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Law as a leap of faith

John Gardner interviewed by Richard Marshall.

John Gardner is a big beast of legal philosophy who takes the label ‘legal positivism’ mainly to problematize it, who thinks deeply about the ‘chicken and egg’ puzzle, who finds Dworkin’s idea of constructive interpretation bewitching but mistaken, who thinks it’s misconceived to think judges can only be constrained by rules in their decisions if the rules pre-exist the decisions, who has much to say about the role of customary rules, who asks whether there can be a written constitution, who defends the Razian thesis that the law makes moral claims and reconciles it with the possibility of immoral laws, who writes about law as a leap of faith and connects Kelsen with Kierkegaard and says rape is wrong as sheer use of person. Who loves ya baby?

3:AM: What made you become a philosopher? And why legal philosophy?

John Gardner: I started by studying law, which is an undergraduate subject in the UK. I was lucky enough to study law in the intellectually liberal environment of Oxford, where my tutors encouraged wide-ranging critical reflection and took a dim view of rote learning (except as a necessary evil come exam time). I think Nicola Lacey was the person who gave me the initial support I needed to develop serious philosophical interests. As well as teaching me philosophy of law in the most inspiring way, she sent me to Jonathan Glover for moral philosophy tutorials. Jonathan in turn knew just how to deal with the knee-jerk value-scepticism of a 19-year-old know-it-all law student. He tormented me with the nihilistic implications of my views until I couldn’t take it any longer. I have been an in-your-face moral realist ever since. One more success for aversion therapy.

At that point I was still pretty sure that I was going to end up practising law. So I took the view that I should study as much philosophy as possible while I still had the time and the access. As a masters’ student in the Oxford Law Faculty of the mid-1980s, studying for a degree so highly prized in the English legal profession that nobody would care what I actually learnt, I was lucky enough to be able to develop my philosophical interests and skills in some more advanced philosophy-of-law courses laid on by Joseph Raz, John Finnis, and Ronald Dworkin. I also attended in a more recreational way (I was such a geek) the seminars of Amartya Sen, Jerry Cohen, Derek Parfit, Steven Lukes, David Miller, and many other local philosophical luminaries. The seminars jointly held by Sen, Cohen, Dworkin, and Parfit were known among the students as ‘Star Wars’ – that name helps to capture both the mood of the meetings and the spirit of the age in which they took place.

I was irreversibly contaminated by all of this and when I headed off to London to qualify as a barrister the following year, my heart wasn’t in it. I soon contrived to get back to Oxford for a doctoral degree. I was helped in doing this by the fact that I had meanwhile won, as it seemed to me by lottery, a ‘Prize Fellowship’ at All Souls College. This gave me decent funding and fascinating colleagues. The indefatigable Tony Honoré, with whom I still teach to this day, was my college mentor and my thesis supervisor. Later, on Honoré’s retirement from official duties, Parfit took over the former role and Raz the latter. My thesis was about moral and legal responsibility. It was all over the place. Bad for my progress with the degree, but good for my philosophical education. My examiners (Bernard Williams and Antony Duff) smiled on the resulting artefact and let me out into the world as a moral and legal philosopher.

It’s just occurred to me that maybe you didn’t want the story of who I worked with, how I was funded, what I was occupied with before I became a philosopher, and all that David Copperfield kind of crap. Maybe you wanted to hear about the philosophical puzzles that kept me awake at night and the ideas that inspired me. Alas, I forget. I only know that there were a lot of them, and that I had a massively exaggerated sense of how many of them I could tackle and how quickly.

3:AM: You’re a legal positivist aren’t you? You wrote a famous paper about it – 5 1/2 Myths. What’s at stake?

JG: For people who like that kind of label, that is the kind of label they like. I help myself to it mainly to problematize it, and to some extent to poke fun at it. ‘5½ Myths’ was a pedagogical exercise. I noticed that my students associated ‘legal positivism’ with all sorts of only very loosely connected propositions. I also saw that articles in the law journals often treated ‘legal positivism’ as an all-purpose bogeyman. I didn’t care and still don’t care who is a legal positivist and what assortments of things people who are called by that name happen to believe. But I did care, and still care, about the sloppy herding together of a number of only very loosely connected propositions to create an all-purpose bogeyman. So in ‘5½ Myths’ I set about what I later came to call the ‘unbundling’ of the propositions in question. Along the way I endorsed what I identified as the core teaching of the legal positivist tradition and hence what I called, for the purposes of the paper, the ‘legal positivist thesis’ or ‘LP’. This is the thesis that law is made by people. In any legal system, the law of the system is what the relevant people made, never mind whether that is the law they ought to have made.

