Law as Artificial Reason I: Law's Discipline
Images of Law
Philosophical jurisprudence seeks to give articulate, critical expression to our experience and understanding of law. We ask that such reflective accounts faithfully capture what law does and what we do in and with it. We also ask that they give us a critical perspective on law. Law is not merely a social or cultural fact; it also is, or can be, an achievement. So our conceptual frame for understanding law must involve to some degree articulation of standards by which we can appreciate the achievement and measure its shortfall.
From its earliest beginnings, theoretical reflection on law has relied on various images or archetypes to prompt and structure their explanations of law’s diverse phenomena. In classical thinking, these images clustered around two polar notions: Power and Reason. For the skeptical, law was only a mask for Power; for the committed, it was represented as commands of a sovereign—power articulated as orders enjoying legitimacy because they are issued by one with authority. For others, law (ius, droit, recht) captured the idea of law as Reason, something opposed to, rather than merely a qualification of, power, an ordering of the moral and political world on the model of the rational ordering of the universe. These classical images portrayed law as austere, set apart from ordinary experience, and set over those subjected to it. They represented the experience of law as kind of alienation—as “other people’s power” or a “brooding omnipresence in the sky.”
Some contemporary images retain this austere demeanor. Law is conceived of as a hierarchically structured system of norms; as organized and orderly knowledge of the legal universe. Sometimes it is rendered more approachable, even domestic: for example, as a matter of social rules or conventions like chess, or “a union of primary and secondary rules;” similarly, sometimes, legal reasoning is represented as akin to writing a chain novel or following a melody.
These images resonate to some extent with ordinary experience, but they have obvious limitations; focusing our attention on certain aspects of legal experience they blur, distort, or blind us to other potentially important aspects. However, legal theory cannot do without images. So, in this lecture, rather than offering a way of thinking about law stripped of images, I will offer and explore a different, less familiar image.
Seventeenth Century Common Law jurists were fond of characterizing their law as “artificial reason.” “Artificial” not as in fabricated and false, but as in the work of artisans’ craft—made, perhaps, but not made up—and embedded in the history and quotidian practices of political communities. “Reason” was understood not as some transcendent ordering of the moral and legal universe, but as reasoning, a disciplined activity in which legal rules get their meaning and force. This notion came to full articulation at a time of English history in which power was being centralized in the Crown. The Common Law idea of artificial reason articulated law-based resistance to absolutism. It explained how law could exist, have normative force, independent of supreme ruling power, how it could rule both those who exercise ruling power and those who are subject to it.
I propose to examine this image—the image of law as a multilayered discipline of deliberating and reasoning together regarding public matters, a disciplined practice of public practical reasoning. The task of this first lecture is to elaborate this proposal, hoping to highlight its plausibility and usefulness through this elaboration. The next lecture will address a few of the most important objections to this notion.
Normative Practice
I begin with the uncontroversial claim that law is a special kind of normative practice.
Practice: Meaningful Deeds in a Common World
A practice can be viewed from the outside as regularities of behavior, but, as Hart insisted, participants take “internal point of view” on these activities. “Internal” must be understood not in the sense of something interior to participants—their attitudes, beliefs, and endorsements of participants—but rather in the sense of matters internal to the practice, to the activity of participating in the practice. Practice activities are not merely regularities to which attitudes of participants are added. They are deeds, actions that are meaningful and often normatively charged—meaningful not by virtue of a convergence of participants’ attitudes, but by virtue of their mode of participation. Thus, what sustains the practice are not individual endorsements (“attitudes” or “beliefs”) of the practice, but the interactive engagements of participants—the way the individuals’ actions are taken up by others, responding to it, affirming, refining, challenging, extending, or narrowing it.
To participate in a social practice is to engage in conduct of participants oriented to each other, looking to each other, their understandings based in part on anticipating the understandings of other participants. It involves grasping the significance of some pattern of conduct, recognizing its application in the present circumstances, against the background of intermeshing anticipations and understandings of others.
Thus, social practices are modes of uttered conduct, deeds that have significance not just to this or that individual participant, but to the participants in common—not to we each but to we together. The conduct is uttered in public and has public significance. So a participant asks not what are they (the others) doing, or what am I doing (what is its significance for my part only), but what is my part in what we are doing. The meaning is not private or personal, but publicly disclosed as an action of a member of the practice community. Moreover, practices are dynamic; they unfold over time producing a common stock of meaningful conduct to which participants contribute and from which they draw.
