Law as Artificial Reason II: Commons Reasoning, Conflict, and Congruence
In the previous lecture, I introduced and tried to make appealing a way of thinking about law that is rather different from images of law that have long been dominant in legal theory. Following a suggestion of Seventeenth Century Common Law jurists, I proposed to think about law as a form of “artificial reason”—artificial not in the sense of being arbitrary and fictional, but in the sense of being the work of an artifix, a craft or discipline of certain kind.
I argued that the fundamental modus operandi of the law is to provide those it governs with normative guidance (the Normative Guidance Thesis), and that law is put to work in political communities that are territorially bounded, non-voluntary, and morally and culturally heterogeneous. In such pluralist communities, citizens demand justice of their institutions and social arrangements, but they are likely to disagree deeply over what justice requires. Law is equipped to provide normative guidance under these circumstances, I argued, because it is a normative practice of special kind: it is a disciplined practice of public practical reasoning modeled by, but not limited to, characteristic activity in courts and law offices. 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 (articulated and argumentative), collaborative, pragmatic discipline of practical reasoning that is mindful of time and of systemic coherence.
At the conclusion of the lecture, I acknowledged two fundamental objections to this characterization of law. The problem of congruence arises from an evident tension between the Normative Guidance Thesis and the representation of law as the disciplined practice of a professional elite, the “artificial reason” of jurispiriti. The problem of conflict arises from the claim that law’s discipline is collaborative, yet when practiced up to standard, it is characterized not by consensus, harmony, and sweet reason, but by dispute, dissent, and not so sweet dissonance. Let’s take up this challenge first.
Common Reasoning
I do not deny that a degree of tension exists between the collaborative and argumentative dimensions of law’s discipline, but I will argue that nevertheless disagreement among collaborators is welcomed and called for as part of law’s discipline. My argument begins with a closer look at the phenomenon of common reasoning in general and the role of collaboration in it. I will then consider the reasons for thinking that law’s discipline is oriented toward collaboration understood in this way. With that in hand, it will be possible to locate the role and limits of disagreement and conflict in law’s collaborative discipline.
First Person Plural Reasoning
Amartya Sen once offered the observation, surprising for an economist, that ‘We’ is “the natural unit of first person decision.” Refining Sen’s observation slightly, we might rather say that the first person plural (FPP) perspective is just as natural a framework for practical deliberation as the first person singular (FPS), when “we” is understood in the integrative (“we together”), rather than the aggregative (“we each”) sense. FPP thinking is thinking like a team.
The plural perspective, like its singular counterpart, offers a conceptual template and associated attitudes that together shape practical deliberation. They provide the basic materials that agents need to conceptualize their practical environment; to analyze the particular problem of choice and action they face, colored by the desires, aims, goals, and values to which they are committed; to survey feasible solutions; and to take account of the deliberations and decisions of others and of the likely outcomes of their individual and concerted actions.
Both the FPS and FPP perspectives may be oriented toward the actions or deliberations of others, but they do so in very different ways. Deliberators taking the FPS perspective view actions and deliberations of others as parameters of their deliberations; agents reasoning from FPP perspective see others as deliberation partners. Thus, for example, conformists, working within the FPS perspective seek to do what others do, perhaps in hopes of being accepted in the group. They take the behavior and deliberations of others as given, a feature of the environment of choice and action like the weather or the amount of money in their pockets. Cooperators, viewing their practical situations from the FPS perspective, recognize that the cooperative activities of others are essential to their achieving their own goals, but they take the deliberations of others as given, or hoped for. In contrast, thinking like a team—deliberating from the FPP perspective—involves joining others as partners in the task of achieving a collective goal (a goal that is achievable only through concerted action). This involves a different orientation of the deliberative frame and acceptance of certain responsibilities attendant upon adoption of that frame.
First, group and member recognition: agents think of themselves and others as members of some group. This is not a conclusion of an argument within the frame, but a component of that frame.
Second, act and rationality holism: agents see their actions as contributions to common work. They think of their individual actions not in isolation from the joint act and the individual acts of others, but as parts of a whole, and they regard the practical meaningfulness and rationality of their individual acts (from the FPP perspective) as strictly a function of the parts they play in the whole. So, agents first ask what should we (integrative sense) do, and then identify individual contributions as parts of what we do.
