Humanism’s Heirs

Richard Posner is much on my mind these days. Partly that’s due to the excellent “Posner on Posner” extended-profile-and-interview-series by Ronald Collins over at Concurring Opinions (the latest instalment of which is here); partly to my (re)reading a couple of his books on adjudication (How Judges Think and Reflections on Judging); partly to his recent controversial remarks on privacy at a conference (the entire panel is well worth watching, especially in light of the Supreme Court’s recent cell phone search decision). Perhaps that’s why, when I read Mark Walters’s fascinating article on “Legal Humanism and Law-as-Integrity”, (2008) 67:2 Cambridge LJ 352 (alas, not freely accessible), which traces the intellectual ancestry of Ronald Dworkin’s ideas about law to the common law theorists of the late 16th and early 17th centuries, Judge Posner, no less than the late prof. Dworkin, is an heir to the legal humanist thought.

Summarizing his findings, prof. Walters explains that

[t]he efforts made by humanist jurists of the late-sixteenth and early seventeenth centuries to theorise early-modern common law method produced conclusions on the relationship between law and philosophy, the value of coherence, the nature of interpretation and truth, and the importance of integrity and equality for legal reasoning that resemble, in fundamental ways, the tenets of Dworkin’s theory of law-as-integrity. (373)

But it seems to me that Judge Posner’s “pragmatism” bears as much, if not more resemblance, to the humanist jurists’ conclusions ― as expounded by prof. Walters, on whose account I rely here, on the first and the last of these points.

Regarding the relationship between law and “philosophy,” prof. Walters explains that

[c]ommon law humanism, like humanism generally, denied the distinction between theory and practice. The common law existed as part of a larger philosophical enterprise, and therefore the studia humanitatis were relevant to understanding its substance and form. (361)

This meant, according to one of the jurists on whose work prof. Walters’s account is based, that

[t]he “rules of reason” that “direct our course in the arguing of any case” … derive out of “the best and very bowels of Diuinitie, Grammer, Logicke, [and] also from Philosophie natural, Politicall, Oeconomick, [and] Morrall” ― i.e., the studia humanitatis. (362)

Prof. Walters focuses on prof. Dworkin’s embrace of “Philosophie Politicall and Morrall” as part of his theory of law (which led prof. Dworkin, in work published after Prof. Walters’s article, to treat law as a branch of philosophy). But he says nothing of prof. Dworkin’s lack of interest in the other branches of “philosophy” that interested the humanists. Judge Posner, who helped create the law & economics movement, and is now strenuously advocating that lawyers embrace mathematics and the sciences ― which humanists used to call “natural philosophy” ― by contrast, is very much interested in these areas of the studia humanitatis. Admittedly he may seem be interested in them to the exclusion of moral and political philosophy. He has said, for instance, that

[t]he fundamental difference between [him and prof. Dworkin] is that [prof. Dworkin] believes that there is such a thing as moral reasoning and that it should guide judges, and I, while not doubting that there is such a thing as morality and that it influences law, believe that moral reasoning is just a fancy name for political contention.

Yet even here, the first impression might be misleading insofar as, with their habit of including into the realm of philosophy the areas of inquiry which we dignify, or disparage, with the title of science, the humanists might actually have considered political science, in which Judge Posner is very much interested (see his recent opinion, dissenting from denial of a re-hearing en banc, in Frank v. Walker, a voter-ID case), as a branch of political philosophy, and perhaps even psychology as belonging to moral philosophy. (This is, admittedly, a somewhat speculative claim ― it’s difficult, and dangerous, to guess how the people of a past age would have thought of something that simply did not exist when they lived.)

In any case, beyond the specifics, the whole project of the humanist jurists sounds similar to Judge Posner’s. As prof. Walters describes it,

they were suggesting that the common law was woven into a very specific and developed intellectual tradition associated with the liberal arts and sciences that were (mainly) taught within European universities at the time and that could not be known to judges and lawyers through the spark of natural reason alone.