To participate in a practice requires mastering a discipline, a learned combination of habits, skills, and dispositions. Learning the discipline of a social practice is like learning a language. One does not merely acquire a repertoire of routine responses to routine situations, like memorizing stock phrases from a traveler’s phrase book; rather, one develops a capacity to express novel sentences and thoughts. Acting within a practice involves improvisation. To participate in a social practice one must master a technique of moving from a grasp of what we (typically) do to determining what one should do in novel circumstances. Thus, learning how to participate in a social practice, one learns how to move around with relative ease in the common world of the practice.
Normative and Interactive
Participation in the practice, exercising its discipline, has a normative dimension. It involves competent performances and judgments. Participants undertake several commitments: commitments (a) to judge certain performances as appropriate or correct and others as mistaken; (b) to act when the occasion arises in accord with these judgments; (c) to challenge conduct that falls short of these judgments; and (d) to recognize appeals to the judgments as vindications of actions or valid criticisms of them.
These commitments are normative and intersubjective. They are normative because to make commitments of this sort is to take responsibility for one’s actions and judgments and to assess one’s actions and judgments in light of this assumption of responsibility. They are intersubjective in the sense that they presuppose a relationship among the participants, a reciprocally recognized standing to hold each other to this responsibility. We place ourselves under the authority of practices and their norms, not by abandoning our judgment, transferring it to experts, but rather by engaging together in mutual offering and assessing claims regarding what the practice requires of us.
Normative practices come in many different shapes and sizes, with different personal, social, moral significance. They range from rituals of greeting, giving gifts, making vows or promises, to religious practices of prayer. An especially rich example of a normative practice can be found in a jazz club, engaged in by a small jazz ensemble. The work of the ensemble is richly improvisatory, but also complexly structured, coordination; players think as members of the ensemble, working out their musical responsibilities within the broad structure of the “tune” and the scope and direction of their improvisations. This requires of each player constant reading, interpreting, mutual anticipating, and adjusting. Paul Berliner describes jazz ensemble playing as a kind of common thinking and acting, a form of intelligent reasoning together in real time.
Law’s Habitat and Mode of Operation
It is useful to think of the social practice characteristic of law on analogy with a jazz ensemble, but there is one key difference between it and jazz. Law’s practice is fundamentally articulate and discursive. Jazz involves a kind of deliberate and deliberative thinking, but its language and logic are musical, not discursive. Presently, we will explore these features of the special discipline of law. But, first, to understand why the law’s social practice takes this shape we need to consider the natural habitat in which law operates and its distinctive mode of operation.
Law’s Habitat
Law is a practice in and of particular political communities. Consider, first a few distinctive features of modern political societies.
Modern political societies are usually large, territorially bounded social groups; membership in them for all practical purposes is non-voluntary. Relations among citizens typically are not intimate, but somewhat distant. Common experience, where it exists, is mediated through participation in a wide variety of social, economic, and political institutions and associations. For members, the texture of personal relations in the community is less important than the structures of social interaction and mutual dealing available to them, the coordinated efforts of large social groups, the institutionalized constitution of power, and the modes and limits of its exercise. Also, modern political societies tend to be morally and culturally heterogeneous. They gather under a single civic roof a wide array of traditions and moral visions, competing for space, resources, standing, and power. Because of this pluralism, conflict in modern political societies tends to involve not only conflicts of interest, but also deep and pervasive conflict of vision and principle.
Finally, political societies are pervasively coercive. Behavior, relationships, arrangements, and institutions are underwritten by coercive institutions. Hence, social interactions operate in an environment of power, and politics in the community is always concerned, explicitly or implicitly, with a struggle over the exercise of power and over the standards by which this exercise is politically legitimated. Citizens demand justice of their institutions and social arrangements; yet, they disagree deeply over what justice requires. In such circumstances, Rousseau counseled, we must look to law. “Undoubtedly there is a universal justice emanating from reason alone, but this justice, to be admitted among us, ought to be reciprocal… There must therefore be conventions and laws to unite rights and duties and to refer justice back to its object.” In view of deep disagreement, no individuals or groups can justly impose even their best judgments of the requirements of justice on their common institutions and arrangements. They can, however, reasonably demand that their institutions be sensitive, and the exercise of governing power responsive, to arguments made in public in a public, deliberative language. For this purpose, Matthew Hale argued that we cannot depend on the “natural reason” of moral philosophers, “because they are transported from the ordinary measures of right and wrong.” We need a practice in which those who speak law are persons trained in a special discipline of public practical reasoning, persons “of observation and experience in human affairs and conversation” among members of the political community, and thus able to communicate with and in that community.