Third, responsibilities of deliberational partnership. Responsible FPP thinking not only moves downward, as it were, from what we should do to what I should do, but also moves in a horizontal direction. Thinking as a team requires that one engage with the deliberations of other team members; this, in turn, requires that one accept certain responsibilities of the deliberational partnership. It requires that one see and treat other members as co-determiners of what we do and so of what our respective parts in that common doing are. In particular, each must be mutually responsive and mutually supportive.
Mutual responsiveness. Typically, one’s plans are relatively indeterminate at the outset, and one makes them more determinate as one proceeds, adjusting them to more specific or novel circumstances or to misfires of plan-oriented actions. Team thinking, likewise, is continuously in play both ex ante in plan formation, and in medias res, responsive to the reasoning of the other players as they proceed together to work out and carry out the plan. Thinking as a team, members must be mutually responsive. They seek to mesh their respective sub-plans, adjusting their reasoning to the reasoning of the other players as they also work out their sub-plans.
This responsiveness is often reactive. An agent may note the shift in direction of thinking and actions of some of the other parties, requiring, on pain of incoherence or failure, a shift in the first agent’s sub-plan. But the responsiveness may also be anticipatory. An agent, recognizing a newly developing situation that calls for an adjustment on their part, makes the adjustment anticipating a complementary adjustment on their part. In some cases, the actions will occur in sequence so that something like signaling might be feasible, but this is not always possible. Anticipatory responsiveness is sometimes risky, but it is also remarkably common and successful, especially in groups that have worked together for a while.
Effective use of the plural frame depends on, or at least its success is greatly enhanced by, the existence of an informational commons (in Baier’s lovely phrase, “a commons of the mind”)—a sufficiently rich body of knowledge and experience shared by the parties. This information is regarded in the same holistic way as team thinkers regard their actions and the rationality of them. The information is available to me and to you, by virtue of that it is available to us. I infer that you have access to it, because I already know that it is common knowledge, for us. With the resources drawn from this commons, agents can deliberate together about common practical problems, and anticipate new directions and adjustments of others’ deliberations and decisions.
Mutual support. Mutual responsiveness of deliberation, like doing one’s part in the joint action, is a matter of one’s responsibility as a member. Team reasoning is typical in situations in which concerted actions of individuals is necessary to achieve some valuable goal, an outcome that members may individually have reason to bring about but cannot do so without the combined efforts of others. In such cases, success of the team effort will depend on the effective participation of a substantial number of the members, each doing their respective parts in the common endeavor. Failure to do one’s part not only contributes to the likely failure of the group, but it also fails the team and co-members of it. One’s contributions to the work and the deliberations is owed to the other members; to fail to do one’s part fails them, lets them down.
Thus, members have an individual interest qua member, and a responsibility oriented toward the contributions of the others, to do their respective parts. This responsibility may take different forms. Members may direct the attention of their fellow players to features of their common situation of which their fellows may not be aware, thereby insuring that these features are common knowledge; they may pick up slack left by other players when they falter due to weakness, inattention, lack of skill, or flagging resolve; they may urge members to do their respective parts or hold them accountable for failing to do so; or they may endeavor to maintain the relationship in the face of forces that threaten to erode it. Participation as a member of a team, FPP thinking, requires that members take responsibility for each other.
Personal Judgment and First Person Plural Reasoning
Two further comments on FPP reasoning are in order here. First, FPP deliberation is oriented toward collaboration, but this does not entail that one must abandon one’s own judgment, or subordinate it to that of another individual or to the group as a whole. Reasoning from FPP perspective is not conformist reasoning—treating the opinion of another as given, to which one must conform upon pain of failing the team. It requires, rather, that one regard each as co-determiners of the common work. It requires that one be responsive, not submissive. That means, also, of course, that one cannot expect, let alone demand, that all other members convert to one’s own view. Thinking as a team requires mutual responsiveness and support, not capitulation or conversion.