What is at stake? A lot. ‘5½ Myths’ sets out to show that there are many implications that LP does not have, and many puzzles, therefore, that it does not throw up. But there are of course many other puzzles that it does indeed throw up. Here is one. Once we endorse LP we will need an account of what makes an person a ‘relevant’ one, or, in the terminology favoured by H.L.A. Hart, an account of how one might qualify as a ‘legal official’. One of the great puzzles of legal philosophy, which LP foregrounds, is what Scott Shapiro calls the ‘chicken and egg’ puzzle. Legal officials make law, says LP. But law also makes legal officials. How is it possible for law to make its own makers? Hart had an answer, which I think is broadly right. (Shapiro has a rival one, which I think is broadly wrong.) Hart’s key move, in my view, is to recognise that not all law is made by the relevant people’s attempts to make it. Often law is made by accident, including by people who are trying only to follow or apply law that they take to exist already. If they are the relevant people they can sometimes change the law by misunderstanding it. From this one can build a picture of how they come to be the relevant people. They become the relevant people by treating each other, mistakenly, as already being the relevant people. It is a collective and accidental form of self-appointment. Hart called the gradually mutating customary norm by which officials recognise each other as officials (and hence become the officials of a system of norms in which they are so recognised) the ‘ultimate rule of recognition’ of a legal system and he claimed, I think rightly, that every legal system necessarily has at least one of them. (He sometimes said ‘one and only one’, but that was in my view a slip.)

The chicken-and-egg puzzle is just one of many puzzles that are thrown up by LP. Many people interested in the law think such puzzles are mere diversions, like Sudoku. After a recent lecture she gave at Boston College, my former tutor Nicola Lacey nicely raised some very wide-ranging doubts about LP and propositions like it (namely, those which are supposed to be necessarily true of all legal systems). She wondered out loud : ‘Is it just philosophy? In which case, how do I explain to my students that they should be interested in it, except as a very fascinating intellectual game?’ My experience is that if people don’t have philosophical interests, there isn’t much to be gained by trying to sell philosophy to them as ‘relevant’ to something else that they are interested in. The same is true of history, maths, astronomy, and other intellectual pursuits. Either they grip you or they don’t. Nevertheless, as someone who does have philosophical interests, I find that my views about the nature of law have many repercussions in other parts of my work.

To give just two examples. The view that I defend in chapter 5 of my book Law as a Leap of Faith (2012), according to which law makes moral claims, is the key to understanding why and how the problem of moral luck comes up in the law. I showed the connection in a paper called ‘Obligations and Outcomes in the Law of Torts’ (2001), And the view I align myself with in ‘5½ Myths’ (chapter 2 of the same book), according to which the legal invocation of moral standards does not turn those standards into legal standards, turns out to be central to understanding the workings of many criminal law defences. I explained how the two are connected in a paper called ‘Justification under Authority’ (2010). People who are not interested in philosophical inquiry into the nature of law may not be very interested in philosophical inquiry into these specific areas of legal doctrine either. But there is no doubt that the general and the specific are closely connected at many points. As I put the point in Law as a Leap of Faith, chapter 11: If there is no general jurisprudence, then there is also no special jurisprudence (e.g. philosophy of criminal law or philosophy of private law).

3:AM: Given that you oppose ‘package deal approaches’ to legal philosophy that get to grips with issues by setting up positions in adversarial terms – such as ‘Hart vs Dworkin’ or ‘Legal positivism vs Natural Law’, what alternatives are you ruling out with Legal Positivism?

JG: The main rival view I am ruling out is that, in at least some legal systems, the law is not straightforwardly made by people. On this view, what counts as law can depend, at least in part, on its merits – moral or otherwise.