Normative Guidance: Law’s Modus Operandi
Law is a social practice, and thus normative in the sense that performances in the practice are governed by standards of competence. It is also normative in a further sense: Law seeks to provide normative guidance to members of the law community. This is its fundamental modus operandi; it is not one or even a major function of law, but rather it is the manner, technique, means by which it seeks to serve the goals to which law is directed. Call this the Normative Guidance Thesis.
Law seeks to order social life by influencing the conduct of individuals and social groups. It does so not by causing it, manipulating psychological determinants of behavior, or by altering the natural, physical environment of deliberation, but rather by engaging the deliberative capacities of legal subjects. Addressing law subjects, law seeks to guide rather than goad behavior.
One way to influence the deliberation of rational agents is to make salient to them features of their circumstances which, when appreciated, will give them reason to act in certain ways. A sign on a neighborhood street might read: “Children playing”—or, more commonly where I come from: “drive as if your children were playing here.” Similarly, there is, I am told, a sign one encounters when entering Lions Park near Sydney, Australia. It reads “trespassers will be eaten.” Law seeks to influence deliberation in a different way.
It does not merely describe desirable behavior, indicating a path one might take; it prescribes measures by which subjects of law are meant to guide their practical decisions and assess their actions. It seeks to engage the practical reasoning of subjects of law by articulating norms and reasons they can grasp, appreciate, and incorporate into their deliberations. Although it does not necessarily (rationally) determine their decisions and actions, it provides answers to their questions about what they ought to do. In this way, as Lon Fuller was keen to point out, law treats them as subjects of the law, rather than subjected to it. The aim of normative guidance is not to produce behavior, but to influence deliberation and thereby influence conduct.
Law, we said, is set to work in political communities. This determines in part the character of law’s normative guidance in several ways. First, typically law’s directives are addressed not to law subjects individually, but to the public at large. The guidance it offers is addressed to individuals engaged in complex networks of social interaction. Among these agents it is common knowledge that they are rational, self-directing agents. So, guidance works when their understanding of the norms and of the authority of the norms is common. Law’s directives must be publicly accessible; the reasons they give must be reasons that law subjects generally can appreciate and readily understand that others appreciate.
This need for public understanding and appreciation puts law subjects and law-maintaining officials into a complex network of interdependence and imposes on them a discipline of reciprocity. Each law subject and each official must engage in a kind of triangulation to arrive at his or her understanding of legal norms. Law subjects test their individual understandings against what they expect from other law subjects with whom they are likely to interact and from officials in whose jurisdiction they find themselves. Officials, likewise, must approach their understanding of legal norms guided by the understanding held by other officials and by the public generally.
The law’s normative guidance is shaped in a second way. Law guides not only through directives, but also through constituting a networks of relationships, responsibilities, and statuses which reinforce and underwrite the normative infrastructure of the community. This constitutive dimension of law’s normative guidance is of signal importance. In this way, law gives meaning to a wide range of actions and activities in the public domain and to social relationships. We talk of law’s practice as a discipline of practical reasoning, but this practice involves more than uttering reasons seen as premises of practical syllogisms. The law also provides scripts that give public meaning to behavior and modes of social interaction. Actions are seen as fulfilling duties, violating rights, causing injuries, fulfilling or failing responsibilities as parents, fiduciaries, or public officials.
The law’s constitutive efforts are evident in definitions of marriage; laws define conditions for incorporation of business enterprises and for the transfer and inheritance of property; they enable the creation and maintenance of organizations and associations of all kinds. Law does more than prescribe a repertoire of behavior; it defines horizons of consideration for practical deliberation and supplies the infrastructure for meaningful and secure interactions and relationships in the political community.
Third, the law guides by providing frameworks for mutual accountability, modes of interaction in which those who are subject to law, and who exercise power in ways ordained by it, are answerable to others subject to that power. To be a subject of law involves more than privately recognizing the law’s claims on one; it essentially involves one’s being subject to others who are in a position to hold one accountable to it. To be accountable only to oneself is to be accountable to no one. Law’s guidance is effective when its norms are underwritten by forms and forums of mutual accountability.
Law’s Discipline
In its primary habitat—a political community—law’s project of normative guidance calls for a discipline with a distinctive character. Law is a historically situated, institutionalized form of deliberative discourse regarding public matters, purporting to bind everyone within its jurisdiction, at least in part, by virtue of its being able to speak for all of them. It purports to guide citizens and order their interrelations by means of publicly articulated and defensible norms addressed to their deliberative faculties. In sum, law’s discipline is an institutionalized, discursive, collaborative, pragmatic discipline of practical reasoning mindful of time and of systemic coherence. Consider with me each of these dimensions.