Second, sound FPP reasoning may lead to determinations of what one should do (as a member of the team), but it does not follow that this determines what one should do all things considered. A rational, moral agent must do that which is morally or rationally supported all things considered. FPP deliberation contributes to that determination. FPP thinking can exist alongside FPS thinking in a rational moral agent’s deliberation, just as one can be a member of more than one team and engage in team reasoning with respect to each. The FPP and FPS deliberative frames are distinct and may yield different results, but neither silences the other. Moreover, nothing in the idea of FPP deliberation guarantees its priority over FPS thinking. Rather, a moral agent’s ultimate deliberational perspective may call for careful, nuanced integration of these perspectives or balancing of their determinations.
Collaboration in Law’s Discipline
Thus far, we have considered collective activity and collaboration in general. But the nature of the collaboration—the kind of responsiveness and support required and degree to which deviations or dissensus are tolerated—may vary from one practice or collective activity to another. We can expect the nature and role of collaboration in law’s discipline to bear the stamp of the nature of its distinctive features and aims.
I have argued that law’s discipline is articulate and argumentative. The deliberation it structures provides rational bases for decisions and actions that determine the rights, duties, and powers of law subjects and their exercise of them. It also determines the distribution of benefits and burdens at law’s disposal, and the grounds and limits of the exercise of governing power. Law’s work is common work, work of many hands, that seeks interpretations of legal materials meant to provide normative guidance to law subjects. Collaboration takes shape within this discipline.
Note at outset, collaboration does not require that a participant conform to the opinions of any other participant. It requires responsiveness, not subordination. Of course, internal to the law of any particular legal order there may be hierarchies of authority that require some degree of deference. However, we should keep two qualification of this point about deference in mind. First, the requirements of deference are not rooted in law’s discipline itself, but in the rules and institutions of a particular legal order. Second, reasons of rule of law principle militate to some extent against it. Rule of law principles rule out absolute or strict deference, for that would weaken a fundamental device by which the rule of law tempers power, namely, an effective network of mutual accountability. A legal order will be in accord with core demands of the rule of law only if it accommodates the “delicate dialectic of deference and dissent.”
What does collaboration in this context and practice involve? David Tatel, recently retired US federal appellate court judge, writes that collegiality has nothing to do with having lunch or attending sporting events together, and “everything to do with respecting each other, listening to each other, and sometimes even changing our minds.” Judge Tatel gestures towards the deliberational responsibilities of judicial collaboration: mutual responsiveness and mutual support.
Responsiveness: First, individual participants regard their interpretations of legal materials as contributions to understanding what the “team”—the relevant practice community—has done, working out the common meaning of its actions. They offer interpretations as their best, and best supported by argument, judgments of what “we,” the community, have done and are doing.
Second, each participant is open to and takes with full seriousness the interpretations and arguments of the others. Because of its essential time-mindfulness, this requires that they view their practice synchronically and diachronically. Their partners in collaboration are current colleagues on the court, but also colleagues in the past and those they can project into the law’s and the community’s future. Their aim is not to appease current colleagues, but to find formulations that accord with the practice over time and that they have good reason to think will be taken up and affirmed by future colleagues.
Third, their interpretations are anchored in the law’s informational commons, the cases and other relevant materials of the law’s institutional history. This informational commons is their point of departure and constant point of reference. They recognize that they are accountable ultimately to these materials, and they make good faith efforts to stay honest to, and protect the integrity, of these materials.
Finally, they seek consilience of discrepant interpretations in and through the process of legal argument. They seek consilience not by capitulation nor by efforts at conversion of other participants, imposing their judgments and interpretations on them by whatever means available, but only through the force of explicit articulation of arguments. Their efforts at consilience involve listening to and answering the arguments of other participants; they will also make room for and seek out articulations of interpretative proposals that are likely to reduce disagreement, or postpone matters that still greatly divide participants to a later day when more opportunities for consilience may emerge.
Support. Mutual support may involve, inter alia, participants bringing reasons or evidence to the attention of colleagues who may have overlooked them, even when that evidence does not support their own position. It will also involve supporting lagging resolve, calling out the failures of argument, judgment, and behavior of colleagues, and holding them accountable to standards of the discipline.