This rival view has enduring appeal and various aspects of legal life combine to lend credibility to it. The one I will mention here is the prevalence of judicial interpretation, which is often conducted, at least nowadays, on the footing that judges should read a legal text as succeeding in doing the valuable things that it was designed to do (sometimes known as ‘purposive’ interpretation). In Law’s Empire, Dworkin brilliantly recasts purposive interpretation as a species of a larger genus that he calls ‘constructive’ interpretation. If a legal text sometimes means what it would be better for it to mean by some standard, argues Dworkin, then it cannot be the case that the content of the law is whatever content the authors of the text gave it. They did not have the power to make law, the content of which is worse than it would be better for it to be by the relevant standard. This is a bewitching idea. But it trades on the mistaken view that interpreting a legal text is finding meaning that it already has at the point at which it is presented for interpretation. In fact, judicial interpretation may give new meaning to a legal text – hence new content to the law – and may do so on moral grounds. When that happens the legal text has whatever new meaning the judges now give it thanks to their new interpretation of it. That they give it that new meaning on moral grounds does not alter the fact that its meaning is the meaning that they now give it, never mind whether that is the meaning they ought to have given it. Which is what LP says.

No package deals in sight here! Plenty of other things that Dworkin says are right. He is absolutely right to commend constructive interpretation if by that he simply means that judges should interpret legal texts with an eye to making the law that they contain morally better than it would be on other interpretations.

3:AM: Is it because Ronald Dworkin doesn’t acknowledge that customary laws and case laws are man-made that you disagree with him?

JG: I can’t recall what might at first have motivated my disagreements with Dworkin. It is true, however, that part of the original impetus for Dworkin to introduce principles (which he claims to be LP-inconsistent legal norms) into his analysis of the nature of law was to explain features of legal reasoning that I prefer to explain in LP-consistent ways. I have already mentioned customary law so let me say a word about case law. And I have already mentioned Dworkin’s 1986 work on interpretation, so let me reach back to his earlier conceptualisation of his position in terms of ‘legal principles’.

Dworkin’s original argument has something like the following shape. (1) Judges who are faced with what he called ‘hard cases’ have to find a moral justification for what they already regard as law, and they apply that moral justification to resolve the ‘hard case’. (2) When they do so, they do not reach outside the law. So (3) some law is supplied (its content determined) by the moral justification for it. There are three claims here. I have some quarrels with the first and the third. But the relevant quarrel here is with the second claim.

Why should we think that judges who identify these principles are not reaching outside the law? Dworkin gives several reasons. Some are wildly question-begging (e.g. that if judges were reaching outside the law, that would be bad.) But a reason that law students often find attractive is that judges who reach for these principles almost always talk as if they are only applying the law and not changing it. Judges often say that the ‘hard case’ before them is already covered by the law and calls for no legal innovation. One possible response to that fact: Well, judges would say that, wouldn’t they? They have every reason to fib about what they are doing, given that there are so many people like Dworkin who wrongly think that judges’ reaching outside the law would be bad. But one need not accuse judges of fibbing in order to understand what is going on in an LP-consistent way. One can point out that legal changes can be made accidentally by judges who reasonably but mistakenly imagine that they are only applying and not changing the law by their decisions. That is why they say they are only applying and not changing the law by their decisions.

3:AM: Do judges rely on rules, or do they just make a decision that is much looser than rule following. Didn’t Richard Posner suggest something like this, that the law is more untethered than is supposed? Isn’t this how opponents to positivism criticize the position, that if law is just man-made it is arbitrary?

JG: A common view is that judges can only be constrained by rules in their decisions if the rules pre-exist the decisions. This is a misconception. There are (at least) two different ways in which decision-makers can be constrained by rules. First, they can be bound to apply an existing rule in making a given decision. Second, they can be bound to explain or show what the reasons for their decision are in such a way that those reasons are capable of being understood and used as a rule from then on. The first constraint, when it applies, distinguishes judges from legislators. But it often does not apply, either because there is no existing rule or because the judge is not bound by the existing rule. That is when the second constraint comes into its own. It is what distinguishes judges from arbitrators. Arbitrators need not bring their decisions under rules, even under new rules. Judges, however, are bound to do so.

‘Arbitrary’ is sometimes used as a pejorative term meaning something like ‘capricious’ or ‘on a whim’. But arbitrators are paid to arbitrate, and in that sense to be arbitrary. This does not mean they act on a whim, still less that it is alright for them to do so. Like judges, legislators, and other makers of morally significant decisions, they should make their decision on the strength of adequate reasons. What ‘arbitrary’ means (applied to arbitrators) is simply that the adequate reasons need not be organised into a rule that is capable of being used by future arbitrators to decide further cases. Each case can be arbitrated, as it is sometimes said, ‘on the facts’. Not so in a court of law. A judge in a court of law, to repeat, is bound to organise her reasons for decision into a legal rule. That is what tethers her even when it is up to her to determine what the legal rule in question is going to be.