This echoes Judge Posner’s (somewhat desperate) insistence, in Reflections on Judging, that judges need to be acquainted with

specialized bodies of knowledge in or relating to psychology, political science, education, prison administration, religious practices and institutions, statistics, economics, computer science, biochemistry, fi­nance, personnel management, marketing, medicine, epidemiology, collusion between commercial competitors, intellectual property, terrorism, and the status of members of minority groups in foreign countries, (79)

and any number of others ― and that they cannot rely on “merely intuitive grounding for [their] beliefs” (92). Of course, the scientific disciplines that exist today are vastly different from those that existed 400 years ago, but Judge Posner’s attitude  ― a desire to incorporate the most advanced elements of knowledge available into the law ― seems to be more consonant with that of the humanists than the much narrower project of making law embrace moral reasoning. Indeed, the aim of one of the jurists cited by prof. Walters

to show how common law cases already revealed forms of argument that followed humanist dialectical methods … and also how a more thorough order might be brought to the common law through a more rigorous application of those methods (362)

is an exact parallel to the twin projects of law & economics: the descriptive project, to show how the common law already incorporates important elements of  the most rigorous and sophisticated methodology of its time (obviously, a very different one); and the normative project, to argue for the law’s improvement by further and more rigorous application of that methodology.

As for the role of integrity and equality in legal reasoning, prof. Walters argues that the humanist jurists’ views prefigured prof. Dworkin’s because they regarded “the common good,” conceived “as embracing equality and opposing favouritism to individuals or groups” (370-71) as the criterion for choosing between the principles that could be derived from conflicting authorities ― a way, as prof. Dworkin would say, of presenting the law in its best light. Prof. Walters claims that this conception of the common good meant that the humanists did not have “utilitarian or policy-based grounds for the common law,” which would seem to exclude Judge Posner as their intellectual heir. But I find this assertion hard to understand ― surely one can be a utilitarian and think that the law should aim at public, rather than private, advantage. Posnerian pragmatism, or even a more unalloyed law & economics approach, are not ways of favouring individuals or groups ― on the contrary, they aim at increasing the welfare of society as a whole.

And in other ways, Judge Posner’s views on adjudication are quite consonant with those of the humanists. The idea, for instance, that “the authorities and cases … should rather be examined how they accord with reason, then how many they be in number” (370) foreshadows his denunciations of excessive and mindless citation in How Judges Think. Similarly, Sir John Dodderidge’s claims “that Cases different in circumstance, may be neverthelesse compared each to other in equality of Reason; so that of like Reason, like Law might be framed,” and that “[i]t is not the Case ruled this way, nor that way, but the reason which maketh Law,” (373) which prof. Walters cites as evidence of common law humanism’s embrace of the Dworkinian “values of equality and integrity,” may just as well ― and in my view better ― be seen reflected in Judge Posner’s emphasis on looking at the policy reasons behind the holdings in prior cases in order to extend ― or not extend ― these holdings to apply in the different circumstances of new disputes. Unlike both the humanists and prof. Dworkin, Judge Posner insists that, in such cases, judges are legislating rather than merely applying pre-existing law, but that dispute is, it seems to me, little more than semantic. What Judge Posner means is that precedents cannot be mechanically applied in new circumstances; that an effort of reasoning, of understanding their purposes is necessary before their authority can be extended; and neither the humanists nor prof. Dworkin would have denied this.

Thus Judge Posner’s pragmatic, science-infused approach to adjudication can be seen, as well as prof. Dworkin’s law-as-integrity, as development of the humanist common law thought described by prof. Walters. Indeed, in some ways, it reflects that intellectual tradition better than law-as-integrity does. Just like prof. Dworkin, Judge Posner would likely disclaim the heritage, but prof. Walters is right that we should not place too much stock in such disclaimers.

R.I.P., Ronald Dworkin

“Yes, man is mortal, but that would be just half the trouble. What’s bad is that he is sometimes suddenly mortal; there’s the rub!”

Woland’s grim words from Bulgakov’s The Master and Margarita ring very true indeed today. Ronald Dworkin’s death this morning comes an absolute shock. Neither nor, I believe, anyone I know was aware that he was ill. He taught until last year at NYU, and was full of energy. The Colloquium on Legal, Political and Social Philosophy, which he ran (with Thomas Nagel) will remain a highlight of my time here, a weekly intellectual feast every fall semester.

I’m not the biggest fan of his ideas, but now is not the time for quarrelling with them. Whether he was right or wrong, he always forced us to think, and that’s really all a philosopher can hope for, not having the means to demonstrate the truth of his opinions. I’ll only mention here his latest work, which, fittingly, was a reflections on “Religion without God,” which I thought were very interesting. He argued that one could have “a religious attitude”―believe that values were real and that there was a meaning to life, and marvel at the universe―regardless of whether one believed in God. His Einstein Lectures, in which he expounded this view, and its consequences for constitutional law, are available here, and well worth a look.