Reasons for Collaboration
Collaboration of this sort is an important part of law’s discipline of public practical reasoning for three reasons. First, pressure towards collaboration comes from other dimensions of the discipline; in particular, efforts at collaboration are necessary if the law is to offer practically intelligible normative guidance to law subjects. Laws are addressed to the public at large and are meant to be grasped by individual members of this public relying on their understandings meshing with those of other members and of officials charged with administering and enforcing them. Officials, especially, cannot be indifferent to how a proposal for understanding some portion of the law might be taken up by others, especially law subjects. If the law is to be practically intelligible, interpretations of the law must be responsive to the understandings of the various participants in the practice. It cannot be achieved or even approximated if participants make decisions and take actions based solely on their individual understandings of the practice without consideration of how other key participants view the practice and its purported guidance. The regulative idea (and standard of performance internal to the practice of law) of practical intelligibility brings with it the requirement of collaboration.
A second reason for collaboration is that the decisions and actions of judges, for example, are understood to be decisions and actions, not of individuals, but of the law, and so of the collective effort of which individual judges are a part. What each does can be regarded as what the institution does only if each engages in that activity as a member of the team, deliberating and acting collaboratively. When they offer interpretations of the requirements of law they speak for, and in the name of the community, not in their own name. This is especially true for those whose interpretations have special weight in the legal order itself. Judges and other officials can speak the law legitimately only when they speak for the community; and they can speak for the community only if they are responsive to and supportive of the activities of other participants as well.
Moreover, law is a common practice, the practice of the community as a whole; it is the means by which the political community organizes its public life. The law not only formally constitutes—establishes in its constitution—the governing power of the political community, law also in that sense constitutes the community. It is through the law that the community exists as an integral unit over time, and through law that the community speaks and acts. While the law’s doings always involve acts and doings of individuals, these individual acts count as acts of the community in whose name they act and speak. But individual acts count as acts of the community, they speak for the community, only if they are undertaken subject to the discipline of collaboration.
Collaboration and Conflict
However, observers of the practice in many legal orders are likely to find implausible this talk of collaboration as a core feature of law’s discipline. Disagreement, dissent, conflict seem to be built into the ethos of, or at least widely tolerated in, the practice of law. De legibus disputandum est. In many legal systems, it occurs not only in judicial conference out of the public eye, but in published opinions of the courts. Also, in some legal orders, published dissents can play an important role in the development of law over time. Christopher Kutz observed,
Judicial behavior ranges from the extremely collegial to the strategic to the autarkic… [A]s an actual social process, judicial behavior seems better explained as an attempt to further individual substantive views of the good in a complex strategic environment, than as an attempt to reflect some prior agreement.
Of course, some of this disagreement may be due to the failure of participants to master its discipline, or to their ignoring or even seeking to subvert the discipline. But conflict seems more pervasive than this response can plausibly explain. We need a better explanation. The explanation of conflict lies in the fact that disagreement is not always a sign of dysfunction of the system, but rather a sign that it is functioning well.
Samuel Pufendorf, speaking for a long tradition of legal theorists, argued that the “Noise,” “Confusion,” and “jarring Dissonance” of ordinary life in the political community is “compos’d and sweetened by Law, and turns into a musical Agreement.” It is true that law addresses the noise and confusion of public life in political communities characterized the fact of pluralism. But, as we have seen, law seeks to do so, not by silencing or displacing disagreement about matters of deep and important significance for the community, but by domesticating and disciplining it. Law provides a form and forum for carrying on such disagreement in a way that respects each of the disputing parties. It does this, moreover, not by enforcing sweet agreement on all the parties, but rather by orienting public debate to participation in its distinctive discipline. And this discipline, while governed by a regulative idea of consilience of competing understandings, does not rule out disagreement. Law promises not sweet musical agreement, but sweet dissonance.
Collaboration in law’s discipline does not insist on consensus either a quo or ad quem; rather, it requires mutual responsiveness and mutual support. The specific nature of this responsiveness and support depends on law’s distinctive normative practice. Two features of law’s discipline call for broad toleration of disagreement and conflict. De legibus disputandum est is not simply a fact about what happens to go on or go wrong in legal practice; it is core feature of law’s discipline. This is so for two reasons.