Dworkin made much of the fact that judges use principles as well as rules. The remarks I just made assume that principles are also rules, albeit possibly more abstract ones or less fully-formed ones or less decisive ones. Actually, I don’t really mind whether we speak of principles or rules here. So in a more Dworkinian idiom I would be happy to say: Judges, unlike arbitrators, are constrained by the fact that they must explain or show what legal principle (either existing or created for the purpose by them) underpins their decision.

Do opponents of LP really say that ‘if law is just man-made it is arbitrary’? I have not encountered that particular criticism. It is clearly fallacious. It confuses the question of what qualifies as law (LP says: only man-made norms) with the question of whether the makers of a particular law or body of law had enough reason to make it. As I have just explained, LP allows one to insist on the highest rational standards for intentional law-makers to follow. All it adds is that, if the law-makers fail to live up to those standards, unfortunately one still ends up with law (to be precise, yet more crappy law).

I have a feeling that I may have been repeating myself a bit, making the same point in several ways. The point is that many people are rightly interested in how judges set about making law, which is often by argument about the merits of the law they are making. But it is also possible to be interested in why what judges make counts as law. The LP-compliant answer is that it counts as law in virtue of its having been made by the right kind of person, and irrespective not only of its merits as law but also of the merits of any argument that went into making it.

Have I made that point that in enough different ways now?

3:AM: So let’s go back to Hart’s ‘rule of recognition’. The notion makes a lot of the idea of ‘social rules’ and ‘customary rules’. Given the fluid nature of modern social reality, how are we to make sense of these? Who is in charge of saying what these are given that our big cities are now full of so many different communities all with a host of different social rules and customs? How does the law know which ones to use? Given that most judges tend to be disconnected from the ordinary folk, how do they know anything about these social rules and customary rules?

JG: As you say, different populations may have different customs, even in the same place. Some are customs of wider populations and other are customs of narrower populations. Hart’s explanation of the nature of law emphasises this very point. He argues that the ultimate rule of recognition of a legal system is supplied by a narrowly elite custom, the custom of a population of officials. It is a custom of mutual recognition whereby they all treat each other as officials. Each official purports to follow what he or she takes to be the existing official custom. Over time officials make errors in what they take the official custom already to be. Occasionally they wilfully misrepresent the custom. Either way, if their error or misrepresentation takes hold in the official population, the custom is changed.

One implication of this is that an ultimate rule of recognition of a legal system is typically indeterminate, at any given time, in respect of at least some of its applications. Of course all rules are indeterminate in respect of at least some of their applications; I don’t mean to deny that. What I mean is that there is a special indeterminacy that comes of the fact that an ultimate rule of recognition is a customary rule. It is in a perpetual state of flux as parts of the official population fall behind with changes in the purported rule-following behaviour of others. Some people think that this is somehow a problem with or objection to Hart’s explanation of the nature of law.

Some were drawn to ‘legal positivism’ by the belief that it would cleanly answer, if not every question of law, then at least the legal question of where to look for an answer to any question of law. But let me disabuse you of that expectation right away. It is absolutely no part of the sales pitch of legal positivism as I understand it, or as Hart understands it, that it offers a clean answer, in every case, to the question: Is that the law? It is not even part of legal positivism’s sale pitch that it offers a cleaner answer to that question than do anti-positivist alternatives that make the identification of law depend on moral considerations. If the limits of law are indeterminate – if there are at any moment rules of which it is neither true nor false that they are rules of law – then an explanation of law’s nature needs to capture that fact. I regard it as a positive virtue of Hart’s explanation of the nature of law that it shows one very important source of such indeterminacy in the very foundations of every legal system. It is the fact that every legal system has customary rules as its ultimate rules of recognition.