I guess he has now found out whether he was right. It’s a real shame that he won’t be able to tell us, though.

UPDATE: the New York Times’ has now published an obituary by Adam Liptak.

UPDATE #2: The New York Review of Books, to which prof. Dworkin was a frequent contributor, has posted some of his essays here.

UPDATE #3: There are plenty of tributes out there now, but this one, by Randy Barnett, is particularly generous and moving.

Right Answer Romantics

I was re-reading F.A. Hayek’s discussion of the common law in Chapters 4 and 5 of Rules and Order, the first volume of his Law, Legislation and Liberty, and was struck by something I had missed when I first read it four years ago while working on a thesis on common-law constitutionalism. When deciding a case in which the applicable rule of law is not readily supplied by prior judicial decisions  (or by a statute), says Hayek,

The judge may err, he may not succeed in discovering what is required by the rationale of the existing order, or he may be misled by his preference for a particular outcome of the case in hand; but all this does not alter the fact that he has a problem to solve for which in most instances there will be only one right solution and that this is a task in which his will or his emotional response has no place. (119-20)

This is strongly reminiscent, of course, of the (more familiar to most legal philosophers) “right answer thesis” defended by Ronald Dworkin, according to which there is a right answer to every legal question, no matter how difficult, which a proper interpretation of the law should yield.

There are minor differences in the qualifications Hayek and Dworkin make for their right-answer claims: the former concedes, it seems, that there are at least some cases in which it does not hold―though he does not say what these are. The latter is willing to allow that the right answer cannot “be proved right to the satisfaction of everyone” (Law’s Empire, ix, emphasis in the original). Still, the two clearly believe in the essential truth of the one right answer claim.

They also come to it in roughly similar ways, arguing that, while the sources of law recognized by legal positivists (statutes and judicial decisions) do not provide all the answers to all legal questions, more general principles do. They differ somewhat on where these general principles come from and how they are to be found. For Dworkin, one gets at them by interpreting and making sense of prior political decisions of the community, notably the constitution, statutes, and judicial decisions. For Hayek, they are rules of conduct observed unconsciously by members of the community, unbeknownst perhaps to its rulers. But the first place to look for them is in prior judicial decisions (and perhaps also in legislation, though Hayek does not say so, because he recognizes that some legislation corrects aberrant judicial decisions). So these positions are not actually all that different.

In addition to the right answer thesis, Hayek and Dworkin draw another common conclusion from their view that the law’s “seamless web” (to use Dworkin’s expression) or “going order” (to use Hayek’s) is complete and ready to supply a sufficiently skilled and conscientious judge with right answers to all his questions. Both claim that judges do not “make law” in the way legal positivists think they do. Dworkin says that while

judges unquestionably ‘make new law’ every time they decide an important case. They announce a rule or principle or qualification or elaboration … that has never been officially declared before,

this can really be said to be law-making “in a trivial sense.” (6) They do not really make new law―they actually say what the law, properly understood, already was. Hayek makes a greater allowance for the judge’s creative role, but he is adamant that

even when in the performance of [his] function [the judge] creates new rules, he is not a creator of a new order but a servant endeavouring to maintain and improve the functioning of an existing order. (119)

And there, I suspect, is the key to this at first sight unlikely unison between the classical liberal Hayek and the New Dealer Dworkin. They are both trying very hard to legitimize the judges’ work, because they mistrust legislatures. They do so for opposite reasons: Hayek thinks they are over-eager to ride roughshod over the economic liberty and property rights of people; Dworkin, that they are likely not to respect individual rights, the chief of which is equality (not liberty). Their legal utopias are very different: Hayek’s ideal law a morally neutral framework in which each person is free to pursue his own ends, and in which the state’s values have no place at all; Dworkin’s is a legal system thoroughly permeated by a single, coherent set of values. But the upshot is the same. Legislatures are likely to impede the attainment of utopia. Judges, on the contrary, hold the values that can bring it about. (Of course Dworkin and Hayek can’t be both right about this, and perhaps neither of them is, but each thinks that he is.) So both idealized the judges’ law, and join in an almost indistinguishable common law romanticism.