First, the argumentative character is essential to law’s discipline. It is an institutionalized practice of vigorous, critical and self-critical argument. Mutual responsiveness is a matter of engaged argumentation. Interpretations must be understood as interpretations of a common practice, but all interpretations are grounded in argument, and challenges to interpretations are met appropriately only by further argument. The practice is a matter of offering interpretations of legal materials, but this activity is kept honest through the demand for demonstration of support and liability of all interpretations to challenge. Of course, consensus can be engineered by many means—by various forms of non-deliberative force or manipulation—and consensus, if too easily won, is a failure, a sign of dysfunction, of the practice. Consilience in law’s discipline must be achieved by argument. Mutual responsiveness is a matter of engaged argumentation; the exchange of argument, and hence disagreement, is the life-blood of consensus properly sought and achieved in this discipline.
Second, deliberative collaboration requires participants to take responsibility for their participation. Their responsiveness is owed to other members of the team. This responsibility has a distinctively moral dimension in law’s common practice, in view of the circumstances in which law operates, the interests at stake, and the purposes that law typically serves. Law’s discipline mobilizes personal moral responsibility and this shapes the nature and limits of the collaboration it requires.
Judges speak for the law and the community regarding matters where the moral stakes are high. They depend on their understandings of law to warrant or oppose exercises of governing power, including the use of coercive force; the ordering of the lives of subject of the law; and the distribution of benefits and burdens in the community. Their decisions and actions often have great moral significance. They are not merely actors in a role, a mechanism by which law does its work; they are responsible moral agents. Hence, they are personally and morally implicated in their activities. Thus, they must take personal responsibility for their decisions and actions, and the deliberations from which they proceed.
When one deliberates within the law’s FPP perspective, one does not do so apart from or outside of one’s personal perspective; but rather FPP is a part of one’s overall perspective. One deliberates and acts from this FPP perspective as an individual, responsible moral agent. Thus, responsible moral agency requires that judges and all others who participate in law’s discipline integrate its normative implications into their overall moral deliberative perspective.
But, then, judicial collaboration must not compromise this personal responsibility. It must not call for capitulation to the understandings of others, subordination of one’s views to those of others, neither does it permit imposing personal understandings upon others. Collaboration calls for responsiveness in the manner appropriate to and called for by law’s discipline, namely, partnership in the common task of working out law’s normative guidance by means of discursive, argumentative engagement. Thus, taking personal responsibility for one’s deliberations and the actions based on them encourages challenging, rather than deferring to, the views of others where they depart substantially from what one, in one’s best good faith judgment, takes to be the best understanding of what “we” are doing and have done.
Finally, I must make two points of clarification of the last point. First, because the law engages rather than displaces the moral agency of law’s officials, circumstances may arise in which officials face conflicts of conscience. The law may have gone so badly wrong that there is no way for a judge or other interpreter of the law to find a reading of the law that is both consistent with the institutional facts and can be supported and enforced by a person of sound moral conscience. In such cases, officials bound by role responsibilities face a moral dilemma. They cannot participate in the practice according to the rules of its discipline and, in good conscience, take personal responsibility for decisions within this fundamentally distorted legal practice. They might manipulate the powers at their disposal to push the law in a morally better direction, doing so either explicitly or under some disguise; however, in doing so, they no longer act as good faith participants in the practice. They do not fulfill their practice responsibilities even as they meet more pressing moral demands on them. They act outside the law to change it.
This is not to say that, in such a case, violating their official responsibility is not justified on moral grounds all things considered. The price of law’s mobilization of the personal responsibility of those it invites to take up its discipline is that the personal responsibility of participants may demand actions not warranted by that discipline. Law’s discipline only mobilizes, it does not colonize the personal responsibility of its participants.
Second, I have argued that it is a distinctive feature of law’s discipline that it is in a variety of ways institutionalized. Thus, while collaboration itself does not entail deference to the opinions of others or the group, principles within a given legal order may define distinct official roles and hierarchies of authority for them and, consequently, prescribe patterns of deference. Just as collaboration in law’s discipline is tempered by the equally important demand that the law offer practically intelligible normative guidance, so too collaboration is tempered by law’s essential institutional realization. The precise shape that mutual responsiveness and mutual support must take in any given legal order is determined in part by the intra-legal principles of organization, that is, by constitutive principles of law.
