of our body. What becomes of them when we are led by a leash with a ring through our tongues & tied up? How much of a human being then remains in him? Into what sort of state does such a human being sink? We don’t know that we are standing on a high and narrow rock & around us chasms in which everything looks completely different.
The point, for both Hart and Wittgenstein, is that we are as we are, and that the way things are is contingent – the world could have been (could be) utterly different. All our thinking is conditioned by a known and taken-for-granted background, which is given by the way things are and doesn’t need to be thought about. But this imposes limits on our thought which should be acknowledged, even though we may not be fully aware of them. When we think about the role law plays in our lives, we are not thinking about the lives of beings with no need to take in nutrition or protect themselves from attack; when we think about personhood, we are not thinking about the personhood of someone who has been systematically mutilated and debased.
What this means is that any idea that our thinking can attain universality has to be abandoned. Vaduva cited a passage from Joseph Raz on the inherent universality of legal philosophy:
Its theses, if true, apply universally, that is they speak of all law, of all legal systems; of those that exist, or that will exist, and even of those that can exist though they never will. Moreover, its theses are advanced as necessarily universal.
Taken literally, this surely claims far too much. We can distinguish roughly speaking between three meanings of the word ‘law’, in ascending order of abstraction and generality: law(3) would stand for the observed workings of actual legal systems; law(2) would be the law as theorised in a given time and place – the law of Commonwealth England or of Weimar Germany, for instance; and law(1) would be a Platonic essence of law, instantiated in more or less imperfect forms down here on Earth. Raz appears to be saying that the theses of legal philosophy are valid of all law(3) (“legal systems”) and all law(2), and that they have this degree of validity because they are also valid of law(1) – or perhaps because they are, they constitute, law(1). But – Hart might rejoin – this is far too hasty. Apart from anything else, what do we know of all legal systems? Just as anyone generalising about all language would have to accommodate languages using subject-object-verb and verb-object-subject word order – as well as the subject-verb-object system we’re used to – so anyone generalising about all law would have to ensure that their generalisations covered the law of pharaonic Egypt, medieval Zimbabwe and the Paris Commune, not to mention those legal systems which may develop if ever people are routinely clad “like giant land crabs with an impenetrable carapace”. Legal philosophy, if it were to make universal claims, would need to be grounded in outlandishly extensive exercises in historical socio-legal anthropology – and even this would not make it future-proof. Raz’s “necessarily universal” legal philosophy offers to do without this kind of empirical research by lifting the Platonic veil and looking directly at the essential nature of law(1) itself. Hart’s thought-experiment, echoing Wittgenstein’s, suggests that this approach is not only fruitless but pointless; Raz’s universalising propositions are neither true nor false but meaningless, nonsensical.
We can see some of the broader implications of this argument if we trace Hart’s ‘land crab’ thought-experiment back to the context in which he advanced it: that of natural law, and the possibility of identifying a minimum content of natural law. The ‘minimum’ in this sense is not – as it would be for Finnis, Fuller or Simmonds – a starting-point to be fleshed out and built on; rather, it’s the minimum in the sense that it’s the furthest point to which the pretensions of natural law can be driven back. From Hart’s perspective it might better have been called the maximum content of natural law – the most that can or should be conceded to the natural law position. The ‘land crab’ thought-experiment can thus be seen to advance two related claims, one openly and one by implication. On one hand, there are certain human universals – primarily our vulnerability both to the world at large and to one another – which must be addressed by any system of law we can imagine; entirely alien systems built on different principles are possible (contra Raz), but will never be imagined by anyone speculating on systems of law for human communities. (Science fiction writers can knock themselves out.) On the other hand, if this is indeed the minimum content of natural law, the implication is that the universal need to secure individual survival is the only universal need, or at least the only one with which the law needs to concern itself. In Wittgensteinian terms, Hart suggests that a huge variety of different language games can be played under the name of ‘law’; the only content they must preserve is that of securing individual survival (and even this need not be universal). As for what alternative forms of ‘law’ might exist beyond the horizon of even this shared purpose, Hart withholds judgment; but he does not reserve the name of ‘law’ to forms of law that we can imagine, even though these are (necessarily) the only forms on which he can make any comment.
As Vaduva presented it, Raz’s argument stands indicted twice over: of imagining that the systems of law we know have a single, essential ideal at their heart, rather than being bound together by a (limited) shared purpose and a set of family resemblances; and of imagining that this ideal has an inherent necessity and universality, such that entirely different and unknown systems of law could be assumed to embody the same ideal. Against Razian idealism, Vaduva proposed a kind of clean-eyed Wittgensteinian scepticism: why not admit that we have no access to a higher order of being, we know nothing about universals or essences, and the legal systems we’ve got are just the legal systems we’ve got? For me, this went both too far and not far enough. On one hand, to say that we are creatures of our own time, place and culture is not at all to say that we are beings without ideals, even if those ideals can never be grounded in some reality outside time and space. On the other, to say that our legal system ‘just is’ the legal system of human beings (rather than sentient land-crabs) leaves too much unsaid. At Juris North, a discussant pointed out how odd it was that Hart counterposed his own human embodiment to the science-fictional land-crab model, but not to the different human embodiments that surrounded him: isn’t it also the case that our legal system ‘just is’ the legal system of able-bodied adult male citizens? I would turn Vaduva’s proposal around: given that the legal system we’ve got just is the legal system we’ve got, and is the source of all we know about law, why not investigate the law we know to discover what ideals it has concealed about its person – ideals against which it can be assessed and held to account? Ideals in which we happen to believe for cultural and historical reasons are no less ideals, which may be genuinely worth believing in (as far as we can tell). Conversely, ideals which (we believe) are genuinely worth believing in are no less culturally and historically specific, and may themselves be replaced in future.
The conceptual focus-pull I’m proposing – modelled in part on the phenomenological epoche – would make it possible to preserve Raz’s idealism together with Hart’s opposition to essentials and universals. Indeed, we could take the anti-essentialism much further, explicitly considering ‘law’ in terms of the law of England and Wales and the values immanent within it. This is not to say, of course, that the law of England and Wales is the last word in law and the ideal of every idealist. On the contrary, I would argue that the actually-existing law should first be subjected to critique in the name of the values it supposedly embodies, before those values themselves were pushed to their limits. We might start out by demanding the extension of jury trial far beyond the tiny proportion of cases which are currently tried in this way, in the name of the presumption of innocence and trial by one’s peers, and end by proposing that the jury system should be superseded (aufgehoben, as you might say). It would be important not to neglect the first step, though, for reasons that should be obvious.
A candidate set of ideals for the task is given by Fuller’s ‘morality of law’ – which, interestingly, is also introduced in the form of a thought-experiment: through the story of King Rex we discover that it is impossible to imagine a country being run by laws which are entirely incomprehensible, or mutually contradictory, or retrospective… and so on. Hart played down the significance of the principles of legality put forward by Fuller, questioning whether they deserved the name of a ‘morality’ and arguing that they were technical criteria for the functioning of a legal system. But this leaves open the possibility of developing an ideal based on the fullest imaginable realisation of those principles, or values underlying those principles; once such an ideal was sketched out, it would also be possible to assess the functioning of an actual legal system against it.
In short, Vaduva (following Hart and indeed Wittgenstein) showed the way to ridding our thinking about law of universals and essences. Ridding it of ideals is another matter. The key question here is whether a single set of values can be used as criteria for both adequacy and excellence – whether they can function as a morality of duty and a morality of aspiration, in Fuller’s terms. But that’s another topic for another post.