A more radical objection has it that the perpetual state of flux in these ultimate rules of recognition is also a perpetual state of fragmentation, inconsistent with their existence as rules. When half of the officials treat the rule as covering cases ABCD and the other half as covering cases BCDE (it is said) then it is not one customary rule with indeterminacies but two rules, neither of which is found in the custom of officials generally, so neither of which is capable of being the ultimate rule of recognition of a legal system. So (it is said) legal systems cannot have ultimate rules of recognition. A particularly sophisticated version of this objection is found at the start of Dworkin’s Law’s Empire. The objection, however, is misconceived. It rests on the thought that the identity-conditions for a customary rule are extensional. Hart goes to great lengths (which I have already summarised) to show that, in identifying a customary rule, the intensional has primacy. That is one thing he is trying to get at with his famous ‘internal aspect of rules’ move (not that he executes the move very well). Dworkin tries to outflank him here by suggesting that an intensionally-structured identity thesis could only succeed by relying on agreement among rule-users about the rationale for the rule, i.e. the reasons for having it and following it. That would be inconsistent with the prevalence among judges of what Dworkin calls ‘theoretical disagreement’. But this represents a misunderstanding of the nature of rules. They are capable of being regarded and used as reasons quite apart from the reasons for having them and using them. Hart is right to think that one and the same rule may be treated as a reason for action by two or more agents even though (a) one of them treats the rule as applying to cases to which, for the other or others, it does not apply and (b) they do not agree at all about the further reasons for having and using the rule.

It doesn’t make sense to ask ‘who is in charge of saying what the customary rules are’. Once someone gets to rule authoritatively on what a rule says, it is no longer a customary rule. Now it is an authoritatively created rule that is merely based on a customary rule. The ultimate rule of recognition of a legal system is not authoritatively created and cannot be authoritatively created. Attempts may be made to formulate it (e.g. in legislation or in a judgment of a court) but the formulations of it cannot be more than mere commentary or gloss. An ultimate rule of recognition exists in the actions of members of the relevant population, whatever they may say about it. If what they do and what they say differ, it is what they do that counts.

3:AM: You make much of this in what you say about Constitutions. So what’s the link between these rules of recognition and Constitutions?

JG: In a paper called ‘Can There be a Written Constitution’, which is chapter 4 of Law as a Leap of Faith, I have some fun with the possibility that ‘written constitution’ is an oxymoron. You can probably imagine how I set this up from what I just said. Many think that, where there is a written constitution, the rules in the written constitution comprise or include the ultimate rules by which legal officials are identified. If Hart is right then an ultimate rule of recognition of a legal system cannot be authoritatively stated. It must be an unwritten rule. We can draw any of the following three conclusions: (1) Hart is wrong about the ultimate rules of recognition of a legal system; (2) there cannot be a written constitution; or (3) the rule of recognition is not, at least in the case of written constitutions, a rule of the constitution. Many writers have opted for (1), accusing Hart of being excessively influenced by the British situation, where the constitution is unwritten (or uncodified, at any rate). Hardly anyone has considered (2) so that is where I start. But of course I end up, after quite a lot of hard labour, at (3). I argue that where there is a written constitution, there is an ultimate customary rule of recognition, not in the written constitution, that says: ‘Follow the constitution!’ or ‘Bow to the framers of the constitution!’ Some people think that these two possible rules come to the same thing, that (for an LP-endorser) ‘Follow the constitution!’ must mean ‘Bow to the framers of the constitution!’ I devote some energy in the paper to showing that this is a mistake, that even for a written constitution following the constitution is not exactly the same as bowing to those who enacted it.

This reminds me to say that one problem on which my work hardly touches is the problem of identifying the correct mode of or technique for interpretation to be used by courts. I do not believe that this is a philosophical problem. It is an ordinary problem of politics. How ‘originalist’ or ‘textualist’ judicial interpretation should be depends on how reactionary judges should be. Many talk as if it is the other way round. Thus reactionary judges, and their reactionary supporters, like to roll out ‘theories of interpretation’ on which their reactionary positions are supposedly premised. To which I reply: that ‘theory of interpretation’ you are offering is really the conclusion, not the premise; conversely ’let’s be reactionary’ is the premise, not the conclusion.

A further step to go with this line of thought: If we value the checks and balances of political pluralism (government and opposition and independents, upper and lower houses, legislature and executive, etc.) we should value, on the same basis, pluralism of judicial approach. The common law doctrine is that the three main canons of statutory interpretation (the literal rule, the mischief rule, the golden rule) are permissive. Judges get a free choice about how to interpret, within these three rival approaches, subject to binding interpretative precedents. This seems eminently sensible to me. All three canons have their rival advantages. So why not take the same view with constitutional interpretation, e.g. in Canada or the United States? In one way the resulting legal indeterminacy is healthy. It makes it harder for those who lay down written laws to predict what exactly their laws will achieve, and that tends to instil a measure of caution or humility in law-makers who may otherwise be too keen to leave their indelible stamp on the world. It is part of the ideal of the rule of law that politicians and their apparatchiks must be kept under control by the law, even by the law that they themselves made. (Former British Home Secretary David Blunkett is once reputed to have said (to his paramour) ‘I know the law. I made the law.’ That remark, if correctly attributed, shows a politician drunk on power and in need of a harsh lesson in humility at the hands of the courts. Alas his repeated encounters with the British and European courts showed him to be, in this respect, incapable of learning. Like a recalcitrant teenager, his arrogance only grew.)