Thus, while the rule of law prohibits absolute deference of some participants in the legal practice to others, the unavoidable and welcome tension between deference and dissent is likely to be resolved in different ways for different participants in the practice. The ways in which different participants contribute to the common work of the practice will vary significantly depending on their roles and institutional responsibilities. It is reasonable to think that the responsibilities of collaboration may be greater in at least one respect for those whose decisions and actions carry greater weight in the overall determination of the substance of law’s normative guidance. This leads us to consider a very different problem for the account of law’s discipline I have been defending.
Artificial Reason and the Problem of Congruence
The Problem of Congruence
My proposal for understanding law as artificial reason rests on two premises: that law’s distinctive modus operandi is to provide normative guidance to law subjects, reasons by which they can direct their own decisions, choices, and actions; and that law does this by making available and modeling a distinctive discipline of public practical reasoning. It is obvious that the law cannot effectively guide action and especially cannot provide a public language of deliberation for the political community at large unless it is accessible and intelligible to members of that community. Congruence of law and the deliberations of ordinary legal subjects is essential to law’s guidance.
It is tempting to think of this relationship between the law and law subjects on analogy with radio communication. Successful communication, on this model, depends on the message (its content, form, and packaging); capabilities of “receivers” (their natural capacities, training, access, and interests, etc.); and the mode and medium of transmission (the clarity of transmission, noise, etc.). With this model in mind, the problem for law as I have proposed to understand it seems clear. Successful communication of law faces serious obstacles due to the obscurity of the messages, to defects in the medium of transmission and to insufficient receiver capacities of those who are meant to receive and act one it.
Critics plausibly argue that law as we know it is a vast complex of obscure rules that only the most dedicated student can master, and even they are likely to master only portions of the whole. Moreover, the discipline is institutionalized and dominated by a professional class. This, critics argue, guarantees failures of congruence. The discipline, after all, is “artificial,” a craft, specially learned and habituated, and dominated by specialist jargon. It is the province of a professional elite, the domain of jurispiriti, protectors of a gnostic tradition. Jeremy Bentham, the tireless critic of English Common Law, called it sneeringly, “Judge and Co,” which makes the law complex, unintelligible, and detached form the practices of ordinary life in order to drive up the demand for its services.
The problem of congruence looks deep. Not only is law likely to fail to be congruent with the ordinary deliberations of law subjects—that the congruence thesis is false—but worse, critics argue, it is guaranteed to fail by features deep in its nature. It cannot succeed in bridging the gap between custom in foro and custom in pays.
However, this objection, while serious, can be answered. We must not deny that law can, and perhaps too often does, fail to bridge the gap between the law’s declarations and the public’s uptake. Congruence is not a necessary condition of the existence of law, but it is a fundamental regulative ideal by which performance is measured. Legal orders can fall short of this ideal, and we must be mindful of the causes or conditions of its falling short. But we can resist the more radical claim that law—understood as “artificial reason”—cannot meet the congruence demand. To do so, we need a more nuanced idea of the kinds of guidance that law can provide and the kind of congruence needed for genuine normative guidance. This project requires more than the resources of legal theory alone can provide. We must join hands with those who investigate the sociological dimensions of law.
Congruence and Guidance
Congruence between law and the ordinary lives of law subjects is a complex matter. It comes in degrees. The regulative ideal defines a threshold of “substantial congruence;” below that threshold law fails to a greater or lesser extent. We, of course, may aspire to secure congruence beyond the threshold. There are several dimensions of this scale. We can ask how many of the subjects of the law—officials or general population—are engaged, have some grasp, of the law. We can also ask how much of the body of law is understood.
Critics and defenders of law’s modus operandi alike seem to assume that congruence entails that the content of legal directives must be mirrored in the beliefs of law subjects. But this seems simplistic and, for our purposes, unnecessary. For the artificial reason of law to provide guidance we look for continuity of practical reasoning between that of law’s discipline and the ordinary practical reasoning of members of the political community. What is necessary is that the guidance law gives to law subjects is generally intelligible, not that they are able to pass a bar exam. The guidance offered is less like an explicitly uttered mandate, and more like a substantial contribution to a publicly accessible medium, a commons of reasons and a framework for assessing them on which law subjects can draw for their quotidian deliberative needs.