Discursive
Law’s discipline is essentially discursive, by which I mean that it is articulate and argumentative.
Articulate: The basic constituents of social practices are deeds—meaningful conduct. In the law’s distinctive practice, the “deeds” necessarily include words, efforts at making explicit and available for grasp by the public the meaning of deeds that are required or performed. Law necessarily involves judgments. In its language, claims are made, challenged, and defended. Law is the language of public accountability in and addressed to the public. Moreover, the patterns evident in this practice are patterns of reasons deployed in argument.
Argumentative: Law’s discipline is a discipline of making publicly articulated arguments—uttering, offering, assessing, and challenging reasons. Unlike chess, the moves and counter-moves of law’s practice are moves in argument, offering claims, counterclaims, challenges, responses, and offers of warrants for action and rejections or revisions of them. The rules or norms that emerge from this process get their content and force from the roles they play in the law’s recognized networks of reasoning and argument. Identifying and articulating the content of norms involves exploring the reasons and arguments for and against them, and the conclusions that they support and those they do not support.
To learn this discipline is to learn how to make one’s way in this discursive, argumentative network together with others. The moves of argument in this public practice involve uttering reasons “toward” other participants—to use Fuller’s language. That is, the reasons are offered in public to other members of that public. The reasoning is not ad hominem, but inter homines, offering reasons that participants have some hope of being regarded as reasons “for us.”
This discipline makes possible a kind of objectivity fit for law. We do not demand objectivity in all domains of life, even in our interactions with others. In some domains, de gustibus non disputandum is acceptable, even welcome, but law is not one of them. Law’s deliberative domain is the domain of public judgments. Arbitrary, strictly personal, matters that need no further vindication than one’s passing whim, are out of place in law’s domain. We demand of law a mode of discourse that attracts and disciplines reasoned argument, one in which our differences, conflicts, and disagreements respond to argument. This incorporates into the discursive discipline standards of performance. Our judgments must transcend the merely subjective—vindication by ipse dixit, as Bentham would put it. When the strictly subjective is left behind and the possibility of error uncovered by others is acknowledged, space is opened for disagreement and the possibility of agreement, of contestation and potential consilience of judgment. In this context, disagreement is not a sign of dysfunction in the practice, but of healthy engagement: in law’s domain, de legibus disputandum est.
Because it is articulate and argumentative, law’s discipline is also reflective and self-critical in its DNA. Since critical assessment of claims internal to law’s practice is a distinctive habit and skill of the discipline, responsible participation is not possible without turning a critical eye from time to time on the practice itself. Notably self-critical reflection by participants—i.e., self-critical reflection on the practice itself, not just one’s individual performance—has no place in many other normative practices, for example, in games like chess or football.
This self-critical, reflective aspect of law’s discipline makes possible a degree of self-correction or at least beneficial adjustments to changing social and political circumstances. It may also explain in part the way in which law’s discipline has changed over the long history of this practice. Theoretical accounts of law in texts of the distant or not-too-distant past may look unfamiliar to us, not because earlier jurists or philosophers simply misunderstood the phenomena of law, but because the phenomena they observed and reflected on might have actually been rather different from those familiar to us, and may have changed in part as a consequence of critical reflection on them.
Institutionalized
Law’s discipline, unlike many other important social practices, is institutionalized. Law’s discipline is learned and practiced prominently in formal institutions. The legal order is a structured complex of institutions consisting of a carefully defined range of roles and offices, assigned to discrete, often intricately related, domains of operation with distinct functions, arranged in hierarchies of authority. Of course, law’s discipline cannot provide effective normative guidance to the political community if is limited to the activities of incumbents in such offices. Nevertheless, their activities lead, model, and mediate the public’s participation.
As we have seen, the law’s normative guidance is not only directive and constitutive, it also guides by enabling mutual accountability. Law’s institutions define structures and networks of mutual accountability, where those who are subject to the exercise of power by others have recourse to hold them accountable to the law for that exercise. Law enables, empowers, and disciplines this essential, and essentially public, activity of accountability holding. The institutionalization of law’s discipline, thus, is not incidental, but rather fundamental, to its work of providing effective normative guidance in our political communities. We can highlight two dimensions of this necessary institutionalization.