3:AM: Joseph Raz argues that ‘the law’ is moral. You defend this view don’t you? Can you say what the argument is and how it handles the idea of, say, laws that are blatantly immoral, such as those of a monstrous regime? Does the position require a particular view of morality to work, such as anti-realism?

JG: I would hesitate to summarise Raz’s views as you do. The thesis that ‘the law is moral’ is so vague that, on one reading or another, it could be attributed to almost any philosopher of law known to me. I think the thesis of Raz’s that you may have in mind is the thesis that the law makes moral claims, i.e. that legal statements are purported moral statements. I do indeed defend this thesis, in chapter 5 of Law as a Leap of Faith. I expend quite a lot of energy there reconciling the thesis with the possibility of immoral laws. My main point is that claims can be false, and can also be believed to be false by those who make them. Often the law makes false moral claims. Sometimes it makes insincere ones. Many people (most recently Scott Shapiro) argue that the law can be morally misguided, but they doubt whether it can be insincere. Theirs is known as the ‘moral aims’ thesis, and it makes room for accidental immorality on the part of the law. The ‘moral claims’ thesis makes room in legal life for an additional form of immorality in the form of intentionally immoral laws that are made or applied under the pretence of moral justification. Such laws may be associated in people’s minds with the Nazis and other depraved regimes. I am not so sure that the Nazis were just pretending. But laws made on moral pretences are shamefully common in contemporary democracies, where vote-seeking politicians pander to what they know to be the obnoxious views of their electorate, e.g by demonising asylum-seekers or welfare benefit claimants. In the UK right now there is a lot of this going on under the fake-moral guise of ‘fairness’. There are vulnerable people being legislated into destitution by ruthless liars.

Not all of this lying is lying by the law, however. We should contrast moral claims made in the making of law with moral claims made in the applying of it. I argue that the law makes its distinctive moral claim at the point of application. Moral claims made by legislators about the law they are making – e.g. spurious Tory claims to fairness – are not (yet) the claims of the law.

In these remarks the law is personified, and many people wonder whether that personification is in order. This has been the most challenging critique of both the ‘moral aims’ and the ‘moral claims’ thesis. Most of my chapter 5 is devoted to deflecting it. I argue that the law makes claims in a non-metaphorical way. It literally makes claims through the officials who represent it at the point of its application. I argue that making the law’s moral claim is part of what makes a law-applying official such that she speaks on behalf of the law. I illustrate the point copiously, most extensively from the judgments of Justice Holmes (a.k.a. Oliver Wendell Holmes) who is said by Dworkin to constitute a counterexample to the moral claims thesis. I show that Holmes is no counterexample.

As I said at the start, I am an in-your-face moral realist. So I hope that my views about law don’t presuppose or support any kind of moral anti-realism. Whether they are compatible with any kinds of moral anti-realism I don’t know. I am not the sort of philosopher who tries to make his positions as uncontroversial as possible by showing that they are compatible with falsehoods. I don’t think avoiding or minimising philosophical controversy is a valid reason for any philosophical move (unless one is playing some kind of philosophical Russian roulette and one’s life, or some other morally important matter, depends on one’s avoiding or minimising philosophical controversy).

3:AM: How do you counter claims that you and Raz conflate ‘what is important for a person’ with ‘is morally important for a person’ and that it makes sense to say that a judge is compelled by the law but not morally compelled by the law?

JG: I can’t say I have seen that criticism aimed at Raz. But some people have criticised me for making the following argument: (1) law claims to give reasons; (2) law regulates morally important matters; therefore (3) law claims to give moral reasons. That is clearly not a valid argument as it stands. Fortunately, it is also not an argument I made. My argument in the same neighbourhood was: (1) law claims to create obligations (a.k.a. duties); (2) not all obligations are moral ones; but (3) all obligations relating to morally important matters are moral obligations; (4) all the obligations that the law claims to create relate to morally important matters (if only because of the moral importance of the way law regulates them); therefore (5) law claims to create moral obligations. That argument is valid. The most vulnerable premise might seem to be (3). But I have yet to see a good counterexample. Prudential requirements cannot be a counterexample because they are not obligations. Requirements of etiquette or of games cannot be a counterexample because they do not relate to morally important matters. Or rather: when they do relate to morally important matters they also become moral obligations.