Consider also the modes of normative guidance deployed by law. The most familiar mode of guidance is the directive, modeled by commands. In this mode, law lays out prescribed classes of actions and expects (and often incentivizes) behavior to conform to them. However, law often guides not by explicitly directing action, but by giving normative significance to certain actions, activities, roles, and relationships. In the previous lecture I called this the constitutive mode of normative guidance. Law defines normative statuses or competences; it accords to actions meaning as claims against or responses to the actions of others, as falling within or outside the pale of the relationship, or calling for, authorizing, or blocking certain responses. Law constitutes relations between employer and employee, marriage partners, family members, municipal citizens, and the like, and enables the creation of networks of such relationships, some of which are further integrated into discrete institutions and systems of institutions.
In this way, the law provides the infrastructure for meaningful interaction. To represent constitutive guidance on the model of a command distorts its role in practical reasoning. For in this mode, law guides not by supplying explicit premises of deliberation, but by providing the context of or horizon within which deliberation takes place and from which actions, persons, and group have their practical significance. Also, law in its constitutive dimension underwrites, reinforces, and more or less subtly shapes social norms and practices that also, in turn, contribute to this deliberative medium, this commons of the mind. Law’s medium of communication may, at some points, congeal into explicit social rules, norms, or values, but often it provides horizons of understanding, known or only sensed arrangements, within which people interact and make sense of the social world around them.
In political communities with mature legal systems, we are likely to find a significant amount of interdependence between the formal norms of law and informal social norms, between formal law and informal social practices. Some social practices, social theorists tell us, are hardly intelligible apart from the laws that shape them—marriage, for example. Law often provides the principal categories that shape social life. Even when ordinary people are not familiar with legal doctrines or rules in all their detail, their habits of mind are influenced by existing law and its thought-structuring categories. Even when practices are not formally legal, and its rules are not enforceable in courts, law provides concepts, terms, and traditions organizing the thought and public interactions of members of the political community.
In like manner, law leans heavily on social practices to give meaning to its principles and to ground its rules in the public’s understanding. Social theorists tell us that, ordinary people going about their daily business give flesh and meaning to what would otherwise be abstract forms. Law often operates in the shadow of indigenous social orderings. People living and interacting in law-infused situations and relationships introduce the texture of concrete social life into the context of the law. Law invented at the top is often challenged, transformed, re-invented in local practices.
Mediation
How does or can formal law guide the deliberations of ordinary members of society? The answer is that, while it may do so on the “radio model” by means of direct communication of fixed rules which legislators expect law subjects to grasp and apply to their situations, this is not the only or even the main way in which it does so. Note that it is not necessary that law reaches all law subjects and, especially, it is not necessary that all law subjects have even a modestly secure grasp of all or most of the laws. After all, social transactions usually take place outside the formal domains of law and in service of objectives to which legal rules are only ancillary; moreover, people have other concerns than conforming their behavior to the law. A sufficient degree of congruence necessary for law’s effective normative guidance is possible even if law is accessible to law subjects only on a “need to know” basis. Guidance is achieved through a variety of mediations.
First, access to law for most law subjects is mediated through their participation in ordinary social practices of their communities and the medium of understanding, and horizons of social and normative meaning, to which the law and social practices reciprocally contribute.
Second, law subjects learn some of the law (that they need to know) through personal experience; for example, by applying for a driver’s license or getting a traffic ticket, buying or selling real estate, making a will, filing tax reports, and the like. They will also learn some through their interactions with officials and participation in public forums—law courts and quasi-legal institutions—that model law’s discipline of practical reasoning and provide opportunities for engaging the law. Sitting on juries is a common site for learning (a part of) the law and especially useful for seeing the law’s discipline in action.
Third, lawyers are key intermediaries. They provide knowledge of specific areas of law as this knowledge is needed. Law subjects may not have anything approximating a comprehensive grasp of the law, but may know enough of the basic categories and concepts to navigate successfully their quotidian activities and to know when they need to consult those with more expert knowledge. Thus, the professionalization of law’s discipline is not necessarily a threat to law’s project of providing normative guidance; in fact, it plays a crucial role in carrying out this project.
Thus, the possibilities for law providing at least minimally effective normative guidance include not only directly communicating explicit directives to each individual law subject, but also contributing to the practical medium, the commons, that is regularly available to members of the political community and providing reliable and responsible intermediaries that bridge the gap between them and the formal law and law proceedings. Law thus bound into the fabric of social life can give reasonably effective normative guidance. Substantial congruence is possible between law’s uttered guidance and those to whom it is addressed.