Forensic: More specifically, forensic institutions play a central role in law’s institutionalized mode of normative guidance. Sir Edward Coke, the Seventeenth Century English jurist, wrote that law is “tried and sifted upon disputatious argument [in court]. No individual outside of court could discover the right reason of a general rule.” Coke typically overstates his point, but he is correct to say that law is found and forged in courts. Within the web of interdependent governing institutions, courts take a leadership role due to their public prominence and the legally constituted authority given them. Law’s public discipline is signally practiced in courts and in activities carried on in their shadows. Courts, in their formal structure and procedures and their daily activities model the structure, process, and practice of the discipline. Their internal standards of performance model best practices for the exercise of law’s discipline in other domains of life in the political community. Because law is only part of the daily work of members of the political community, only a segment of the community, the legal community, can be actively involved in its day-to-day operation. Thus, participation in the discipline of a healthy legal order by members of the political community in general is typically mediated, but never supplanted, by the legal-judicial profession.
Offices and authorities: Institutions are formal structures of roles, defining powers and responsibilities, and assigning them to officials. Officials are fitted with authority in different degrees over domains of various sizes. Moreover, authorities are typically arranged in hierarchies. These hierarchical relations are internal to the law, ordained, constituted, and delimited by the governing principles of the law. Any account or interpretation of the law of a given domain must include among its components the principles by which the roles, responsibilities, and relative authority of the offices and officials are defined. These principles are constituents of the network of norms of the given legal order.
Thus, understanding how to move around in the discursive, argumentative domain of any given legal order involves understanding the powers and responsibilities of its officials and their relative authority and its limits, as constituted by law. This includes understanding the extent to which deference to authority is required and dissent is tolerated. The norms defining and delimiting legal authorities, like all other rules and norms of the legal order, have their content and force by virtue of the place they hold in the discursive network of the given legal order, and thus are subject to law’s distinctive, argumentative discipline.
Orientation
Law’s discursive—articulate and argumentative—and institutionalized discipline is characterized also by its distinctive orientation. Four dimensions of this orientation call for attention: the discipline is collaborative, pragmatic, and mindful of time and of systemic coherence. Let us look at each of these dimensions.
Collaborative: Law is a disciplined social practice, it structures a form of common reasoning. Law’s discipline is a learned, shared capacity; the process of deliberative reasoning is a collective project, a collaborative effort. Participants who master the discipline move around the common world of the argumentative practice. When they make claims about what the law is or requires, they offer formulations of collectively meaningful actions and norms that govern them. Uttering such formulations, they contribute to an on-going discourse with other participants, their interlocutors, across time.
Of course, conversations may begin with proposals that do not square precisely with proposals uttered or entertained by other participants. They may not only be different, but discrepant, opposing each other. However, the conversation, the reasoning effort, does not end there; law’s discipline calls for an effort at consilience, mutual adjustment of claims aimed at resolving the conflict. However, because this discipline is fundamentally argumentative, participants pursue consilience by further argument, searching for further, deeper reasons that can resolve the conflict. Training in law’s discipline involves more than training in logic; it includes anticipating what others engaged in the practice can recognize as sound reasons pointing to the best understanding of the matter in question.
Consilience or consensus is not a pre-condition of engaging in the discipline, neither is it an expected outcome. But it is a regulative idea of the collaborative process. Since challenge is an essential part of this argumentative discipline, conflict at the outset and even at any stopping point in the process cannot be ruled out. Nevertheless, the discipline looks to, depends on, a drive toward consilience. When participants disagree (responsibly and with integrity), they disagree about how best to formulate and express what they take to be the meaning or implications of their common activity. Participants recognize that they participate in a common activity, the product of common work; when they disagree, they disagree about how best to articulate this common meaning.
Reasoning in and with law is always done by individuals, but it is never done for the individual’s own part only. Those who articulate the law speak in the name of the community as a whole. Decision makers working within law’s discipline misunderstand their role if they see it as a matter of taking a moral stand purely on their own account, for they are responsible for and to the practice and the political community in which it is embedded.
Time-mindful: Law’s discipline anchors deliberation and reasoning to the past—to the recorded actions, decisions, and articulated rules regarded as acts of the community, that are normative for and binding on the community’s officials and members. In societies that are not entirely dependent on the written word, these actions may be recorded in ritual, custom, or concrete memorials. In modern, literate societies they are recorded in books or other media, as well as publicly known events and customary practices. This articulated record is the visible, epidermal layer of law. Law’s normative vitality depends on the integration of these elements into the daily practice of deliberation.