Am I not missing the most important and obvious counterexamples, namely legal obligations themselves? No. A legal obligation is, more fully spelt out, just what the law claims to be an obligation. It is no obligation except according to the claims of the law. It does not follow that we should think of such an obligation, as Holmes and Llewellyn thought, as merely an ‘obligation’ in scare-quote marks. Nor should we think that it is an obligation only in some specialised legal sense, as Hart and Kelsen sometimes suggested. It is, according to law, an obligation. Hence: a legal obligation. No scare quote marks required.

3:AM: Are you saying that rationality requires moral requirements? And isn’t this close to what the ‘Natural Law’ people say? It sounds like something John Finnis would agree with doesn’t it?

JG: I say that moral reasons are reasons. One does not need some further reason to treat them as reasons. If rationality requires us to act for an undefeated reason (as I think it does) then rationality requires us to attend to applicable moral reasons like any other applicable reasons. We are irrational if we attend to non-moral reasons and refuse to attend to moral ones on the same footing. Some people say: Why be moral? But one might as well ask: What reason does one have to care about reasons? The question answers itself as soon as one understands the categories that it invokes.

Is this the same as John Finnis’s thesis that basic goods are self-evident? Certainly not. I am not sure that any goods are self-evident and I am not sure that any are basic in the sense that Finnis has in mind. I do think some things are good independently of whether anyone judges them good. This may make me more of an in-your-face moral realist than Finnis is. Unlike him, I don’t feel the need to appeal to either basicness or self-evidence as part of my case for moral reality. In that way I am not as meta-ethically defensive as he is.

What does any of this have to do with Natural Law? Mill, to take an example at random, is never called a Natural Lawyer by anyone. But he is clearly in-your-face moral realist who agrees with me that it is rational to be moral.

I take it that Natural Lawyers are not distinguished by their meta-ethical views. They are distinguished by their views on how morality and law are related. In an article called Nearly Natural Law (which appears as chapter 6 of Law as a Leap of Faith) I express a great deal of sympathy for most (though not all) of Finnis’s views on this front. I merely add that, whenever they are right, they are consistent with LP.

3:AM: You don’t think justice is the first amongst the virtues of the law or legal systems do you? Why do you limit the scope of Justice as you do?

JG: Justice is but one moral virtue among many. I am interested, among other things, in which moral virtue it is. For many years I was equally interested in charity, which is another moral virtue. Few disagree that justice can be contrasted with charity, and hence that the just person and the charitable person are contrasting types. But attempts to analyse the contrast between them have mostly been hopeless. I began my work on this topic many years ago by thinking about the differences of opinion between just people and charitable people, noting that the just person is interested, as the charitable person is not, in whether people get all and only what is due to them. A lot of modern writers in political philosophy have assumed (though rarely argued) that all questions of public morality boil down to questions of what is due to people and how to get it to them, or (as I have also expressed it) questions of propriety in allocation. Many others have said: questions of propriety in allocation, although not the only questions of public morality, do take priority in public morality. I have set myself against both these views (the exclusivity view and the primacy view). I know of no reason to think that public officials are primarily let alone exclusively in the business of allocation, and I very much regret the contemporary tendency to convert every question in public affairs into an allocative question, a question of justice.

However judges are primarily in the business of allocation. This is something they have in common with arbitrators, as indeed with sporting umpires and referees. Adjudication, in all but the rarest of cases, is a matter of deciding who wins and who loses. Since there is no legal system without adjudication, this shows an intimate connection between law and justice. Judges should be just above all. What this does not entail is that the law should be just above all. Indeed it shows one of the risks of excessive juridification, namely that the law and the rest of public policy will become excessively preoccupied with justice because everything in law and public policy will be seen from the start as a potential site for litigation and hence adjudication. That is regrettable. I am all for access to the courts, and generous legal aid to make it possible. But I am quite unhappy about the rest of public affairs being conducted on the model of litigation. In my view, the Rawlsian tradition in political philosophy has given succour to this way of modelling public affairs, even if Rawls himself saw a much more limited role for the primacy of justice. (Or did he? It isn’t at all clear.)