Shortfall
Of course, we must acknowledge that the law does not always succeed in bridging the gap between its uttered guidance and the deliberative activities of law subjects. The gap may be so great that it renders the law dysfunctional, at least with respect to a substantial portion of the political community. When this is true, law fails; it fall short of the threshold of congruence demanded by its own modus operandi (and, incidentally, the rule of law).
Law can fall short in many ways. I cannot offer here a complete catalogue of the ways it can fall short. The law may be practically irrelevant; it may fail to be in force in some substantial portion of the community that it purports to govern. Or the law’s influence on the behavior of some of those it purports to govern may be reduced to mere force. I will mention two such failures that will illustrate the point.
Polynomy. An example of the first kind of failure can be found in colonial polities in which large sectors—usually indigenous communities—are largely untouched by the formal, imported state legal system. Failing to penetrate the networks of social practices and arrangements of these sectors, formal state law may have little or no impact on the interactions of people in these sectors. From their point of view, the formal law simply does not count; it is irrelevant to their daily lives. This may prove costly to them from time to time; it may be an obstacle to their aims or interfere with local arrangements and interrelations; state officials of the formal law may not smile on their indifference. But these people may only view its ministrations as an external, hostile force. Where this is true, it may not be the case that there is no law in their community, that law is absent, but rather that there is an alternative center or source of law that exists alongside formal, state law. This is a case not of the complete failure of law, but of polynomy—multiple, competing legal orders.
Alienation. A rather different form of failure sometimes exists that does not involve competing legal orders. The law may simply fail to extend its protections in whole or in large part to their members.
Euripides once said that when law is securely in place, “he who is weak and he who is rich have equal justice: the weaker ones may speak as ill of the fortunate as they hear of themselves, and a lesser man can overcome a great one, if he has justice [i.e., law] on his side.” However, often the law does not work this way; rather, it works for the powerful and against the powerless. Recognition of this disconnect may reasonably breed cynicism. Following Paul Gowder, we might call this condition “legal alienation.”
When ordinary people see that the law does not count when the powerful impose their will on the powerless, they may be expected to ask why should it count for me. Political scientists often ask the question, why would those with power submit to the constraints of the rule of law? But there is another, deeper question that partisans of the rule of law must address: Why do, would, should ordinary people submit to law? Why should it count for them? Given what they see of the way the law works—whom it benefits and whom it doesn’t, who can make it work to their benefit and who cannot—they may feel they have no skin in the game.
Law may fail by creating, fostering, or merely ignoring the conditions and causes of alienation. Legal alienation can have a variety of sources. Wealth and social, economic, and political power may be distributed so unequally that, regardless of the form of the laws, and the promises of its institutions, ordinary people may lack the resources to engage with it or use it in their daily interactions. Where this is true, when ordinary citizens lack the resources to make themselves heard, to mobilize the law to provide its promised protection and recourse against the powerful, the law will appear to them as nothing more than other people’s power, “a hostile external force that must be monitored because of the threat it poses. Statements of legal rules are just utterances about stuff that powerful people will do to you if you make them mad.”
Conclusion
I conclude that, although the problem of congruence is a very serious one, it is not a reason to abandon the Normative Guidance Thesis or the view that law is usefully seen as a practiced discipline of public practical reasoning, a form of artificial reason. Rather, it is a problem for those of us who wish to protect and enhance the effectiveness of law. Even more it is a task for us who are committed to the ideal of the rule of law. For the rule of law, I have argued elsewhere, takes as its organizing aim protection and recourse against the arbitrary exercise of power, and it takes law as its means of realizing this aim, law understood as practiced discipline of public practical reason.
Although, if the first half of my argument in this lecture is correct, we should not be distressed if the widespread access to and exercise of law’s distinctive discipline does not lead to consensus—“sweet social harmony”—we should be distressed if a large gap yawns between the activities of a the legal elite and the resources of practical deliberation available to a substantial portion of members of our political communities. We have reason to welcome disagreement in law, but to work hard to prevent alienation and apathy. Robust rule of law in our political communities depends on it.
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.