Mindfulness of time lies at the heart of law’s discipline. Law orders time in and of the community, orienting practical deliberation in its cross-temporal life. Law-disciplined public deliberation looks to the community’s recorded past for an understanding of its commitments and it projects this understanding into the future. Like Janus at the threshold between past and future, legal deliberation in a particular present case looks backward to the examples and commitments from which it has come and forward to the future into which the community is moving. Law’s discipline requires deliberators and decision-makers to locate the instant case in a trajectory from past commitments into a collectively meaningful future. When this trajectory is plotted successfully, it tracks understandings of the practice community and anticipates the future uptake by other decision makers and those meant to be guided by the law. The status, content, scope, and normative force of legal propositions are determined by the way courts, officials, and the public have read the recorded past and are likely to take up the proposed understandings. Retention and understanding of past applications and anticipation of future ones are essential to grasping the import of the law for present cases.
The time-mindfulness of law’s discipline facilitates the law’s project of providing normative guidance for the political community. First, law facilitates the efforts of individual members as they seek to mesh their temporally extended personal projects with similar projects of others. Second, it enables them to constitute and sustain their community over time. Time-mindful law identifies, records, articulates, and enforces commitments of their community. The collective past practice of the community bears the shape of the common life of its members. Law enables them to address together the question of what that shape is and what it means for their present and future. The fidelity of members of the community to law is an important way members expresses their fidelity to the community and keep faith with each other.
Pragmatic and Mindful of Systematic Coherence: Law’s discipline calls for a degree of systemic coherence of the corpus juris, but it does so with a decidedly pragmatic orientation.
Law’s discipline deals with immanently practical matters of concern to the political community, matters of ordering social life and coordinating complex modes of interaction within it. So, although it may address high stakes issues of political morality, its focus and orientation is on relatively concrete situations and problems. Its attention to systematic coherence stems from two complementary sources: the need to sustain law’s normative integrity and legitimacy, and law’s aim to provide normative guidance. To achieve these goals, it must view the law at any particular time as “a unified realm of legal meaning and purpose,” enabling subjects of the law to identify as pragmatically intelligible the path that law marks out.
The pressure toward systemic coherence is a matter of practical intelligibility, not intellectual tidiness. The law, at its best, offers to those it seeks to guide a system of interconnected norms, related by content, not an aggregate of discrete rules or directives. The content, scope, and status of legal norms are determined relative to other norms of the system; the meaning of particular legal rules is typically conditioned by their interaction with other rules and provisions. Legal rules provide reasons for action that implicate other actions or judgments and which themselves are grounded in further reasons and norms. Law-disciplined practical deliberation locates particular rules or reasons in a network of mutually conditioned norms.
The corpus juris can be thought of as a kind of dynamic system that seeks equilibrium. New rules “take a great deal of existing law for granted.” To achieve their purposes they need the cooperation of other elements of the corpus. Introducing a new rule or legally recognized action into the system may require modification of the newly added item or of some part of the whole. For example, if a new criminal offense is created, the vast general part of the criminal law becomes relevant, along with laws defining powers of the police, court jurisdiction, trial procedure, and much more. The new rule must be accepted in this normative neighborhood. Adding the rule to the system may prompt adjustment of the rule; or it may disturb the equilibrium, forcing internal adjustment to reestablish the equilibrium.
Moreover, this systemic integration is not hierarchical, but inferential. It aims to link elements by locating their place in an inferential network of reasons, rather than deriving them from more general principles. Given this pragmatic, non-hierarchical bent of law’s discipline, this equilibrating activity, integration of the new into the existing corpus, is not an abstract, theoretical matter, but a matter of adjustment and accommodation with the aim of providing practically intelligible normative guidance. The demand for coherence of the system, on the one hand, and practical intelligibility—its working on the ground—are mutually corrective. Heraclitus wrote, “the cosmos works by harmony of tensions, like the lyre and bow.” Law’s discipline also works by a harmony of tensions, by the mutually tempering action of these two demands.
This has two immediately apparent consequences. First, doctrinal coherence will tend to be local rather than corpus-wide, aimed at making a department or segment of the law practically intelligible, rather than securing broad theoretical coherence of the entire body of law. It does not demand general, theoretical coherence when the possibly ill-fitting parts are not likely to overlap in actual practice. However, the pressure increases when law subjects are likely to find themselves pulled in inconsistent directions. Law’s discipline tolerates incompleteness of vision, but not incompatible directives.
The discipline’s pragmatic bent eases the pressure on collaboration to seek consilience of all divergent positions. In view of this pragmatic orientation, the consilience may be easier to achieve than deep resolution of theoretical conflicts. Conciliation may seek a working solution, leaving resolution of deeper issues for another day or time. The aim is achieving an understanding of law’s requirements or entitlements that are practically intelligible to those who are implicated and most likely regularly to interact.