3:AM: Your last book is called “Law as a Leap of Faith’, and is the title of one of the essays inside. You’re working there with ideas of Hans Kelsen and the title refers to a Kierkegaardian idea too doesn’t it? So could you say what you mean when you argue that law is a leap of faith? Doesn’t it take law outside of the space of reasons, which sounds like an invitation for arbitrary law? And do you endorse this conception, or just saying that’s what it turns out to be?

JG: Yes, I do connect Kelsen with Kierkegaard, mostly in respect of their understanding of normative ‘points of view’, of which the point of view of the law is one. Kelsen and Kierkegaard, however, tended towards an ultimate normative irrationalism. They thought that normative questions were always questions from within a point of view, and could not be point-of-view transcending questions about which point of view to adopt. Here I part company with them, and in the process bring faith in God, as well as faith in law, back into contact with rationality. However I give Kelsen and Kierkegaard full credit for noticing what might be called the rationality gap, viz. that one’s reasons for adopting a certain point of view (sufficient to warrant doing what from that point of view one should do) need not be reasons for doing those very things had one not adopted the point of view in question. The adoption itself makes a difference. This is very important to my entire way of thinking about law, and about many other topics in practical life. We often align ourselves with particular people or institutions or systems of thought to guide us through life. Doing so may be rationally eligible without being rationally required. But by aligning ourselves with these systematic guides, we may make certain actions rationally required that would otherwise have been merely eligible. Perhaps, like Abraham, we may occasionally even make certain actions rationally required that would otherwise have been ineligible.

You may call this ‘arbitrary’. If so it is arbitrary in the sense in which arbitration is arbitrary (see above), namely in a non-pejorative sense. We need to arbitrate in the relevant sense because rationality is pervasive and inescapable, but radically indeterminate. It tells us what counts towards what we should do and how to count it, and it often rules out doing certain things. But it only rarely tells us what, in the round, to do. That is the rationality gap. We usually fill the gap for ourselves by rationally acceptable but not rationally determined commitment: by decision, promise, self-identification, and other determinacy-adding measures. Timothy Macklem and I have written together about this feature of the human predicament. He and I are old pals and we see these things in pretty similar ways.

3:AM: Your essay ‘The Wrongness of Rape’ is a great example of your philosophy of criminal law in action. So what exactly is wrong with rape – and what is wrong with some alternative claims about the wrongness of rape?

JG: When Stephen Shute and I wrote that essay we were drawn to a rather Kantian answer. Rape is wrong as sheer use of a person. It is not the only sheer use of a person (of course) but like slavery it is one, the social meaning of which lends a special moral significance to it. At this stage in the story, you will notice, consent is not of the essence. People may freely put themselves forward for sheer use (think of prostitution or pornographic performance) and that sheer use is in the same branch of immorality as rape. Nevertheless consent comes in with great importance at the next stage. People have an autonomy-based right, or sometimes they do, to put themselves forward for sheer use. We thought that sexual autonomy had particular importance, enough importance to protect consensual sexual activities even of a mutually sheer-using variety. So – we concluded – while (consenting) prostitute-use is in the same branch of immorality as rape, the law should not prohibit it (or for that matter consensual prostitution itself).

I still think that this answer is in the right neighbourhood. I am not as confident about the details as once I was. However I do stand by an important critical position that Steve and I took. We criticised those who regard the wrongness of rape as stemming primarily from the negative experiences of those who are raped, from how bad rape seems to them. We thought, and I still think, that before we give credence to how bad rape seems to those who are raped we had better be sure that there is something wrong with rape independently of how it seems to those who are victims of it, such that the way it seems to them is rationally defensible. I had a terrific exchange with Danny Statman about some aspects of this critique in a recent symposium about my 2007 book Offences and Defences. Danny took me to task for demanding too much in the way of rational explanation for our feeling humiliated. I took him to task for failing to notice that our actually being humiliated is exactly the rational explanation we need for our feeling humiliated.

3:AM: And finally, are there five books you could recommend to our readers which would take us further into your philosophical world?

JG: Aristotle, Nicomachean Ethics. H.L.A. Hart, The Concept of Law (Oxford 1961). Joseph Raz, Practical Reasons and Norms (London 1975). Bernard Williams, Moral Luck (Cambridge 1981). Martha Nussbaum, The Fragility of Goodness.

Richard Marshall is still biding his time.

First published in 3:AM Magazine: Friday, September 6th, 2013.