Second, the consistency or coherence of law is likely to be approximated rather than securely achieved for a significant period of time; it is approached rather than reached with finality. The legal order is dynamic, always needing to adjust to changing circumstances and demands of life in the political community. Legal reasoning is willing to sacrifice a degree of theoretical coherence for substantial resonance of the law in the community that it serves.
Recalcitrant Reality
I have suggested that law is usefully understood as a form of artificial reason—as a historically institutionalized discipline of public practical reasoning. This characterization of law can be challenged from a number of different quarters. Three major objections come immediately to mind.
First, the problem of short fall. Consider the alleged systemic or collaborative character of law’s discipline. Any clear-eyed observer of familiar legal orders would report varying degrees of incoherence evident in them, and officials and judges who evidently pursue their own, political or personal, agendas disregarding the requirement of an effort toward consilience of discrepant views. As descriptions of actual legal practice, the systemic and collaborative dimensions seem fictional.
An adequate answer to this objection is available, I believe. The thesis presented here calls attention to a discipline, an activity governed by performance standards, not a description of regular behavior. Rules of logic or grammar reflect disciplines of thought and language; they do not merely describe reasoning or language use. Likewise, participants in legal practice may display varying levels of proficiency in this discipline. Built into the discipline are standards of performance dictated by the nature of the discipline. For example, judges are expected, i.e., required as matters of good performance, not only to hear facts and arguments of law, but to hearken to them, to give them the focus of their deliberative attention, usually to exclusion of other considerations that an observer not trained in the law might find attractive. Similarly, they must construct rationales for their decisions—their publicly articulated opinions—according to recognized standards of logical and rationally cogent argument. These are not merely ways of doing good and admirable things in the courtroom, they are standards of proper performance, standards derived from the nature of the practice and what counts as good performance in it. They are regulative ideas of the practice.
In this vein, Neil MacCormick wrote, “the idea of system functions as itself a regulative ideal within legal discourse . . . as a concept contained within or encapsulated within our thought [about law] and partly regulating or structuring it.” Systemic coherence, and serious efforts at collaboration, are performance standards of this discipline; not facts about practice behavior, but regulative ideas implicit in the practice. Participants in the discipline may not meet its demands, but this would be a failure of participants—they fall short of its ideal—not a failure of the account of the discipline. Furthermore, entire legal orders may fall short of the regulative ideas of law’s discipline. They would not thereby fail to be legal orders, but they would fall short of what is minimally expected of law.
Second, the problem of conflict. A critic might object that when legal decision makers ignore the demand for an effort at consilience, they do not fall short of some governing standard of performance, but actually do what is expected and required by the practice properly understood. Christopher Kutz, for example, argued that “it is a salient feature of adjudication that getting it right is often more important than getting it together.” We demand a significant degree of independence of our judges. The discipline, when practiced up to standard, is characterized not by consensus, harmony, or sweet reason, but by dispute, dissent, sweet dissonance. To claim that the discipline is oriented toward collaboration, the critic argues, fails to give adequate attention to the dissonant dimension of legal reasoning. Call this the problem of conflict.
This is an important objection. It requires that we look more carefully at the notion of common reasoning and the role that dissensus may legitimately play in it. I will address this challenge in the sequel to this lecture.
A third major objection arises from the tension introduced into law’s discipline by its institutionalization; the tension between the idea that law’s fundamental modus operandi is to constitute and sustain social order through publicly addressed norms and the representation of law as the disciplined practice of a professional elite, the “artificial reason” of jurispiriti. Professionalization of the discipline opens a gap between the law’s trained elite and members of the public, the ordinary consumers of law and, according to the theory, law’s intended addressees. Lon Fuller would regard this as a failure of congruence between the law and the quotidian understandings of ordinary people. This problem of congruence calls into question not only the idea that law’s discipline is or can be a truly public discipline, but also the idea that law’s modus operandi is essentially a matter of normative guidance addressed to the public.
This is also an important objection that requires a more detailed examination of the nature of law’s normative guidance and the kind of congruence that is possible for law to seek. The lecture to follow will take up this examination.
Conclusion
You may wish wait for discussion of these problems before signing on to the “law as artificial reason” thesis, but, in conclusion, I can offer you a few words in its defense. First, admittedly, the thesis I have proposed moves certain features of our experience of law to the foreground and relegates others to the background. I have offered it as an organizing concept that helps us understand better law’s activity and role in modern societies. It is offered as an alternative to representing law as bare exercise of power, or commands of a sovereign, or the articulation of Reason, or the union of primary and secondary rules. Each of these alternatives also has serious limitations. However, the relevant test for such proposals is whether it illuminates the phenomena and our experience of law without serious distortion, yields important insights that help us better understand how it works, and enables us to engage in it intelligently and assess it critically. I believe that the artificial reason thesis provides those benefits.
Second, I think the proposed thesis helps explain the normative claim that law makes on us. Law is not merely a fact of social life that we must contend with; it presents itself as making demands, often costly ones, on us and on our interactions with others. And it claims reasonable warrant—legitimacy—for making these demands based at least in part on its mode of operation, and not merely on its getting justice right.
The habitat of modern law is a political community, a territorially bounded space in which large numbers of people who are not intimately connected interact and seek arrangements that approximate justice, but deeply disagree about what justice requires of them and their institutions, and look to those who exercise governing power to maintain these arrangements. In political communities with these characteristics law as a disciplined practice of public practical reasoning offers an important advantage.
In communities characterized by pluralism, law so conceived does not stop or stifle disputes over justice and other important matters of political morality, but rather channels, domesticates, and disciplines them. In contrast, some legal theorists (Joseph Raz, for example) regard law as a surrogate for potentially conflictual practical reasoning in the public domain, displacing practical deliberation onto the artificial resources of formal legal rules and blocking appeal beyond them. However, this model fails to recognize a potentially valuable resource that law offers pluralistic political communities: it provides materials and forums for responsibly carrying on the disputes, and means of achieving temporary settlement of them, open in due time and place to reconsideration. As Jeremy Waldron put it (channeling Ronald Dworkin), “a society ruled by law . . . is a society committed to a certain method of arguing about [justice and] the exercise of political power.” Such a society is committed to justice not merely as a result, but equally importantly as a process, that recognizes the fact of pluralism and seeks a mode of debate about justice that has the potential to respect each member, respect that is modeled by argument in its public forums. Law, so conceived, provides a discipline of public reasoning, shaped by its practice in a public forum and tethered to an interconnected body of decisions, norms, and examples that are normative for the community because it represents its past and precedents for its future.
We may also gain some insight into important features of law by looking at our ideal of the rule of law, an ideal foundational to democracy and the possibility of a just and decent political community. The core aim of the rule of law ideal, I have argued, is to provide protection and recourse against the arbitrary exercise of power. The means it selects for this task is law. The rule of law ideal looks to law for principled, moral reasons, not just because law seems to be pretty good at constraining power. From the point of view of this ideal, law offers a means of constraining power in line with and underwriting some important moral values. So, we might ask what is it about law that attracts us, who are committed to the rule of law aim, to law for this purpose.
We look to law to temper power—to constitute and constrain it—especially where the stakes are very high, but call on it to do so in a way that recognizes and respects the integrity of our political communities and the dignity of its members. We look to law because it manages social and political arrangements not by force and fear, but by engaging our deliberation together. It also provides standards for the exercise of power and a common framework for systematically holding those who exercise it accountable to those standards. Moreover, it enables these accountability activities to take place in public, available to the public. Accountability involves demanding in public warrants for exercises of power and opportunities to challenge them. This requires a framework for offering, assessing, and deciding upon reasons and arguments. Law’s discipline offers just such a public practice. As a bonus, law provides a mode of political association that accords and protects the membership of each person in the community. An institutionalized discipline of public practical reasoning—a community-wide practice of artificial reason—is a morally attractive means of tempering wayward political and social power. Law offers such a practice—when it is working up to its promise.
Gerald J. Postema
Boshamer Professor of Philosophy and Professor of Law, Emeritus, University of North Carolina at Chapel Hill. He served as Arthur L. Goodhart Distinguished Visiting Professor of Legal Science, and Fellow of Corpus Christi College, Cambridge (2013-14). He holds an honorary doctorate from the University of Athens and has held visiting posts at the European University Institute, University of Athens, Yale University, and University of California, Berkeley. In 2022, Oxford University Press published his Law’s Rule: The Nature, Value, and Viability of the Rule of Law. Other major publications: Bentham and the Common Law Tradition, 2nd edition (OUP, 2019); Utility, Publicity, and Law: Bentham’s Moral and Legal Philosophy (OUP, 2019); On the Law of Nature, Reason, and the Common Law: Selected Jurisprudential Writings of Sir Matthew Hale (OUP, 2017); Legal Philosophy in the Twentieth Century: The Common Law World (Springer, 2011). Currently, he is co-editor of Cambridge Elements: Philosophy of Law and served as associate editor of Treatise of General Jurisprudence and the Philosophy of Law, 12 volumes (Springer, 2005–2016), and from 1997 to 2006 edited Cambridge Studies in Philosophy and Law.